Brabham v. State

          ORDER

          MICHAEL T. LIBURDI UNITED STATES DISTRICT JUDGE.

         Terry Lynell Brabham, Jr., who is confined in the Arizona State Prison Complex, Whetstone Unit, in Tucson, Arizona, has filed pro se document captioned as a “First Motion to Proceed for Habeas Corpus Relief as to Exhausted All State Court Remedies” (“Motion”). The Clerk of Court opened a civil case to facilitate consideration of Petitioner's Motion. The Court will deny the Motion and dismiss this case without prejudice to Petitioner commencing a new case by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, using the court-approved form, and either paying the $5.00 filing fee or filing an Application to Proceed In Forma Pauperis (Habeas), using the court-approved form.

         I. Habeas Corpus Relief

         A petitioner may file a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 if he believes that he was convicted or sentenced in violation of his constitutional rights. Federal habeas relief is available “only on the ground that [an inmate] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Thus, “[c]hallenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus . . . .” Muhammad v. Close, 540 U.S. 749, 750 (2004). Petitioner is informed that a one-year statute of limitation to file a federal habeas corpus petition runs from the latter of “the date on which the [state court] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review, ” 28 U.S.C. § 2244(d)(1), excluding “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2); see Woodford v. Garceau, 538 U.S. 202, 206-207 (2003); Isley v. Arizona Dep't of Corr., 383 F.3d 1054, 1055 (2004).^[1]

         Petitioner is further informed that a petitioner seeking habeas corpus relief under 28 U.S.C. § 2254 must name the state officer having custody of him as the respondent to the petition. See Rule 2(a), Rules Governing Section 2254 Cases; Belgarde v. Montana, 123 F.3d 1210, 1212 (9th Cir. 1997). Typically, this person is the warden of the institution where the petitioner is incarcerated. When a habeas petitioner has failed to name a respondent who has the power to order the petitioner's release, the Court “may not grant effective relief, and thus should not hear the case unless the petition is amended to name a respondent who can grant the desired relief.” Smith v. Idaho, 392 F.3d 350, 355 n.3 (9th Cir. 2004).

         Lastly, pursuant to Rule 3.5(a) of the Local Rules of Civil Procedure, a habeas corpus petitioner is required to use a court-approved form when he files a pro se petition pursuant to 28 U.S.C. § 2254. If Petitioner wishes to seek habeas corpus relief, he must commence a new case by filing a “Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty)” using the court-approved form. The Clerk of Court will send the court-approved form to Petitioner.

         II. Filing Fee

         Rule 3.5(b) of the Local Rules of Civil Procedure requires that “[i]f a habeas corpus petitioner desires to prosecute the petition in forma pauperis, the petitioner [must] file an application to proceed in forma pauperis on a form approved by the Court, accompanied by a certification of the warden or other appropriate officer of the institution in which the petitioner is confined as to the amount of money or securities on deposit to the petitioner's credit.” Rule 3.5(b) requires a petitioner to pay the $5.00 filing fee if the petitioner has in excess of $25.00 in his inmate account.

         If Petitioner wishes to seek habeas corpus relief, he must commence a new case by either paying the $5.00 filing fee or filing an Application to Proceed In Forma Pauperis (Habeas) using the court-approved form. The Clerk of Court will send the court-approved form to Petitioner.

         IT IS ORDERED:

         (1) Petitioner's “First Motion to Proceed for Habeas Corpus Relief as to Exhausted All State Court Remedies” (Doc. 1) is denied and this action is dismissed without prejudice.

         (2) The Clerk of Court must enter a judgment of dismissal without prejudice of this action.

         (3) Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court's procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

         (4) The Clerk of Court must mail Petitioner: (1) the court-approved form for filing a “Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty)”; and (2) the court-approved ...