(HC) Robinson v. Soto, No. 2:2015cv01657 - Document 4 (E.D. Cal. 2015)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 8/14/2015 GRANTING petitioner's 2 request to proceed IFP; and the Clerk shall assign a district court judge to this case. It is RECOMMENDED that petitioner's 1 application for writ of habeas corpus be summarily dismissed. Assigned and referred to Judge Kimberly J. Mueller; Objections due within 14 days.(Yin, K)

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(HC) Robinson v. Soto Doc. 4 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CLARK ROBINSON, 12 13 14 No. 2:15-cv-1657 CKD P Petitioner, v. ORDER AND JOHN SOTO, WARDEN, 15 FINDINGS AND RECOMMENDATIONS Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254 and an application to proceed in forma pauperis. 19 Examination of the in forma pauperis application reveals that petitioner is unable to afford the 20 costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 21 U.S.C. § 1915(a). 22 Under Rule 4 of the Rules Governing Section 2254 Cases, the court is required to conduct 23 a preliminary review of all petitions for writ of habeas corpus filed by state prisoners. The court 24 must summarily dismiss a petition if it “plainly appears . . . that the petitioner is not entitled to 25 relief. . .” The court has conducted the review required under Rule 4. 26 In his petition, the relief petitioner seeks is the reversal of a California Supreme Court 27 decision denying a post-conviction motion for discovery. Under 28 U.S.C. § 2254(a) this court 28 can consider a petition for writ of habeas corpus by a person in state custody “only on the ground 1 Dockets.Justia.com 1 that he is in custody in violation of the Constitution [or other federal law].” Because there is no 2 claim before the court that petitioner is in custody in violation of federal law, the court cannot 3 entertain the petition filed by petitioner. For these reasons, petitioner’s petition for a writ of 4 habeas corpus will be summarily dismissed. 5 In accordance with the above, IT IS HEREBY ORDERED that: 6 1. Petitioner’s request for leave to proceed in forma pauperis (ECF No. 2) is granted; and 7 2. The Clerk of the Court assign a district court judge to this case. 8 IT IS HEREBY RECOMMENDED that petitioner’s application for writ of habeas corpus 9 be summarily dismissed. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 12 after being served with these findings and recommendations, petitioner may file written 13 objections with the court. Such a document should be captioned “Objections to Magistrate 14 Judge’s Findings and Recommendations.” In his objections petitioner may address whether a 15 certificate of appealability should issue in the event he files an appeal of the judgment in this 16 case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or 17 deny a certificate of appealability when it enters a final order adverse to the applicant). Petitioenr 18 is advised that failure to file objections within the specified time may waive the right to appeal the 19 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 Dated: August 14, 2015 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 1 robi1657.dis 27 28 2

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