(HC) Smith v. Yates et al, No. 1:2009cv00783 - Document 11 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS recommending to Dismiss the 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Sheila K. Oberto on 06/25/2010. Referred to Judge Ishii; Objections to F&R due by 8/2/2010. (Flores, E)
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(HC) Smith v. Yates et al Doc. 11 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DAVID PERRY SMITH, ) ) ) ) ) ) ) ) ) ) ) ) ) 11 Petitioner, 12 13 14 v. JAMES A YATES, Warden, PVSP Coalinga, 15 Respondent. 16 1:09-cv—0783-AWI-SKO-HC FINDINGS AND RECOMMENDATION TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1) OBJECTIONS DUE WITHIN THIRTY (30) DAYS 17 18 Petitioner is a state prisoner proceeding pro se and in 19 forma pauperis with a petition for writ of habeas corpus pursuant 20 to 28 U.S.C. § 2254. 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 22 Rules 302 and 304. 23 which was filed by Petitioner in this Court on April 29, 2009. The matter has been referred to the Pending before the Court is the petition, 24 I. Screening the Petition 25 Rule 4 of the Rules Governing § 2254 Cases in the United 26 States District Courts (Habeas Rules) requires the Court to make 27 a preliminary review of each petition for writ of habeas corpus. 28 The Court must summarily dismiss a petition "[i]f it plainly 1 Dockets.Justia.com 1 appears from the petition and any attached exhibits that the 2 petitioner is not entitled to relief in the district court....” 3 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 4 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 5 1990). 6 grounds of relief available to the Petitioner; 2) state the facts 7 supporting each ground; and 3) state the relief requested. 8 Notice pleading is not sufficient; rather, the petition must 9 state facts that point to a real possibility of constitutional Habeas Rule 2(c) requires that a petition 1) specify all 10 error. 11 v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 12 U.S. 63, 75 n. 7 (1977)). 13 Habeas Rule 4, adv. comm. notes, 1976 adoption; O’Bremski Further, the Court may dismiss a petition for writ of habeas 14 corpus either on its own motion under Rule 4, pursuant to the 15 respondent's motion to dismiss, or after an answer to the 16 petition has been filed. 17 8, 1976 adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 18 (9th Cir. 2001). Advisory committee notes to Habeas Rule 19 II. Conditions of Confinement 20 A federal court may only grant a petition for writ of habeas 21 corpus if the petitioner can show that "he is in custody in 22 violation of the Constitution or laws or treaties of the United 23 States." 24 correct method for a prisoner to challenge the legality or 25 duration of his confinement. 26 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 27 (1973)); advisory committee notes to Habeas Rule 1, 1976 28 adoption. 28 U.S.C. § 2254(a). A habeas corpus petition is the Badea v. Cox, 931 F.2d 573, 574 2 1 In contrast, a civil rights action pursuant to 42 U.S.C. 2 § 1983 is the proper method for a prisoner to challenge the 3 conditions of that confinement. 4 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 5 574; advisory committee notes to Habeas Rule 1, 1976 adoption. 6 McCarthy v. Bronson, 500 U.S. In this case, Petitioner alleges that he has requested a 7 transfer to a federal facility from the warden of the state 8 institution where Petitioner is confined pursuant to the judgment 9 of a state court. Petitioner alleges that he has served over 10 thirty (30) years of a state life sentence and has been denied 11 parole thirteen (13) times. 12 complaint is that he is subjected to overcrowding in his 13 institution of confinement, and his custodians have failed to 14 address unspecified issues concerning Petitioner’s mental health 15 and living conditions. 16 transfer to a federal institution. 17 pending civil rights cases and asserts generally his membership 18 in classes affecting by ongoing proceedings. However, the gravamen of his (Pet. 2.) Petitioner therefore seeks a Petitioner refers to various (Pet. 3.) 19 Petitioner cites authorities that recognize a statutory 20 basis for permitting transfers of prisoners from state to federal 21 institutions but do not involve analogous procedural or custodial 22 circumstances. 23 any facts that would support a finding that he has a legally 24 justified expectation of incarceration in any particular 25 institution. 26 is established that a claim concerning the conditions of 27 confinement, such as privileges, programming, and transfer to a 28 less restrictive facility, are properly raised in a civil rights (Pet. 5, 8.) However, Petitioner has not alleged See, Olim v. Wakinekona, 461 U.S. 238 (1983). 3 It 1 action. 2 2010 WL 1333277, *2 (E.D.Cal. April 2, 2010) (collecting cases). 3 Petitioner’s allegations concern only the conditions of his Martinez-Bermudez v. Rios, no. 1:10-cv-00327-JLT HC, 4 confinement. 5 relief that would affect the fact or duration of his 6 incarceration. 7 relief, and this petition must be dismissed without prejudice to 8 Petitioner’s filing a civil rights action. 9 The Court cannot possibly afford Petitioner any Thus, Petitioner is not entitled to habeas corpus Should Petitioner wish to pursue his claims, he must do so 10 by way of a civil rights complaint pursuant to 42 U.S.C. § 1983. 11 It will be recommended that the Clerk be directed to send an 12 appropriate form complaint to Petitioner. 13 III. Certificate of Appealability 14 Unless a circuit justice or judge issues a certificate of 15 appealability, an appeal may not be taken to the court of appeals 16 from the final order in a habeas proceeding in which the 17 detention complained of arises out of process issued by a state 18 court. 19 U.S. 322, 336 (2003). 20 only if the applicant makes a substantial showing of the denial 21 of a constitutional right. 22 petitioner must show that reasonable jurists could debate whether 23 the petition should have been resolved in a different manner or 24 that the issues presented were adequate to deserve encouragement 25 to proceed further. 26 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 27 certificate should issue if the Petitioner shows that jurists of 28 reason would find it debatable whether the petition states a 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 4 A 1 valid claim of the denial of a constitutional right or that 2 jurists of reason would find it debatable whether the district 3 court was correct in any procedural ruling. 4 529 U.S. 473, 483-84 (2000). 5 conducts an overview of the claims in the habeas petition, 6 generally assesses their merits, and determines whether the 7 resolution was debatable among jurists of reason or wrong. 8 It is necessary for an applicant to show more than an absence of 9 frivolity or the existence of mere good faith; however, it is not Slack v. McDaniel, In determining this issue, a court Id. 10 necessary for an applicant to show that the appeal will succeed. 11 Id. at 338. 12 A district court must issue or deny a certificate of 13 appealability when it enters a final order adverse to the 14 applicant. 15 Habeas Rule 11(a). Here, because Petitioner’s claims relate only to conditions 16 of confinement, jurists of reason would not find it debatable 17 whether the Court was correct in its ruling. 18 Petitioner has not made a substantial showing of the denial of a 19 constitutional right, and the Court declines to issue a 20 certificate of appealability. 21 IV. Recommendation 22 Accordingly, it is RECOMMENDED that: 23 1) The petition for writ of habeas corpus be DISMISSED Accordingly, 24 without prejudice to Petitioner’s right to file a civil rights 25 action pursuant to 28 U.S.C. § 1983; 26 27 28 2) The Clerk of Court be DIRECTED to enter judgment and close the case; 3) The Court DECLINE to issue a certificate of 5 1 appealability; and 2 4) The Clerk be DIRECTED to mail to Petitioner a form for 3 filing a civil rights complaint pursuant to 42 U.S.C. § 1983 by a 4 person in custody. 5 These findings and recommendations are submitted to the 6 United States District Court Judge assigned to the case, pursuant 7 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 8 the Local Rules of Practice for the United States District Court, 9 Eastern District of California. Within thirty (30) days after 10 being served with a copy, any party may file written objections 11 with the Court and serve a copy on all parties. Such a document 12 should be captioned “Objections to Magistrate Judge’s Findings 13 and Recommendations.” 14 and filed within fourteen (14) days (plus three (3) days if 15 served by mail) after service of the objections. 16 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 17 636 (b)(1)(C). 18 objections within the specified time may waive the right to 19 appeal the District Court’s order. 20 1153 (9th Cir. 1991). Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 21 22 IT IS SO ORDERED. 23 Dated: ie14hj June 25, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 6
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