(HC) Turner v. Beard, No. 2:2015cv02237 - Document 4 (E.D. Cal. 2015)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/2/2015 GRANTING petitioner's 2 motion to proceed IFP; and the Clerk shall assign a district court judge to this case. IT IS RECOMMENDED that petitioner's 1 application for writ of habeas corpus be summarily dismissed. Assigned and referred to Judge Troy L. Nunley; Objections due within 14 days.(Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY R.G. TURNER, 12 Petitioner, 13 14 v. ORDER AND JEFFREY A. BEARD, 15 No. 2:15-cv-2237 CKD P FINDINGS AND RECOMMENDATIONS Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. 19 Examination of the in forma pauperis application reveals that petitioner is unable to afford the 20 costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 21 U.S.C. § 1915(a). 22 Under Rule 4 of the Rules Governing Section 2254 Cases, the court is required to conduct 23 a preliminary review of all petitions for writ of habeas corpus filed by state prisoners. The court 24 must summarily dismiss a petition if it “plainly appears . . . that the petitioner is not entitled to 25 relief. . .” The court has conducted the review required under Rule 4. 26 Petitioner challenges conditions of confinement. However, an application for writ of 27 habeas corpus by a state prisoner can only be entertained by this court if the prisoner alleges he is 28 in custody in violation of federal law. 28 U.S.C. § 2241(a). Because petitioner does not allege he 1 1 is in custody in violation of federal law, or challenge the length of his sentence, no writ of habeas 2 corpus can issue. Accordingly, the court will recommend that this action be dismissed.1 3 In accordance with the above, IT IS HEREBY ORDERED that: 4 1. Petitioner’s motion to proceed in forma pauperis (ECF No. 2) is granted; and 5 2. The Clerk of the Court assign a district court judge to this case. 6 IT IS HEREBY RECOMMENDED that petitioner’s application for writ of habeas corpus 7 be summarily dismissed. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 10 after being served with these findings and recommendations, petitioner may file written 11 objections with the court. Such a document should be captioned “Objections to Magistrate 12 Judge’s Findings and Recommendations.” In his objections petitioner may address whether a 13 certificate of appealability should issue in the event he files an appeal of the judgment in this 14 case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or 15 deny a certificate of appealability when it enters a final order adverse to the applicant). Petitioner 16 is advised that failure to file objections within the specified time may waive the right to appeal the 17 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 Dated: November 2, 2015 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 1 turn2237.114 25 26 27 28 1 If petitioner wishes to challenge conditions of confinement, he should initiate an action for violation of civil rights under 42 U.S.C. § 1983. Of course, as petitioner knows, he has “struck out” pursuant to 28 U.S.C. § 1915(g) so he will not be permitted to proceed in forma pauperis in a § 1983 action unless he is “under imminent danger of serious physical injury.” 2

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