-GSA (HC)Ari v. Cavazos, No. 1:2011cv01072 - Document 7 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that this 1 Action be Dismissed for Failure to State a Claim signed by Magistrate Judge Gary S. Austin on 8/23/2011. Referred to Judge Anthony W. Ishii. Objections to F&R due by 9/26/2011. (Sant Agata, S)
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-GSA (HC)Ari v. Cavazos Doc. 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ROXANNE ARI, 1:11-CV-01072 AWI GSA HC 11 Petitioner, FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS 12 v. 13 14 J. CAVAZOS, Warden, 15 Respondent. / 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. This action has been referred to this Court pursuant to 28 19 U.S.C. § 636(b)(1) and Local Rule 302. 20 On June 29, 2011, Petitioner filed the instant petition for writ of habeas corpus in this Court. 21 She claims she was wrongfully issued a “CDC-128A” counseling chrono for failing to report in 22 response to a priority ducat issued by the Department of Mental Health Services. She asks that the 23 counseling chrono be expunged from her files. It appears from the petition and documents attached 24 that she has exhausted her state court remedies. 25 DISCUSSION 26 Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part: 27 If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. 28 U .S. D istrict C ourt E. D . C alifornia cd 1 Dockets.Justia.com 1 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 2 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 3 dismiss, or after an answer to the petition has been filed. See Herbst v. Cook, 260 F.3d 1039 (9th 4 Cir.2001). A petition for habeas corpus should not be dismissed without leave to amend unless it 5 appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 6 440 F.2d 13, 14 (9th Cir. 1971). 7 A federal court may only grant a petition for writ of habeas corpus if the petitioner can show 8 that "[s]he is in custody in violation of the Constitution . . . ." 28 U.S.C. § 2254(a). A habeas corpus 9 petition is the correct method for a prisoner to challenge the “legality or duration” of her 10 confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991), quoting, Preiser v. Rodriguez, 411 11 U.S. 475, 485 (1973); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 12 Cases. In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a 13 prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 141- 14 42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee Notes to Rule 1 15 of the Rules Governing Section 2254 Cases. 16 The instant petition fails to present a cognizable federal claim. Petitioner complains that she 17 was unlawfully issued a CDC 128A counseling chrono. The documents attached to her petition 18 show that although she was counseled for her failure to report, she did not sustain any penalties 19 affecting the duration of her confinement. Since the counseling chrono had no effect on the length or 20 duration of confinement, her claims are not cognizable in a federal habeas action and must be 21 dismissed. Petitioner also complains that the counseling chrono will affect a future parole decision. 22 However, this claim is pure speculation. There is no evidence that the counseling chrono will 23 directly affect a grant or denial of parole in any way. The instant petition fails to state a cognizable 24 claim for relief. 25 RECOMMENDATION 26 Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for 27 failure to state a claim. 28 This Findings and Recommendation is submitted to the Honorable Anthony W. Ishii, United U .S. D istrict C ourt E. D . C alifornia cd 2 1 States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 2 the Local Rules of Practice for the United States District Court, Eastern District of California. 3 Within thirty (30) days after service of the Findings and Recommendation, Petitioner may file 4 written objections with the court and serve a copy on all parties. Such a document should be 5 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The Court will then 6 review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). Failure to file objections 7 within the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 8 951 F.2d 1153 (9th Cir. 1991). 9 10 IT IS SO ORDERED. 11 Dated: 6i0kij August 23, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia cd 3
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