Kelley v. CDCR, Wasco State Prison
Filing
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ORDER DISMISSING Petition for Writ of Habeas Corpus; ORDER Declining to Issue a Certificate of Appealability; ORDER Directing the Clerk to Close the Case and to Mail a Civil Rights Form to Petitioner, signed by Magistrate Judge Sheila K. Oberto on 6/22/11. CASE CLOSED. (Attachments: # 1 Civil Rights Complaint Form & Instructions)(Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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PATRICK D. KELLEY, JR.,
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Petitioner,
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v.
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CDCR, WASCO STATE PRISON,
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Respondent.
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1:11-cv—00870-SKO-HC
ORDER DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS
ORDER DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY
ORDER DIRECTING THE CLERK TO
CLOSE THE CASE AND TO MAIL A
CIVIL RIGHTS FORM TO PETITIONER
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Petitioner is a state prisoner proceeding pro se and in
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forma pauperis with a petition for writ of habeas corpus pursuant
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to 28 U.S.C. § 2254.
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Petitioner has consented to the jurisdiction of the United States
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Magistrate Judge to conduct all further proceedings in the case,
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including the entry of final judgment, by manifesting consent in
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a signed writing filed by Petitioner on June 7, 2011 (doc. 5).
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Pending before the Court is the petition, which was filed on May
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31, 2011.
Pursuant to 28 U.S.C. § 636(c)(1),
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I. Screening the Petition
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Rule 4 of the Rules Governing § 2254 Cases in the United
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States District Courts (Habeas Rules) requires the Court to make
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a preliminary review of each petition for writ of habeas corpus.
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The Court must summarily dismiss a petition "[i]f it plainly
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appears from the petition and any attached exhibits that the
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petitioner is not entitled to relief in the district court....”
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Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.
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1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.
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1990).
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grounds of relief available to the Petitioner; 2) state the facts
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supporting each ground; and 3) state the relief requested.
Habeas Rule 2(c) requires that a petition 1) specify all
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Notice pleading is not sufficient; rather, the petition must
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state facts that point to a real possibility of constitutional
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error.
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v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431
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U.S. 63, 75 n. 7 (1977)).
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Habeas Rule 4, Adv. Comm. Notes, 1976 Adoption; O’Bremski
Further, the Court may dismiss a petition for writ of habeas
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corpus either on its own motion under Rule 4, pursuant to the
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respondent's motion to dismiss, or after an answer to the
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petition has been filed.
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8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43
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(9th Cir. 2001).
Advisory Committee Notes to Habeas Rule
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II. Conditions of Confinement
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Because the petition was filed after April 24, 1996, the
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effective date of the Antiterrorism and Effective Death Penalty
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Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh
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v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008
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(1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
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A district court may entertain a petition for a writ of
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habeas corpus by a person in custody pursuant to the judgment of
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a state court only on the ground that the custody is in violation
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of the Constitution, laws, or treaties of the United States. 28
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U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362,
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375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13,
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method for a prisoner to challenge the legality or duration of
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his confinement.
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(quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973));
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Advisory Committee Notes to Habeas Rule 1, 1976 Adoption.
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A habeas corpus petition is the correct
Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991)
In contrast, a civil rights action pursuant to 42 U.S.C. §
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1983 is the proper method for a prisoner to challenge the
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conditions of that confinement.
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136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at
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574; Advisory Committee Notes to Habeas Rule 1, 1976 Adoption.
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McCarthy v. Bronson, 500 U.S.
In this case, Petitioner alleges that he is an inmate of the
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Wasco State Prison at Wasco, California.
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concerns his housing assignment, which he contests because due to
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previous murders of homosexual inmates, he does not feel safe
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unless he is housed with another inmate who shares an alternative
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lifestyle.
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Petitioner’s claim
Petitioner’s allegations concern only the conditions of his
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confinement.
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real possibility of constitutional error that affects the
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legality or duration of his confinement.
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entitled to habeas corpus relief, and this petition must be
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dismissed.
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Petitioner does not allege facts that point to a
Thus, Petitioner is not
Should Petitioner wish to pursue his claims, he must do so
by way of a civil rights complaint pursuant to 42 U.S.C. § 1983.
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The Clerk will be directed to send an appropriate form complaint
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to Petitioner.
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III. Certificate of Appealability
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Unless a circuit justice or judge issues a certificate of
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appealability, an appeal may not be taken to the court of appeals
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from the final order in a habeas proceeding in which the
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detention complained of arises out of process issued by a state
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court.
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U.S. 322, 336 (2003).
28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537
A certificate of appealability may issue
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only if the applicant makes a substantial showing of the denial
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of a constitutional right.
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petitioner must show that reasonable jurists could debate whether
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the petition should have been resolved in a different manner or
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that the issues presented were adequate to deserve encouragement
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to proceed further.
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(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
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certificate should issue if the Petitioner shows that jurists of
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reason would find it debatable whether the petition states a
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valid claim of the denial of a constitutional right or that
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jurists of reason would find it debatable whether the district
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court was correct in any procedural ruling.
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529 U.S. 473, 483-84 (2000).
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§ 2253(c)(2).
Under this standard, a
Miller-El v. Cockrell, 537 U.S. at 336
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Slack v. McDaniel,
In determining this issue, a court conducts an overview of
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the claims in the habeas petition, generally assesses their
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merits, and determines whether the resolution was debatable among
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jurists of reason or wrong.
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applicant to show more than an absence of frivolity or the
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existence of mere good faith; however, it is not necessary for an
Id.
It is necessary for an
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applicant to show that the appeal will succeed.
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Cockrell, 537 U.S. at 338.
Miller-El v.
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A district court must issue or deny a certificate of
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appealability when it enters a final order adverse to the
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applicant.
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Habeas Rule 11(a).
Here, because Petitioner’s claims relate only to conditions
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of confinement, jurists of reason would not find it debatable
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whether the Court was correct in its ruling.
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Petitioner has not made a substantial showing of the denial of a
Accordingly,
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constitutional right, and the Court will decline to issue a
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certificate of appealability.
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IV. Disposition
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Accordingly, it is ORDERED that:
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1) The petition for writ of habeas corpus is DISMISSED
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without prejudice to Petitioner’s right to file a civil rights
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action pursuant to 28 U.S.C. § 1983; and
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2) The Clerk of Court is DIRECTED to close the case because
this order terminates the action in its entirety; and
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3) The Court DECLINES to issue a certificate of
appealability; and
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4) The Clerk is DIRECTED to mail to Petitioner a form for
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filing a civil rights complaint pursuant to 42 U.S.C. § 1983 by a
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person in custody.
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IT IS SO ORDERED.
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Dated:
ie14hj
June 22, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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