United States District Court, D. Arizona
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 ...