Opinion
No. CV 09-8056-PCT-SMM (MEA).
May 5, 2009
ORDER
On March 30, 2009, Petitioner Forrest Dunbar filed a "Writ of Habeas Corpus" and paid the $5.00 filing fee. In an April 2, 2009 Order, the Court dismissed the Petition because it was not filed on the court-approved form and gave Plaintiff 30 days to file an amended petition on the court-approved form.
On April 29, 2009, Plaintiff filed an Amended Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. #4). The Court will dismiss the Amended Petition for lack of jurisdiction and because the Amended Petition is premature.
I. Amended Petition
Petitioner was convicted in Yavapai County Superior Court, case #CR-2003-0489 and #CR-2003-1284, of forgery and leaving the scene of an accident. He was sentenced to consecutive 2.5-year terms of imprisonment. In his Amended Petition, Petitioner names former Director of the Arizona Department of Corrections Dora Schriro as Respondent and the Arizona Attorney General as an Additional Respondent.
The Court takes judicial notice that Dora B. Schriro is no longer Director of the Arizona Department of Corrections (ADOC). The Court will substitute the new Director of the ADOC, Charles L. Ryan, as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.
Petitioner raises one ground for relief — "[p]ursuant to title 41 1604.10(d) [of the Arizona Revised Statutes] . . . Petitioner is being held on community supervision outside the legal parameters within this title." Plaintiff affirmatively states that he has not presented this issue to the Arizona Court of Appeals, alleging that it is "a question of protected good time credits post release."
II. Lack of Personal Jurisdiction
Section 2254(a), 28 U.S.C., requires the Court to "entertain an application for a writ of habeas corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (emphasis added.) Petitioner does not allege that he is in custody in violation of the Constitution or the laws or treaties of the United States, but rather he alleges a violation of state law. Thus, the Court lacks jurisdiction over this case.
III. Exhaustion of State Remedies
Before the court may grant habeas relief to a state prisoner, the prisoner must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The federal court will not entertain a petition for writ of habeas corpus unless each and every issue has been exhausted.Rose v. Lundy, 455 U.S. 509, 522 (1982). To exhaust a claim, a petitioner must describe both the operative facts and the federal legal theory so that the state courts have a "fair opportunity" to apply controlling legal principles to the facts bearing on his constitutional claim. Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003). In cases not carrying a life sentence or death penalty, claims are exhausted once the Arizona Court of Appeals has ruled on them. Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). The failure to exhaust subjects the Petitioner to dismissal. See Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983).
A state-court petition for post-conviction relief can be used if "[t]he person is being held in custody after the sentence imposed has expired." Ariz. R. Crim. P. 32.1(d). Alternatively, if the sentence imposed has not expired, a state-court petition for special action may be appropriate. See Crumrine v. Stewart, 24 P.3d 1281, 1282 (Ariz.App. 2001) (noting that trial court had construed a state-court petition for habeas corpus regarding the application of earned release credits as a petition for special action and stating that, in order to obtain special action relief, the petitioner was required to show that the Director of the Arizona Department of Corrections "failed to exercise his discretion, failed to perform a duty as to which he had no discretion, or abused his discretion"). Thus, Petitioner's Amended Petition is premature, and the Court will dismiss it without prejudice.
IT IS ORDERED:
(1) Charles L. Ryan, Director of the ADOC, is substituted as Respondent for Dora B. Schriro pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Further proceedings in this action must name Charles L. Ryan as Respondent.
(2) Petitioner's Amended Petition for Habeas Corpus (Doc. #4) and this case are dismissed without prejudice. The Clerk of Court must close this case and issue judgment accordingly.