(HC) Khan v. Frauenheim, No. 2:2015cv01050 - Document 7 (E.D. Cal. 2015)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 10/08/15 granting 6 Motion to Proceed IFP. Also, RECOMMENDING that that petitioner's application for writ of habeas corpus be dismissed for failure to state a cognizable claim for relief. Referred to Judge William B. Shubb. Objections due within 14 days. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MUSTAQ ALI KHAN, 12 13 14 15 No. 2:15-cv-1050 WBS DAD P Petitioner, v. ORDER AND S. FRAUENHEIM, Warden, FINDINGS AND RECOMMENDATIONS Respondent. 16 17 18 19 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. Examination of the in forma pauperis application reveals that petitioner is unable to afford 20 the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 21 28 U.S.C. § 1915(a). 22 23 PRELIMINARY SCREENING Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 24 petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the 25 petitioner is not entitled to relief in the district court . . . .” Rule 4, Rules Governing Section 2254 26 Cases. See also O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); Gutierrez v. Griggs, 695 27 F.2d 1195, 1198 (9th Cir. 1983). The Advisory Committee Notes to Rule 8 indicate that the court 28 may dismiss a petition for writ of habeas corpus at several stages of a case, including “summary 1 1 dismissal under Rule 4; a dismissal pursuant to a motion by the respondent; a dismissal after the 2 answer and petition are considered; or a dismissal after consideration of the pleadings and an 3 expanded record.” 4 5 THE PETITION Petitioner commenced this action by filing a petition for writ of habeas corpus. In his 6 petition, petitioner makes clear that he is not challenging his conviction and sentence. Instead, 7 petitioner requests a commutation of sentence and/or an international transfer of custody to the 8 Fijian Islands. He has attached to his petition a copy of his California Application for 9 Commutation of Sentence directed to Governor Edmund G. Brown, Jr. (Pet. at 5-5a & Ex. A.) 10 11 DISCUSSION Petitioner’s application for a writ of habeas corpus fails to state a cognizable claim for 12 federal habeas corpus relief. 28 U.S.C. § 2254(a). As noted above, petitioner does not challenge 13 his conviction and sentence and does not assert any claims for relief. In fact, from the allegations 14 of his petition, petitioner himself does not appear to believe that he has suffered any federal 15 constitutional deprivation(s). Petitioner admits to his crime and accepts full responsibility for it. 16 He simply is seeking the commutation of his sentence. Petitioner is advised that he needs to file 17 his Application for Commutation of Sentence with the Office of the Governor of California and 18 not with this federal court. 19 20 21 22 23 CONCLUSION Accordingly, IT IS HEREBY ORDERED that petitioner’s motion to proceed in forma pauperis (Doc. No. 6) is granted. IT IS HEREBY RECOMMENDED that petitioner’s application for writ of habeas corpus be dismissed for failure to state a cognizable claim for relief. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 26 after being served with these findings and recommendations, petitioner may file written 27 objections with the court and serve a copy on all parties. Such a document should be captioned 28 “Objections to Magistrate Judge’s Findings and Recommendations.” Petitioner is advised that 2 1 failure to file objections within the specified time may waive the right to appeal the District 2 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 In any objections he elects to file, petitioner may address whether a certificate of 4 appealability should issue in the event he files an appeal of the judgment in this case. See Rule 5 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a 6 certificate of appealability when it enters a final order adverse to the applicant). 7 Dated: October 8, 2015 8 9 10 11 DAD:9 khan1050.156 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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