(HC) Wagner v. Lizzaraga, No. 2:2016cv00449 - Document 4 (E.D. Cal. 2016)

Court Description: ORDER; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 3/14/16 ORDERING that Petitioner's request for leave to proceed in forma pauperis 2 is GRANTED; and the Clerk of the Court is directed to assign a district court judge to this case; it is RECOMMENDED that Petitioner's petition for writ of habeas corpus be summarily dismissed; and this case be closed. Randomly referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Dillon, M)

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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 CLINTON WAGNER, 12 Petitioner, 13 14 No. 2:16-cv-0449 CKD P v. ORDER and FINDINGS & RECOMMENDATIONS JOE LIZZARRAGA, 15 Respondent. 16 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 17 18 corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis. 19 Examination of the request to proceed in forma pauperis reveals that petitioner is unable to afford 20 the costs of suit. Accordingly, the request for leave to proceed in forma pauperis will be granted. 21 See 28 U.S.C. § 1915(a). 22 Under Rule 4 of the Rules Governing Section 2254 Cases, the court must review all 23 petitions for writ of habeas corpus and summarily dismiss any petition if it is plain that the 24 petitioner is not entitled to relief. The court has conducted that review. In his petition, petitioner asks that the court order the Superior Court of Santa Clara 25 26 County to provide plaintiff with a copy of his trial transcript. However, a district court can only 27 entertain a petition for a writ of habeas corpus to the extent it is alleged that the petitioner is in 28 ///// 1 1 custody in violation of federal law. 28 U.S.C. § 2254(a). Because petitioner’s claim is not 2 actionable by way of a petition for writ of habeas corpus, his habeas petition should be summarily 3 dismissed. 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. Petitioner’s request for leave to proceed in forma pauperis (ECF No. 2) is granted; and 6 2. The Clerk of the Court is directed to assign a district court judge to this case. 7 IT IS HEREBY RECOMMENDED that: 8 1. Petitioner’s petition for writ of habeas corpus be summarily dismissed; and 9 2. This case be closed. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 12 after being served with these findings and recommendations, petitioner may file written 13 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 14 Findings and Recommendations.” Petitioenr is advised that failure to file objections within the 15 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 16 F.2d 1153 (9th Cir. 1991). 17 Dated: March 14, 2016 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 1/md wagn0449.dis 24 25 26 27 28 2

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