Petition for Writ of Certiorari — Giuseppe Viola, aka Joseph John Viola, Petitioner v. David Shinn, Director, Arizona Department of Corrections, Rehabilitation and Reentry, et al.

Supreme Court briefJul 7, 2021

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UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

JAN 14 2021

GIUSEPPE VIOLA, AKA Joseph John

Viola,

Petitioner-Appellant,

No.

20-16654

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

D.C. No. 2:20-cv-01107-DJH-MHB

District of Arizona,

Phoenix

ORDER

DAVID SHINN, Director; EDWIN

JENSEN,

Respondents-Appellees.

Before:

THOMAS, Chief Judge, and BRESS, Circuit Judge.

The request for a certificate of appealability (Docket Entry No. 2) is denied

because appellant has not shown that “jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district court was correct

in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,484 (2000); see also 28

U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 565 U.S. 134, 140-41 (20l2); Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003); United States v. Winkles, 795 F.3d 1134, 1143

(9th Cir. 2015); Lynch v. Blodgett, 999 F.2d 401, 403 (9th Cir. 1993) (order).

Any pending motions are denied as moot.

DENIED.

Case: 2:20-cv-01107-DJH--MHB

Document5

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ASH

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Giuseppe Viola,

Petitioner.

David Shinn, et al.,

No. CV-20-01107-PHX-DJH (MHB)

ORDER

Respondents.

Petitioner Giuseppe Viola, who is confined in the Arizona State Prison Complex-

Yuma, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.

§ 2241 (Doc. 1), an Application to Proceed In Forma Pauperis (Doc. 2), and an Emergency

Motion for Temporary Restraining Order (Doc. 3). The Court will deny the motion, and

dismiss the Petition and this action.

Petitioner’s Application to Proceed In Forma Pauperis indicates that his inmate trust

Application to Proceed In Forma Pauperis

account balance is less than $25.00.

Accordingly, the Court will grant Petitioner’s

Application to Proceed In Forma Pauperis. See LRCiv 3.5(b).

II.

Petition

Petitioner was convicted in Maricopa County Superior Court, case #CR 1990-

010323, of five counts of fraudulent schemes and artifices; his current projected release

date is in 2041.1

See Arizona Department of Corrections “Inmate Datasearch” (available at

https://corrections.az.gov/public-resources/inmate-datasearch) (search for ^Inmate No.

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Petitioner also notes that he was previously convicted in the United States District

Court for the Northern District of California, case no. CR 10-00588-EJD, of one count of

mail fraud, for which he was sentenced to 105 months of imprisonment to be served

concurrently with Ms sentences in Maricopa County case no. CR 1990-010323 and in the

custody of the Arizona Department of Corrections. Petitioner further notes that “[djuring

the past year, the federal term of imprisonment was terminated ... leaving only the Arizona

sentence.” As such, Petitioner is currently incarcerated solely on his state convictions.

In his Petition, Petitioner names David Shinn as Respondent and the Arizona

Attorney General as an Additional Respondent. Petitioner seeks release from prison due

to the ongoing COVID-19 pandemic, asserting that because he is elderly and has an

underlying heart condition, he is likely to suffer severe consequences if he contracts the

virus.

III.

Failure to Allege a Constitutional Violation

Section 2241(c)(3), 28 U.S.C. empowers a federal court to grant habeas corpus relief

when a prisoner is “in custody in violation of the Constitution or laws or treaties of the

United States.” This power is circumscribed for prisoners —- like Petitioner

state custody by 28 U.S.C. § 2254(a), which 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.” (Emphasis added.)

who are in

Here, Petitioner seeks relief “as provided by” 18 U.S.C. § 3624(c)(2) and 34 U.S.C.

§ 60541(g)(5)(a). However, as noted previously, Petitioner has completed his federal

sentence, and is no longer in federal custody. For that reason, 18 U.S.C. § 3624(c)(2) and

34 U.S.C. § 60541(g)(5)(a) do not apply to Petitioner’s current incarceration.2

Accordingly, Petitioner’s only basis for relief is 28 U.S.C. § 2241, but, because he is a state

050936”) (last visited June 8, 2020).

2 18 U.S.C. § 3624(c)(2) provides forprelease of prisoners in the custody of the

federal Bureau of Prisons. Similarly, 34 U.S.Ct § 60541(g)(5)(a) establishes a program for

the release of elderly “federal prisoners. ” Petitioner is neitner in the custody of the federal

Bureau of Prisons, nor is he a federal prisoner.

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prisoner, to be entitled to habeas relief under § 2241 he must demonstrate that he is “in

custody in violation of the Constitution or laws or treaties of the United States.” Absent

from Petitioner’s grounds for relief is any statement that he is in custody in violation of the

Constitution or the laws or treaties of the United States. Rather, as noted, Petitioner only

seeks relief “as provided by” 18U.S.C. § 3624(c)(2) and 34U.S.C. § 60541(g)(5)(a), which

do not apply to him. Thus, the Court lacks jurisdiction over this case.

Further, “§ 2254 is the exclusive avenue for a state prisoner challenging the

constitutionality of his detention ... even if the petitioner is not challenging the underlying

state court conviction .. . so long as the person is in custody pursuant to the judgment of a

state court.” Frosty. SCI Albion, 2011 WL 4502835, *3 (W.D. Pa. Sept. 28, 2011) (citing

Felker v. Turpin, 518 U.S. 651, 662 (1996) (“Our authority to grant habeas relief to state

prisoners is limited by § 2254, which specifies the conditions under which such relief may

be granted to “a person in custody pursuant to the judgment of a State court.”)). The

majority of district courts to address similar petitions filed by state court prisoners seeking

relief due to the threat COVID-19 poses to them have treated such petitions as seeking

relief under 28 U.S.C. § 2254 and have dismissed for failure to exhaust. See e.g. Denbow

v. Maine Dep'tofCorr., No. I:20cv00175, 2020 WL 3052220, at * (D. Me. June 8, 2020)

(denying TRO sought by state prisoner pursuant to § 2241 and applying § 2254

requirements to petition); Bussinger v. Gramp, No. 20cv05600, 2020 WL 2989080, at *1

(D. N.J. June 3, 2020) (dismissing state prisoner’s § 2241 petition for lack of jurisdiction

and noting subject to dismissal for lack of exhaustion); Brooks v. Wolcott, No. 20cv00516,

2020 WL 2553030, at *5 (W.D. N.Y. May 20, 2020) (converting § 2241 petition filed by

state prisoner to § 2254 petition under circuit law); Frazier v. Kelley, No. 4:20cv00434,

2020 WL 2561956, at *1 (E.D. Ark. May 19,2020) (denying preliminary injunction sought

by state prisoners in proposed class action under § 1983 and § 2241); Griffin v. Cook, No.

3:20cv00589, 2020 WL 2735886, *1 (D. Conn. May 6, 2020) (dismissing § 2254 petition

seeking relief based upon threat of covid to vulnerable petitioner for failure to exhaust and

absent showing exhaustion futile); Makin v. Wainwright, No. 3:20cv00912, 2020 WL

-3:

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2085141, at *1 (N.D. Ohio Apr. 30, 2020) (§ 2241 petition construed under § 2254 and

dismissed for lack of exhaustion).

Asa result, because the Petition challenges Petitioner’s custody pursuant to a state

court judgment, this Court does not have jurisdiction under § 2241 to hear his claims.

Because this defect cannot be cured by amendment, the Court will dismiss this action.3

IT IS ORDERED:

(1)

Petitioner’s Application to Proceed In Forma Pauperis (Doc. 2) is granted.

(2)

Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) and this action are

dismissed for lack of jurisdiction, and the Clerk of Court must enter judgment accordingly.

(3)

denied as moot.

(4)

Petitioner’s Emergency Motion for Temporary Restraining Order (Doc. 3) is

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

3 The Court further notes that before it may grant habeas corpus relief to a state

irisoner, 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 11999). An Arizona petitioner

sentenced to less than the death penalty may exhaust his federal claims by presenting them

in a procedurally proper way to the Arizona Court of Appeals on direct appeal and/or m

post-conviction proceedings, without seeking discretionary review in the Arizona Supreme

Court. Crowell v. Knowles, 483 F. Supjp. 2a 925, 928-30, 933 (D. Ariz. 2007) (following

1989 statutory amendment, Arizona Court of Appeals has jurisdiction over criminal

convictions involving less than a death sentence);

Swoopes v. Sublett, 196 F.3d 1008,

1010 (9th Cir. 1999) (citing pre-1989 statute). To exhaust a claim, a petitioner must

describe “both the operative facts and the federal legal theory on which his claim is based

so that the state courts [could] have a ‘fair opportunity’ to apply controlling legal principles

to the facts bearing upon his constitutional claim.” Castillo v. McFadden, 399 F.3d 993,

999 (9th Cir. 2005) (quoting Kelly v. Small, 315 F.3d 1063,1066 (9th Cir. 2003), overruled

in part on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007)). The failure

to exhaust subjects the Petition to dismissal. See Gutierrez v. Griggs, 695 F.2d 1195, 1197

(9th Cir. 1983).

If a prisoner has a direct appeal or initial petition for post-conviction relief pending

in state court, the federal exhaustion requirement is not satisfied. See Sherwood v. Tomkins,

716 F.2d 632, 634 (9thCir. 1983) (pending appeal); Schnepp v. Oregon, 333 F.2d 288, 288

(9th Cir. 1964) (pending post-conviction proceeding); see also Henderson v. Johnson, 710

F.3d 872, 874 (9th Cir. 20131 (‘Sherwood stands for the proposition that a district court

may not adjudicate a federal habeas petition while a petitioner’s direct state appeal is

lending”). The prisoner must await the outcome of the pending state-court challenge

before proceeding in federal court, “even where the issue to be challenged in the writ of

rabeas corpus has been finally settled in the state courts.” Sherwood, 716 F.3d at 634.

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Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Dated this 10th day of June, 2020.

Filed 06/10/20

Page 5 of 5

ii6norablel'Dian<£d'. HurafeteUnited States District Judge

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UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

FEB 10 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

GIUSEPPE VIOLA, AKA Joseph John

Viola,.

Petitioner-Appellant,

No.

20-16654

D.C. No. 2:20-cv-01107-DJH-MHB

District of Arizona,

Phoenix

ORDER

DAVID SHINN, Director; EDWIN

JENSEN,

Respondents-Appellees.

Before:

McKEOWN and BUMATAY, Circuit Judges.

Appellant’s motion for reconsideration en banc (Docket Entry No. 6) is

denied on behalf of the court. See 9th Cir. R. 27-10; 9th Cir. Gen. Ord. 6.11.

No further filings will.be entertained in this closed case.

Additional material

from this filing is

available in the

Clerk's Office.

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