(HC) Hubbard v. Obama et al, No. 1:2015cv01192 - Document 5 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition for Lack of Habeas Jurisdiction; ORDER DIRECTING Objections be Filed within Twenty-One Days; ORDER DIRECTING Clerk of the Court to Assign District Judge to Case signed by Magistrate Judge Jennifer L. Thurston on 8/6/2015. Referred to Judge Anthony W. Ishii. Objections to F&R due by 8/31/2015. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ZANE HUBBARD, 12 Petitioner, 13 14 v. BARRACK OBAMA, et al., 15 Respondent. 16 17 18 ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:15-cv-01192-JLT FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR LACK OF HABEAS JURISDICTION (Doc. 1) ORDER DIRECTING OBJECTIONS TO BE FILED WITHIN TWENTY-ONE DAYS ORDERING DIRECTING CLERK OF THE COURT TO ASSIGN DISTRICT JUDGE TO CASE Mr. Hubbard alleges he is in custody of the California Department of Corrections and 19 Rehabilitations, serving a determinate sentence of 24 years, 8 months, and an indeterminate sentence of 20 15-years-to-life, after a 2011 conviction in the Superior Court of Kern County. 21 I. 22 DISCUSSION Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of 23 each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from 24 the face of the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 25 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.1990). A federal court may only 26 grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of 27 the Constitution . . . ." 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a 28 prisoner to challenge the “legality or duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 1 1 (9th Cir. 1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485, 93 S. Ct. 1827 (1973); Ramirez v. 2 Galaza, 334 F.3d 850, 859 (9th Cir. 2003)(“[H]abeas jurisdiction is absent, and a § 1983 action proper, 3 where a successful challenge to a prison condition will not necessarily shorten the prisoner’s 4 sentence”); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. 5 The Ninth Circuit has also held that “[h]abeas corpus jurisdiction also exists when a petitioner 6 seeks expungement of a disciplinary finding from his record if expungement is likely to accelerate the 7 prisoner’s eligibility for parole.” Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989); see also 8 Docken v. Chase, 393 F. 3d 1024, 1031 (9th Cir. 2004)(“[W]e understand Bostic’s use of the term 9 ‘likely’ to identify claims with a sufficient nexus to the length of imprisonment so as to implicate, but 10 not fall squarely within, the ‘core’ challenges identified by the Preiser Court.”) 11 In contrast to a habeas corpus challenge to the length or duration of confinement, a civil rights 12 action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of 13 confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 14 931 F.2d at 574; Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. 15 In this case, Petitioner does not challenge his 2011 conviction in the Superior Court. Rather, 16 Petitioner makes a series of allegations related to the conditions of his confinement as follows: (1) 17 Petitioner was harassed and assaulted during pre-trial detention; (2) he was the subject of “cruel and 18 unusual punishment” in a prison hospital; (3) he was a victim of excessive force and harassment by 19 police; (4) he was “validated” as a terrorist and subjected to administrative segregation in prison; (5) he 20 was assault and insulted; (6) Petitioner was deprived of personal property in prison; (7) Petitioner was 21 “obstructed from court”; (7) Petitioner was illegally “exploited and interrogated”; (8) he was sexually 22 harassed; (9) Petitioner was assaulted with a deadly weapon; and (10) he was denied access to the 23 prison law library. (Doc. 1, pp. 19-20). 24 Petitioner is thus challenging the conditions of his confinement, not the fact or duration of that 25 confinement. No relief requested by Petitioner in his petition would affect the fact or duration of 26 Petitioner’s sentence. Therefore, Petitioner is not entitled to habeas corpus relief, and this petition must 27 28 2 1 be dismissed.1 Should Petitioner wish to pursue his claims, Petitioner must do so by way of a civil 2 rights complaint pursuant to 42 U.S.C. § 1983. ORDER 3 Accordingly, the Clerk of the Court is HEREBY DIRECTED to assign a United States District 4 5 Judge to this case. RECOMMENDATION 6 Accordingly, the Court HEREBY RECOMMENDS that the habeas corpus petition be 7 8 DISMISSED for Petitioner’s failure to state any cognizable federal habeas claims. This Findings and Recommendation is submitted to the United States District Court Judge 9 10 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 11 Rules of Practice for the United States District Court, Eastern District of California. Within 21 days 12 after being served with a copy, any party may file written objections with the court and serve a copy on 13 all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 14 Recommendation.” Replies to the objections shall be served and filed within 10 court days after 15 service of the objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 16 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time 17 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 18 1991). 19 20 IT IS SO ORDERED. 21 Dated: August 6, 2015 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 1 The Court is confident that Petitioner, who is a frequent filer in this Court, is well aware of the requirements of habeas corpus petitions as distinct from those for filing civil rights complaints. Indeed, Petitioner has a pending habeas petition, case no. 1:13-cv-01758-LJO-JLT, which itself is a combination of two previously filed habeas petitions, challenging his 2011 conviction. In this Court, Petitioner has filed approximately 20 habeas petitions, many of which have been dismissed for challenging prison conditions rather than the fact or duration of his confinement. Moreover, he has filed than 25 cases challenging the conditions of his confinement in this Court. 3

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