(DP)(HC) Duff v. Chappell, No. 2:2012cv01258 - Document 23 (E.D. Cal. 2013)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 11/12/13 RECOMMENDING that petitioners petition be dismissed without prejudice. Referred to Judge Lawrence K. Karlton; Objections to F&R due within 20 days.(Dillon, M)
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(DP)(HC) Duff v. Chappell Doc. 23 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DEWEY JOE DUFF, 11 Petitioner, 12 13 No. 2:12-cv-01258 LKK KJN vs. DEATH PENALTY CASE WARDEN, San Quentin State Prison, 14 Respondent. FINDINGS & RECOMMENDATIONS 15 / 16 17 Petitioner is a state prisoner under sentence of death. On May 9, 2012, he filed 18 with this court a petition for writ of habeas corpus under 28 U.S.C. § 2241. On March 6, 2013, 19 the court appointed counsel to represent petitioner in these proceedings. 20 This court lacks jurisdiction to consider petitioner’s claims under 28 U.S.C. 21 §2241. Because petitioner “was ‘in custody pursuant to a state court judgment’ at the time he 22 filed his federal habeas petition, 28 U.S.C. § 2254 is the proper jurisdictional basis for his habeas 23 petition.” White v. Lambert, 370 F.3d 1002, 1006-08 (9th Cir. 2004), overruled on other grounds 24 //// 25 //// 26 //// 1 Dockets.Justia.com 1 by Hayward v. Marshall, 603 F.3d 546, 554 (9th Cir. 2010);1 Weaver v. Chappell, 2012 WL 2 3999848 (S.D. Cal. Sept. 10, 2012). 3 4 Accordingly, this court HEREBY RECOMMENDS that petitioner’s petition be dismissed without prejudice. 5 These findings and recommendations are submitted to the United States District 6 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 7 days after being served with these findings and recommendations, any party may file written 8 objections with the court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that 10 failure to file objections within the specified time may waive the right to appeal the District 11 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 DATED: November 12, 2013 13 14 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 15 16 duff 2.fr 17 18 19 20 21 22 23 24 25 26 1 In Washington v. Swarthout, 2011 WL 333318 (E.D. Cal. Jan. 31, 2011), this court recognized that the United States Supreme Court essentially overruled Hayward in Swarthout v. Cooke, 131 S. Ct. 859 (2011). 2
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