Opinion
No. 2:15-cv-1677 KJN P
03-25-2016
FARAJI LAMONT LEE, Petitioner, v. FRED FIGUEROA, Respondent.
ORDER
I. Introduction
A petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 was filed on behalf of petitioner by Ira Lee, petitioner's dad. Petitioner did not sign the petition. However, on August 17, 2015, petitioner signed and filed a consent to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). On September 4, 2015, pursuant to court order, petitioner also signed and filed a request to proceed in forma pauperis. Examination of the affidavit reveals petitioner is unable to afford the costs of this action. Accordingly, leave to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).
II. "Next Friend" Standing
Under the Rules Governing Section 2254 Cases in the United States District Courts, a habeas petition must be "signed under penalty of perjury by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. § 2242." Rule 2(c)(5). Typically under the rule, the person authorized to sign on behalf of the petitioner is the petitioner's attorney. See Advisory Committee Notes to Rule 2 of the Rules Governing 2254 Cases.
Apart from a petitioner's attorney, a person designated as a petitioner's "next friend" would be authorized to sign a habeas petition on their behalf. See Whitmore v. Arkansas, 495 U.S. 149, 163 (1990). To qualify for "next friend" status, the person filing the petition on behalf of a petitioner would need to satisfy a two prong analysis. "Next friends" must first show that the person seeking relief is unable to litigate his or her own cause due to mental incapacity, lack of access to court, or some other disability. Coalition of Clergy, Lawyers, and Professors v. Bush, 310 F.3d 1153, 1159-60 (9th Cir. 2002). Second, the person claiming standing must demonstrate that they possess some significant relationship with, and is truly dedicated to the best interest of, the person seeking relief. Id.
The United States Supreme Court has recognized that "next friend" status has "long been an accepted basis for jurisdiction in certain circumstances," including habeas petitions. Whitmore, 495 U.S. at 162-63. However, courts must be critical when deciding to grant such standing. Due to the high stakes involved, and because successive habeas petitions cannot be filed, district courts must be certain that the habeas petition is authorized by the petitioner. For example, relatives are frequently granted "next friend" standing. See Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (recognizing "next friend" standing to father on behalf of son held as an enemy combatant); Gilmore v. Utah, 429 U.S. 1012, 1013-14 (1976) (granting "next friend" standing to mother on behalf of prisoner); U.S. ex rel. Toth v. Quarles, 350 U.S. 11, 13, 76 S. Ct. 1 (1955) (granting "next friend" standing to sister on behalf of prisoner in Korea).
However, the demonstration of a significant relationship with the petitioner alone is not enough, and both elements of the analysis are equally as important. See, e.g., Demosthenes v. Baal, 495 U.S. 731, 735, 110 S. Ct. 2223 (1990) (denying "next friend" standing to parents on behalf of prisoner when there was no showing of mental incompetence); Brewer v. Lewis, 989 F.2d 1021, 1026 (9th Cir. 1993) (holding a mother lacked next friend standing to bring a stay of execution because she failed to show "meaningful evidence that the condemned prisoner was suffering from a mental disease, disorder or defect that substantially affected his capacity to make an intelligent decision.") (internal quotations removed) (citing Whitmore, 495 U.S. at 166).
Here, although Ira Lee signed the word "Dad," next to the signature on the petition, Mr. Lee does not address why he is attempting to file the petition on petitioner's behalf. The subsequent filings by petitioner suggest that petitioner wishes to pursue habeas relief, but without his signature on the petition, it is unclear. Ira Lee explains that this is the second petition he has filed for his son, and appears to seek resentencing for his son based on Proposition 47. (ECF No. 1 at 16.)
III. Prior Habeas Petition
An earlier habeas petition, dated November 10, 2014, and also signed by Ira Lee, was dismissed based on petitioner's failure to pay the filing fee or file a request for leave to proceed in forma pauperis. Lee v. Figueroa, 2:14-cv-2724 MCE AC (E.D. Cal. Feb. 4, 2016). In the September 21, 2015 order, petitioner was informed as follows:
The Court must note, however, that it has reviewed both the petition filed in this action and the petition that Petitioner filed in case number 2:15-cv-01677-KJN. In both actions, it appears that Plaintiff is not seeking habeas relief under 28 U.S.C. § 2254. Rather, he appears to be requesting that his felony convictions be resentenced as misdemeanors pursuant to California Proposition 47 (2014). See ECF No. 1 (invoking Proposition 47 but not otherwise alleging that his custody is in violation of the Constitution, laws, or treaties of the United States). Cf. 28 U.S.C. § 2254(a) ("a district court shall entertain an application for a writ of habeas corpus in 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."). If that reading is correct, Petitioner has filed the wrong petition in the wrong court.
California Penal Code section 1170.18(a), which became effective upon the passage of Proposition 47 in November 2014, provides:
A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ("this act") had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act.
(emphasis added). Thus, if seeking relief under section 1170.18(a), Petitioner should file a petition for recall of sentence in the trial court that entered the judgment of conviction in his case (and not a petition for a writ of habeas corpus in this Court). Based on the documents attached to the Petition filed in this action, Petitioner should file a petition for recall of sentence in the Solano County Superior Court. See ECF No. 1 at 12 (a felony complaint bearing Petitioner's name and filed in Solano County Superior Court).[FN1]Lee v. Figueroa, 2:14-cv-02727 MCE AC (ECF No. 10 at 2-3).
[FN1: The Court expresses no opinion on whether Petitioner is eligible for resentencing under section 1170.18(a).}
Review of Solano County Superior Court records reflects that on September 16, 2015, petitioner's "petition for resentencing pursuant to Cal. Penal Code section 1170.18 was received. People v. Lee, Case No. FCR299992 (Solano County, Cal.), http://courtconnect.solano.courts.ca.gov/courtconnect/, accessed March 21, 2016. There is no indication on the Solano County docket that a decision has been rendered on the petition. Id. If petitioner has not yet received a decision on his petition for resentencing, petitioner should follow up with the Solano County Superior Court.
IV. Exhaustion of State Court Remedies
In any event, the California Supreme Court reflects no filing on behalf of petitioner. The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by respondent's counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).
The electronic dockets for the California Court of Appeal and the California Supreme Court. California Supreme Court were accessed through California Courts, < http://appellatecases.courtinfo.ca.gov >, accessed March 21, 2016.
A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 2254(b)(2).
V. Conclusion
Because it appears that the state court has not yet ruled on petitioner's request for resentencing, and, accordingly, petitioner has not exhausted his state court remedies as to such claim, it would be futile to grant petitioner leave to amend. The petition is dismissed without prejudice.
Petitioner is cautioned that the habeas corpus statute imposes a one year statute of limitations for filing non-capital habeas corpus petitions in federal court. In most cases, the one year period will start to run on the date on which the state court judgment became final by the conclusion of direct review or the expiration of time for seeking direct review, although the statute of limitations is tolled while a properly filed application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d). --------
Therefore, IT IS HEREBY ORDERED that:
1. Petitioner is granted leave to proceed in forma pauperis;
2. Petitioner's application for writ of habeas corpus is dismissed without prejudice.
3. In addition to serving petitioner, the Clerk of the Court is directed to send petitioner's father a copy of the instant order: Ira Lee, 2780 North Texas Street, #225, Fairfield, CA 94533. Dated: March 25, 2016
/s/_________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE /lee1677.114