(HC) William Rouser v. Sullivan, No. 1:2017cv01608 - Document 7 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Stanley A. Boone on 1/3/2018 to dismiss 1 Petition for Writ of Habeas Corpus. Referred to Judge Dale A. Drozd; Objections to F&R due by 2/5/2018. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM ROUSER, 12 13 14 15 Case No. 1:17-cv-01608-DAD-SAB-HC Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS v. W.J. SULLIVAN, 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. 19 I. 20 DISCUSSION 21 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 22 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 23 to file a response, if it “plainly appears from the petition and any attached exhibits that the 24 petitioner is not entitled to relief in the district court.” 25 By statute, federal courts “shall entertain an application for a writ of habeas corpus in 26 behalf of a person in custody pursuant to the judgment of a State court only on the ground that he 27 is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 28 § 2254(a). “[T]he second use of ‘in custody’ in the statute requires literally that the person 1 1 applying for the writ is contending that he is ‘in custody’ in violation of the Constitution or other 2 federal laws.” Bailey v. Hill, 599 F.3d 976, 979 (9th Cir. 2010). See Dickerson v. United States, 3 530 U.S. 428, 439 n.3 (2000) (“Habeas corpus proceedings are available only for claims that a 4 person ‘is in custody in violation of the Constitution or laws or treaties of the United States.’”) 5 (quoting 28 U.S.C. § 2254(a)). A claim is cognizable in habeas when a prisoner challenges “the 6 fact or duration of his confinement” and “seeks either immediate release from that confinement 7 or the shortening of its duration.” Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). In contrast, a 8 civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge 9 the conditions of confinement. McCarthy v. Bronson, 500 U.S. 136, 141–42 (1991); Preiser, 411 10 U.S. at 499. In the instant petition, Petitioner claims that prison officials denied him access to the law 11 12 library and withheld his legal property. Petitioner also appears to challenge the prison grievance 13 process on equal protection and due process grounds. (ECF No. 1 at 4).1 Petitioner does not 14 challenge any aspect of his conviction or sentence or the fact or duration of his confinement. As 15 Petitioner does not assert that he is in custody in violation of the Constitution in the instant 16 petition, he is not entitled to habeas corpus relief, and this petition should be dismissed.2 17 II. 18 RECOMMENDATION Accordingly, IT IS HEREBY RECOMMENDED that the petition for writ of habeas 19 20 corpus be DISMISSED. This Findings and Recommendation is submitted to the assigned United States District 21 22 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 23 Rules of Practice for the United States District Court, Eastern District of California. Within 24 THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 25 written objections with the court and serve a copy on all parties. Such a document should be 26 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 27 1 Page numbers refer to the ECF page numbers stamped at the top of the page. This conclusion does not preclude Petitioner from pursuing his claims in a properly filed civil action brought pursuant to 42 U.S.C. § 1983. 2 28 2 1 United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 2 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 3 time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 4 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 6 IT IS SO ORDERED. 7 Dated: January 3, 2018 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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