(HC) Dukes v. Warden, No. 1:2016cv01325 - Document 5 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the Petition for a Writ of Habeas Corpus be DISMISSED re 1 Petition for Writ of Habeas Corpus filed by Melvin Dukes; referred to Judge Drozd; ORDER DIRECTING Clerk of Court to Assign District Court Judge to the Present Matter,signed by Magistrate Judge Michael J. Seng on 11/18/16. *New case number is: 1:16-cv-1325 DAD-MJS (HC)* Objections to F&R due (30-Day Deadline) (Martin-Gill, S)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 Case No. 1:16-cv-01325 MJS (HC) MELVIN DUKES, 13 v. 14 FINDINGS AND RECOMMENDATION TO Petitioner, DISMISS PETITION FOR WRIT OF HABEAS CORPUS FOR FAILING TO STATE COGNIZABLE CLAIM ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT COURT JUDGE TO THE PRESENT MATTER 15 16 17 WARDEN, Respondent. 18 19 20 21 22 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus under the authority of 28 U.S.C. § 2254. Petitioner filed the instant petition for writ of habeas corpus on September 8, 2016. (Pet., ECF No. 1.) Due to the marginal legibility of the petition, the Court was 23 unable to determine Petitioner’s crime of conviction or his claims and factual assertions. 24 (Id.) However, it appeared that Petitioner’s main assertion related to loss of property 25 26 27 while incarcerated. (Id.) Thus, while Petitioner asserted that he was entitled to relief, it did not appear that his claims implicated the fact or length of his detention. On September 21, 2016, the Court issued an order to show cause why the 28 1 1 petition should not be dismissed for failure to state a cognizable claim. (ECF No. 4.) 2 Over thirty days have passed, and Petitioner has not filed a response to the order to 3 show cause. 4 I. Discussion 5 A. 6 Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part: 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. 7 8 Procedural Grounds for Summary Dismissal The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a 9 petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the 10 respondent’s motion to dismiss, or after an answer to the petition has been filed. A 11 petition for habeas corpus should not be dismissed without leave to amend unless it 12 appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis 13 v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 14 B. Failure to State Cognizable Claim 15 A federal court may only grant a petition for writ of habeas corpus if the petitioner 16 can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. § 17 2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the 18 “legality or duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 19 1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Advisory Committee 20 Notes to Rule 1 of the Rules Governing Section 2254 Cases. 21 In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method 22 for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 23 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory 24 Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. 25 A district court may entertain a petition for a writ of habeas corpus by a state 26 prisoner only on the ground that the custody is in violation of the Constitution, laws, or 27 treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 28 2 1 U.S. 362, 375 n.7, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000); Wilson v. Corcoran, 131 2 S. Ct. 13, 16, 178 L. Ed. 2d 276 (2010). 3 Federal habeas relief is not available to retry a state issue that does not rise to the 4 level of a federal constitutional violation. Wilson v. Corcoran, 131 S.Ct. at 16 (2010); 5 Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991). 6 Alleged errors in the application of state law are not cognizable in federal habeas 7 corpus. Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002) (an ex post facto claim 8 challenging state court's discretionary decision concerning application of state 9 sentencing law presented only state law issues and was not cognizable in a proceeding 10 pursuant to 28 U.S.C. § 2254); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). 11 The Court accepts a state court's interpretation of state law. Langford, 110 F.3d at 1389. 12 In a habeas corpus proceeding, this Court is bound by the California Supreme Court's 13 interpretation of California law unless the interpretation is deemed untenable or a veiled 14 attempt to avoid review of federal questions. Murtishaw v. Woodford, 255 F.3d 926, 964 15 (9th Cir. 2001). 16 In this case, Petitioner’s claims are unclear. The petition is barely legible, but it 17 appears that Petitioner feels correctional officers have taken action contrary to state laws 18 and regulations; no alleged violation of federal law appears. Therefore, even if his claims 19 implicate the fact or duration of his confinement, it does not appear that he has alleged a 20 sufficient federal violation. 21 Given the petition’s lack of legibility and the failure to allege a federal basis for any 22 claims, the Court concludes Petitioner has not presented claims entitled to relief by way 23 of a federal petition for writ of habeas corpus. 24 II. Recommendation 25 Accordingly, it is hereby recommended that the petition for a writ of habeas 26 corpus be DISMISSED. The Court orders the Clerk of Court to assign a district court 27 judge to the instant matter. 28 This Findings and Recommendation is submitted to the assigned District Judge, 3 1 pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) days after 2 being served with the Findings and Recommendation, any party may file written 3 objections with the Court and serve a copy on all parties. Such a document should be 4 captioned "Objections to Magistrate Judge's Findings and Recommendation." Any reply 5 to the objections shall be served and filed within fourteen (14) days after service of the 6 objections. The parties are advised that failure to file objections within the specified time 7 may waive the right to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d 8 834, 839 (9th Cir. 2014). 9 10 11 12 IT IS SO ORDERED. Dated: November 18, 2016 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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