(HC) Harrell v. California Dept. of Corrections and Rehabilitation et al, No. 2:2006cv01669 - Document 5 (E.D. Cal. 2006)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Judge Dale A. Drozd on 08/22/06: ORDERED that petitioner's 07/31/06 2 2 MOTION to PROCEED IFP is DENIED; the Clerk shall send petitioner a civil rights packet. RECOMMENDING that this action be dismissed without prejudice because it plainly appears from the face of the habeas petition that petitioner is not entitled to federal habeas corpus; objections due 20 days after being served with these F&RS.(Kirkpatrick, S)
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(HC) Harrell v. California Dept. of Corrections and Rehabilitation et al Case 2:06-cv-01669-GEB-DAD Document 5 Doc. 5 Filed 08/22/2006 Page 1 of 3 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 HULEN T. HARRELL, Petitioner, 11 12 13 14 15 vs. SECRETARY OF CALIFORNIA DEPT. OF CORRECTIONS AND REHABILITATION, et al., ORDER AND Respondents. FINDINGS AND RECOMMENDATIONS / 16 17 No. CIV S-06-1669 GEB DAD P Petitioner is a state prisoner confined in California State Prison - Solano. 18 Petitioner’s pro se petition for writ of habeas corpus and application to proceed in forma pauperis 19 are before the court. 20 Petitioner has entered no relevant information on the form petition. The 21 documents attached to the incomplete form reveal that petitioner’s claims arise from prison 22 officials’ refusal to issue to petitioner as allowable personal property his “new external speaker 23 cassette radio and night lamp.” (Pet. at page electronically numbered 7.) 24 A federal district court cannot entertain a petition for writ of habeas corpus 25 brought by a person in custody pursuant to the judgment of a state court unless the habeas 26 petition has been brought on the ground that the petitioner is in custody in violation of the 1 Dockets.Justia.com Case 2:06-cv-01669-GEB-DAD Document 5 Filed 08/22/2006 Page 2 of 3 1 Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). Federal habeas relief 2 is available only for challenges to the duration or legality of a prisoner’s confinement. Preiser v. 3 Rodriguez, 411 U.S. 475, 500 (1973). 4 The habeas petition filed in this action must be dismissed because it does not state 5 a basis for federal habeas corpus relief. See Rule 4, Fed. R. Governing § 2254 Cases (“If it 6 plainly appears from the face of the petition and any exhibits attached to it that the petitioner is 7 not entitled to relief in the district court, the judge shall make an order for its summary dismissal 8 . . . .”). Petitioner’s in forma pauperis application will be denied, and the undersigned will 9 recommend that the district judge dismiss this habeas case without prejudice. 10 The Clerk of the Court will be directed to provide petitioner with a civil rights 11 complaint form and the in forma pauperis application form to be submitted with such a 12 complaint. If petitioner chooses to file a civil rights complaint, his complaint and in forma 13 pauperis application must be submitted for filing as a new action. The case number assigned to 14 this habeas case should not be included on the civil rights complaint, as a new case must be 15 opened and a new case number will be assigned. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. Petitioner’s July 31, 2006 application to proceed in forma pauperis is denied; 18 2. The Clerk of the Court shall send petitioner a civil rights complaint form and 19 20 the in forma pauperis application used in civil rights actions in this district; and IT IS RECOMMENDED that this action be dismissed without prejudice because 21 it plainly appears from the face of the habeas petition that petitioner is not entitled to federal 22 habeas corpus relief. 23 These findings and recommendations are submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 25 days after being served with these findings and recommendations, petitioner may file written 26 objections with the court. A document containing objections should be titled “Objections to 2 Case 2:06-cv-01669-GEB-DAD Document 5 Filed 08/22/2006 Page 3 of 3 1 Magistrate Judge’s Findings and Recommendations.” Petitioner is advised that failure to file 2 objections within the specified time may, under certain circumstances, waive the right to appeal 3 the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 DATED: August 22, 2006. 5 6 7 8 DAD:13 harr1669.156 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3
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