1 2 3 4 5 6 7 8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10 11 GEORGE ALEJANDRO ) Case No. 5:21-cv-01652-JWH-JC 12 HERNANDEZ, ) ) 13 Petitioner, ) ORDER TO SHOW CAUSE WHY THIS ) ACTION SHOULD NOT BE DISMISSED 14 v. ) ) 15 THE PEOPLE OF THE STATE )

OF CALIFORNIA, )

16 ) Respondent. ) 17 18 I. PROCEEDINGS 19 On September 27, 2021, petitioner George Alejandro Hernandez, a detainee 20 awaiting trial at the Robert Presley Detention Center in Riverside, California, who 21 is proceeding pro se, filed a Petition for Writ of Habeas Corpus with attached pages 22 (“Petition”). (Docket No. 1). The Petition is directed to the “Supreme Court of 23 California” in Washington, D.C., and has been stamped received by the Office of 24 the Clerk of the United States Supreme Court. (Petition at 1).1 The Petition 25 purports to challenge, inter alia, jail conditions and convictions/sentences in three 26 27 1A search of the Supreme Court docket available online at https://www.supremecourt. 28 gov/docket/docket.aspx did not yield any results for petitioner. 1 separate Riverside County Superior Court criminal cases – Case Nos. 2 BAF2000069, RIM1607083, and BAF1900127. (Petition at 2). The Petition is 3 difficult to read and not a model of clarity but appears to allege that: (1) in Case 4 No. BAF2000069 petitioner’s constitutional rights were violated by deliberate 5 government interference with his confidential relationship with his defense 6 counsel; (2) in Case No. BAF1900127 petitioner’s constitutional rights were 7 violated by “false claims reporting violation of probation conditions”; and (3) in 8 Case No. RIM1607083 petitioner’s constitutional rights were violated by an 9 unreasonable search and seizure. (Petition at 3). Petitioner also generally alleges 10 that his pretrial housing is “improper” and that he has suffered multiple assaults 11 and head trauma in detention for which he has received negligent, inadequate or 12 improper medical treatment, and that peace officers violated his civil rights by 13 administering a blood test by force following a traffic collision in which petitioner 14 was injured. (Petition at 3-4, 6). Petitioner indicates that he has not appealed his 15 conviction, sentence or commitment, has not sought review from the California 16 Supreme Court, and has not sought administrative review. (Petition at 5-6 (noting 17 his wish to have the United States Supreme Court “launch an investigation before 18 any conviction”)). Petitioner also indicates that he is represented by counsel in his 19 pending state court proceedings. (Petition at 6). Petitioner has attached to the 20 Petition: (1) copies of letters and notes addressed to various people and a letter to 21 the United States Supreme Court about his case; (2) a Riverside County Jail Inmate 22 Grievance Form complaining of head injuries from multiple assaults; and (3) non- 23 conformed copies of a petition for writ of certiorari and a motion for leave to 24 proceed in forma pauperis directed to the United States Supreme Court dated 25 August 9, 2021. (Petition at CM/ECF page nos. 7-36). 26 II. DISCUSSION 27 Rule 4 of the Rules Governing Section 2254 Cases in the United States 28 District Courts (“Habeas Rules”) allows a district court to dismiss a petition if it 2 1 |“plainly appears from the petition and any attached exhibits that the petitioner is 2 not entitled to relief in the district court... Rule 4 of the Habeas Rules. Based 3 the Petition and the pertinent law, and for the reasons discussed below, the 4 orders petitioner to show cause why the Petition and this action should not 5 dismissed. 6 A. The Petition Fails to Name a Proper Respondent 7 A petitioner seeking federal habeas relief must name the proper respondent. 8 Federal courts lack personal jurisdiction when a habeas petition fails to name a 9 |lproper respondent. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) 10 |(citations omitted). A petitioner seeking habeas corpus relief must name the 11 jjofficial having custody of him as the respondent to the petition. See 28 U.S.C. 12 2242, 2243; Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004) (the custodian is 13 person with the ability to produce the prisoner’s body before the habeas 14 court’; internal quotation marks omitted). Where a petitioner is a state pretrial 15 detainee, as here, the proper respondent is the Sheriff as the immediate custodian. 16 Devaughn v. Cooley, 2009 WL 224060, at *2 (C.D. Cal. Jan. 29, 2009) 17 |\(citations omitted). 18 Here, petitioner improperly names the People of the State of California as 19 lrespondent. Petitioner’s failure to name a proper respondent subjects the Petition 20 |to dismissal for lack of personal jurisdiction. Stanley v. California Supreme Court, 21 21 F.3d 359, 360 (9th Cir. 1994); Olson v. California Adult Auth., 423 F.2d 1326, 22 11326 (9th Cir. Cir.), cert. denied, 398 U.S. 914 (1970). 23 B. The Petition Appears to Challenge Multiple Judgments 24 To the extent the Petition intends to challenge the judgments in Riverside 25 ||\County Superior Court Case Nos. BAF2000069, RIM1607083, and BAF1900127, 26 jit violates Rule 2(e) of the Habeas Rules which provides: “A petitioner who seeks 27 from judgments of more than one state court must file a separate petition 28 covering the judgment or judgments of each court.”

1 C. The Petition Appears to Be Unexhausted 2 As noted above, the Petition affirmatively reflects that petitioner has not 3 |lexhausted his claims which may challenge his convictions and/or sentences by 4 them first with the state courts. (Petition at 5). As a matter of comity, a 5 federal court will not entertain a habeas corpus petition unless the petitioner has 6 exhausted the available state judicial remedies on every ground presented in the 7 |lpetition. Rose v. Lundy, 455 U.S. 509, 518-22 (1982); O’Sullivan v. Boerckel, 526 8 U.S. 838, 842 (1999); Park v. California, 202 F.3d 1146, 1150 (9th Cir.), cert. 9 |denied, 531 U.S. 918 (2000). 10 Title 28, United States Code, section 2254(b)(1), explicitly provides that a 11 habeas petition brought by a person in state custody shall not be granted unless it 12 ljappears that: (A) the applicant has exhausted the remedies available in the courts 13 lof the State; or (B)(i) there is an absence of available State corrective process; or 14 circumstances exist that render such process ineffective to protect the rights of 15 applicant. 16 Exhaustion requires that a petitioner’s contentions be fairly presented to the 17 courts, and be disposed of on the merits by the highest court of the state. See 18 |Baldwin v. Reese, 541 U.S. 27, 29 (2004); James v. Borg, 24 F.3d 20, 24 (9th Cir.), 19 denied, 513 U.S. 935 (1994). A claim has not been fairly presented unless the 20 |lpetitioner has described in the state court proceedings both the operative facts and 21 |the federal legal theory on which his claim is based. Duncan v. Henry, 513 U.S. 22 365-66 (1995); Anderson v. Harless, 459 U.S. 4, 6 (1982); Weaver v. 23 ||Thompson, 197 F.3d 359, 364 (9th Cir. 1999). 24 Generally, a claim has not been fairly presented if it has been raised “in a 25 procedural context in which its merits will not be considered.” Castille v. Peoples, 26 U.S. 346, 351 (1989). If, however, it is clear that a claim is procedurally 27 |barred under state law, then no state remedies remain available and the requisite 28 |lexhaustion exists. See Castille v. Peoples, 489 U.S. at 351-52; Johnson v. Zenon,

1 188 F.3d 828, 831 (9th Cir. 1996). Here, while petitioner has included with the 2 ||Petition a copy of a petition for certiorari addressed to the United States Supreme 3 Court, such a petition will not exhaust any claims that petitioner may raise 4 |iconcerning the Riverside County Superior Court judgments. On the current record, 5 jit appears that the Petition is unexhausted and therefore subject to dismissal. See 6 |[Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“Once a district court 7 |\determines that a habeas petition contains only unexhausted claims, it need not 8 inquire further as to the petitioner’s intentions. Instead, it may simply dismiss the 9 |lhabeas petition for failure to exhaust.”) (citation omitted). 10 D. The Petition Appears to Raise a Non-Cognizable Fourth 11 Amendment Claim Challenging a California Criminal Proceeding 12 To the extent petitioner intends to claim that in Riverside County Superior 13 Case No. RIM1607083, his Fourth Amendment rights were violated by an 14 lunreasonable search and seizure, such claim is not cognizable in federal habeas 15 proceedings and is subject to dismissal on such basis. 16 Where the state has provided an opportunity for full and fair litigation of a 17 Fourth Amendment claim, a state prisoner may not be granted habeas corpus relief 18 jon the ground that evidence obtained in an unconstitutional search or seizure was 19 llintroduced at his trial. See Stone v. Powell, 428 U.S. 465, 494 (1976); Newman v. 20 |Wengler, 790 F.3d 876, 878 (9th Cir. 2015) (Stone survived the passaged of the 21 ||Antiterrorism Effective Death Penalty Act and bars a Fourth Amendment claim on 22 |\federal habeas review where a petitioner had a full and fair opportunity in state 23 to litigate such claim). California affords criminal defendants the opportunity 24 |for full and fair litigation of Fourth Amendment claims. Gordon v. Duran, 895 25 610, 613 (9th Cir. 1990). “The relevant inquiry is whether the petitioner had 26 |the opportunity to litigate his claim, not whether he did in fact do so or whether the 27 was correctly decided.” Ortiz-Sandoval v. Gomez, 81 F.3d at 899 (citations 28 |lomitted).

1 E. __ Petitioner’s Challenges to the Conditions of His Confinement Are 2 Not Cognizable on Federal Habeas Review and Are More 3 Properly Raised in a Civil Rights Action 4 “Federal law opens two main avenues to relief on complaints related to 5 imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint 6 funder... 42 U.S.C. § 1983.” Muhammad v. Close, 540 U.S. 749, 750 (2004) (per 7 |icuriam); Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc), cert. 8 denied, 137 S. Ct. 645 (2017). “[H]abeas corpus is the exclusive remedy for a state 9 [prisoner who challenges the fact or duration of his confinement and seeks 10 immediate or speedier release,” Heck v. Humphrey, 512 U.S. 477, 481 (1984); see 11 jlalso Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (“[W]hen a state prisoner is 12 challenging the very fact or duration of his physical imprisonment, and the relief he 13 is a determination that he is entitled to immediate release or a speedier 14 |release from that imprisonment, his sole federal remedy is a writ of habeas 15 |lcorpus.”), while “a § 1983 action is the exclusive vehicle for claims brought by 16 prisoners that are not within the core of habeas corpus[,]” i.e., claims that do 17 not “challenge[ | the fact or duration of the conviction or sentence[.]” Nettles, 830 18 at 927, 934; see also Muhammad, 540 U.S. at 750 (“Challenges to the validity 19 lof any confinement or to particulars affecting its duration are the province of 20 |habeas corpus; requests for relief turning on circumstances of confinement may be 21 |lpresented in a § 1983 action.” (citation omitted)). 22 Here, to the extent petitioner is seeking to assert claims which challenge the 23 conditions of his current confinement and the medical treatment he has received 24 in custody, such claims do not raise a core habeas claim, are not cognizable 25 jon federal habeas review, and are inappropriately joined with petitioner’s 26 |challenges to the state court judgments in Riverside County Superior Court Case 27 |INos. BAF2000069, RIM1607083, and BAF1900127. Nettles, 830 F.3d at 927; see 28 |lalso Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003) (“[H]abeas jurisdiction

1 absent, and a § 1983 action proper, where a successful challenge to a prison 7 ||condition will not necessarily shorten the prisoner’s sentence.”), cert. denied, 541 3 U.S. 1063 (2004); Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (habeas corpus 4 |[proceedings are the proper mechanism for challenging the legality or duration of 5 confinement, while a civil rights action is the proper method to challenge 6 |conditions of confinement); Crawford v. Bell, 599 F.2d 890, 891-92 (9th Cir. 1979) 7 |C‘[T]he writ of habeas corpus is limited to attacks upon the legality or duration of g confinement. Crawford’s petition . . . alleges that the terms and conditions of his g |incarceration constitute cruel and unusual punishment, violate his right to due 10 |[Process, and invade his constitutionally protected privacy. The appropriate remedy 11 |for such constitutional violations, if proven, would be a judicially mandated change 12 conditions and/or an award of damages, but not release from confinement.” 13 |(citations omitted)).’ 14 Dy 16 *Although a district court, after notifying and obtaining informed consent from a prisoner, 17 || may construe a habeas petition to plead a civil rights claim if the petition is amenable to conversion on its face, see Nettles, 830 F.3d at 935-36, the Court should decline to do so here. A 18 || “habeas corpus action and a prisoner civil rights suit differ in a variety of respects — such as the 19 |] Proper defendant, filing fees, the means of collecting them, and restrictions on future filings — that may make recharacterization impossible or, if possible, disadvantageous to the prisoner 20 || compared to a dismissal without prejudice of his petition for habeas corpus.’” Id. (citation 1 omitted). In this case, the Petition is not amenable to conversion on its face since it names neither the correct defendants nor seeks relief appropriate for a civil rights complaint. See id. at 22 || 936 (‘Ifthe complaint is amenable to conversion on its face, meaning that it names the correct defendants and seeks the correct relief, the court may recharacterize the petition so long as it 23 || warns the pro se litigant of the consequences of the conversion and provides an opportunity for 24 the litigant to withdraw or amend his or her complaint.’” (citation omitted)). Indeed, petitioner has not clearly identified any specific “defendants,” and the named respondent — the People of 25 || the State of California (see Petition at 1) — is immune from suit in a Section 1983 action. See Dittman v. State of California, 191 F.3d 1020, 1025-26 (9th Cir. 1999) (“The State of California has not waived its Eleventh Amendment immunity with respect to claims brought under § 1983 27 || in federal court, and the Supreme Court has held that ‘§ 1983 was not intended to abrogate a State’s Eleventh Amendment immunity[.]’” (citation omitted)), cert. denied, 530 U.S. 1261 28 || (2000).

1 In light of the foregoing, any claims petitioner may be seeking to raise 2 challenging the conditions of his confinement in these habeas proceedings are 3 subject to dismissal. 4 III. CONCLUSION AND ORDER 5 In light of the foregoing, petitioner is ORDERED TO SHOW CAUSE by not 6 later than November 17, 2021, why the Petition and this action should not be 7 dismissed on the foregoing bases. Petitioner is advised that he has the right to 8 submit declarations, affidavits, or any other relevant evidentiary materials with his 9 response to this Order to Show Cause. All affidavits and declarations must be 10 signed under penalty of perjury by persons having personal knowledge of the facts 11 stated in the affidavits or declarations. 12 Instead of filing a response to the instant Order to Show Cause, petitioner 13 may request a voluntary dismissal of this action pursuant to Federal Rule of Civil 14 Procedure 41(a). If he elects to proceed in that manner, he may sign and return the 15 attached Notice of Dismissal. However, petitioner is advised that any dismissed 16 claims may later be subject to dismissal with prejudice as time-barred under 17 28 U.S.C. § 2244(d)(1). 18 Petitioner is cautioned that the failure timely to respond to this Order to 19 Show Cause and/or to show good cause may result in the dismissal of the 20 Petition and this action based on one or more of the deficiencies in the Petition 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 8 1 identified above, petitioner’s failure to comply with the Court’s order, and/or 2 petitioner’s failure to prosecute. 3

IT IS SO ORDERED.3

4 5 DATED: October 27, 2021 6 7 _____________/s/____________________ 8 Honorable Jacqueline Chooljian

UNITED STATES MAGISTRATE JUDGE

9 Attachment 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 3The Court’s determinations and order herein constitute non-dispositive rulings on 25 pretrial matters. To the extent a party disagrees with such non-dispositive rulings, such party may file a motion for review by the assigned District Judge within fourteen (14) days. See Local 26 Rule 72-2.1. To the extent a party believes the rulings to be dispositive, rather than non- 27 dispositive, such party has the right to object to this Court’s determination that the rulings are non-dispositive within fourteen (14) days. A party will be foreclosed from challenging the 28 rulings herein if such party does not seek review thereof, or object thereto. 9