(HC) Hemsley v. U.S. Marshal, No. 2:2018cv00634 - Document 7 (E.D. Cal. 2018)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 5/21/2018 GRANTING 2 Motion to Proceed IFP; ORDERING Clerk of Court to assign a district court judge to this case; and RECOMMENDING that 1 Petition be dismissed. Assigned and referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
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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 RICHARD DAVID HEMSLEY, 12 No. 2:18-cv-0634 CKD P Petitioner, 13 v. 14 U.S. MARSHAL, 15 ORDER AND FINDINGS AND RECOMMENDATIONS Respondent. 16 Petitioner has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, 17 18 together with a request to proceed in forma pauperis. Examination of the in forma pauperis 19 affidavit reveals that petitioner is unable to afford the costs of suit. Accordingly, the request for 20 leave to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(a). Petitioner is a pro se defendant in 2:13-cr-0300 GEB; criminal proceedings which are 21 22 ongoing in this court. In the petition filed in this action, petitioner challenges the district court’s 23 decision to order petitioner detained prior to trial. Title 18 U.S.C. § 3145 sets out the procedures 24 available to a criminal defendant for challenging a pretrial order of detention. The procedures 25 include an opportunity to appeal. A review of the docket in 2:13-cr-0300 GEB reveals that 26 petitioner utilized the procedures available to him, including appeal. His appeal was denied by 27 the Ninth Circuit on March 1, 2018, shortly before petitioner filed his § 2241 petition. 28 ///// 1 1 Essentially, the § 2241 petition is an attempt to appeal the Ninth Circuit’s decision. Of 2 course, this court has no authority to review a decision made by the Ninth Circuit and the Ninth 3 Circuit has specifically held that an issue decided on direct appeal is not reviewable in a habeas 4 action. Stein v. United States, 390 F.2d 625, 626 (9th Cir. 1968). For these reasons, the court 5 will recommend that petitioner’s § 2241 petition be dismissed. 6 In accordance with the above, IT IS HEREBY ORDERED that: 7 1. Petitioner’s request to proceed in forma pauperis (ECF No. 2) is granted; and 8 2. The Clerk of the Court assign a district court judge to this case. 9 IT IS HEREBY RECOMMEDED that petitioner’s 28 U.S.C. § 2241 petition be 10 dismissed. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 13 after being served with these findings and recommendations, petitioner may file written 14 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 15 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 16 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 17 F.2d 1153 (9th Cir. 1991). 18 Dated: May 21, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 1 hems0634.frs 25 26 27 28 2
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