Hardy v. Powell, No. 1:2010cv01271 - Document 4 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Complaint, 1 , be dismissed without prejudice. Objections to F&R due within thirty (30) days after being served with these Findings and Recommendations. Matter referred to Judge O'Neill; signed by Magistrate Judge Sheila K. Oberto on 9/1/2010. (Timken, A)

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Hardy v. Powell Doc. 4 1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 EASTERN DISTRICT OF CALIFORNIA – FRESNO DIVISION 13 CURTIS C. HARDY, CASE NO. 1:10-cv-01271-LJO-SKO 14 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S COMPLAINT BE DISMISSED WITHOUT PREJUDICE 15 v. 16 (Doc. 1) 17 RONALD POWELL, OBJECTIONS DUE: 30 DAYS 18 Defendant. / 19 20 Plaintiff Curtis Hardy is a state prisoner proceeding pro se and in forma pauperis in this civil 21 rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint on July 16, 2010. Plaintiff 22 alleges that his attorney and the judge who presided over his criminal case forced him to accept a 23 plea bargain for a crime he did not commit. Plaintiff also asserts that the defendant, Ronald Powell 24 ("Defendant"), refused to prepare a legitimate defense in his criminal case. Plaintiff further contends 25 that, although he was eventually coerced by Defendant into accepting a four-year plea bargain, the 26 presiding judge ultimately sentenced him to sixteen years in state prison. Plaintiff avers that the 27 conduct of his attorney and the judge in his criminal case violated his right to due process under the 28 Fifth Amendment. Plaintiff is seeking an order requiring a federal criminal investigation of the Dockets.Justia.com 1 Defendant's conduct and an award of monetary damages in the amount of ten million dollars. 2 The Court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 7 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 8 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 9 claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 10 When a prisoner challenges the legality or duration of his custody, or raises a constitutional 11 challenge which could entitle him to an earlier release, his sole federal remedy is a writ of habeas 12 corpus. Wilkinson v. Dotson, 544 U.S. 74, 78-82, 125 S.Ct. 1242, 1245-48 (2005); Preiser v. 13 Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 1841 (1973). Moreover, when seeking relief for an 14 allegedly unconstitutional conviction or imprisonment, “a [Section] 1983 plaintiff must prove that 15 the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared 16 invalid by a state tribunal authorized to make such determination, or called into question by a federal 17 court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck v. Humphrey, 512 U.S. 477, 18 486-87, 114 S.Ct. 2364, 2372 (1994). “A claim . . . bearing that relationship to a conviction or 19 sentence that has not been so invalidated is not cognizable under [Section] 1983.” Id. at 487, 114 20 S.Ct. at 2372. 21 At this time, Plaintiff may not bring a civil rights action related to the legality of his 22 criminal conviction or the length of his sentence. Plaintiff’s sole remedy is to file a petition for 23 writ of habeas corpus. The Court notes that a petitioner who is in state custody and wishes to 24 challenge collaterally a conviction by a petition for writ of habeas corpus must exhaust state 25 judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the 26 state court and gives the state court the initial opportunity to correct the state's alleged 27 constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 28 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988). 2 1 Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed, without 2 prejudice, based on Plaintiff's failure to state a claim upon which relief may be granted under 3 section 1983. Plaintiff cannot cure the above deficiencies, and leave to amend would be futile. 4 These findings and recommendations will be submitted to the Honorable Lawrence J. 5 O'Neill, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty (30) days after being 6 served with these Findings and Recommendations, Plaintiff may file written objections with the 7 Court. The document should be captioned "Objections to Magistrate Judge's Findings and 8 Recommendations." Plaintiff is advised that failure to file objections within the specified time 9 may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 10 1991). 11 12 IT IS SO ORDERED. 13 Dated: ie14hj September 1, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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