(HC) Rodella v. Corcoran State Prison, No. 1:2007cv01567 - Document 5 (E.D. Cal. 2007)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the petition for writ of habeas corpus be dismissed because the petition does not allege grounds that would entitle Petitioner to habeas corpus relief. The court further recommends that the Clerk of Court be directed to send Petitioner the standard form for claims pursuant to 42 U.S.C. Section 1983 signed by Judge Sandra M. Snyder on 11/05/2007. Motion referred to Judge O'Neill. Objections to F&R due by 12/10/2007. (Flores, E)

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(HC) Rodella v. Corcoran State Prison Doc. 5 Case 1:07-cv-01567-LJO-SMS Document 5 Filed 11/05/2007 Page 1 of 2 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 VICTOR J. RODELLA, 12 Petitioner, 13 v. 14 15 CORCORAN STATE PRISON, 16 Respondent. ) ) ) ) ) ) ) ) ) ) ) 1:07-CV-01567 LJO SMS HC FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS 17 18 On October 26, 2007, Petitioner filed a petition for writ of habeas corpus in this Court. 19 DISCUSSION 20 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review 21 of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears 22 from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 23 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.1990). A federal court may only 24 grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation 25 of the Constitution . . . ." 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a 26 prisoner to challenge the “legality or duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 27 (9th Cir. 1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Advisory Committee Notes 28 to Rule 1 of the Rules Governing Section 2254 Cases. In contrast, a civil rights action pursuant to U .S. D istrict C ourt E. D . C alifornia cd 1 Dockets.Justia.com Case 1:07-cv-01567-LJO-SMS Document 5 Filed 11/05/2007 Page 2 of 2 1 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of that confinement. 2 McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 3 574; Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. 4 In this case, Petitioner claims he was released from the secured housing unit (“SHU”) at 5 Corcoran State Prison to Pleasant Valley State Prison in September of 2006. However, he states he is 6 still being held in the SHU at Corcoran. Petitioner is challenging the conditions of his confinement, 7 not the fact or duration of that confinement. Thus, Petitioner is not entitled to habeas corpus relief, 8 and this petition must be dismissed. Should Petitioner wish to pursue his claims, Petitioner must do 9 so by way of a civil rights complaint pursuant to 42 U.S.C. § 1983. 10 RECOMMENDATION 11 Accordingly, the Court RECOMMENDS that the petition for writ of habeas corpus be 12 DISMISSED because the petition does not allege grounds that would entitle Petitioner to habeas 13 corpus relief. The Court further RECOMMENDS that the Clerk of Court be DIRECTED to send 14 Petitioner the standard form for claims pursuant to 42 U.S.C. § 1983. 15 This Findings and Recommendation is submitted to the Honorable Lawrence J. O’Neill, 16 United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 17 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of 18 California. Within thirty (30) days after being served with a copy, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall 21 be served and filed within ten (10) court days (plus three days if served by mail) after service of the 22 objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 23 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive 24 the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 IT IS SO ORDERED. 26 Dated: icido3 November 5, 2007 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 27 28 U .S. D istrict C ourt E. D . C alifornia cd 2

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