(HC) Ingram v. Sloan et al, No. 2:2018cv01274 - Document 4 (E.D. Cal. 2018)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 6/8/2018 ORDERING Clerk to randomly assign a district judge to this case and RECOMMENDING this action be dismissed because it is not cognizable under 28 U.S.C. §§ 2241, 2254, or 2255. Assigned and referred to Judge Kimberly J. Mueller. 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 MICHAEL D. INGRAM, 12 13 14 15 No. 2:18-cv-1274 DB Petitioner, v. ORDER AND FINDINGS AND RECOMMENDATIONS TIMOTHY SLOAN, et al., Respondent. 16 17 Petitioner Michael Ingram has filed this action as a petition for a writ of habeas corpus 18 under 28 U.S.C. § 2254. However, Mr. Ingram identifies himself as the “plaintiff” and the 19 responding parties as “defendant.” (ECF No. 1 at 1.) Those defendants are Timothy Sloan, 20 apparently an employee of Wells Fargo Bank; Wells Fargo Bank; and World Savings Bank. The 21 subject of the petition is a loan and deed of trust. (Id.) 22 Rule 4 of the Rules Governing § 2254 Cases requires the court to make a preliminary 23 review of each petition for writ of habeas corpus. The court must dismiss a petition "[i]f it plainly 24 appears from the petition . . . that the petitioner is not entitled to relief." Rule 4, Rules Governing 25 § 2254 Cases; Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). 26 A petition for a writ of habeas corpus is appropriate only for an action seeking to 27 challenge a detention. A petitioner must be in custody in order to challenge his detention. See 28 28 U.S.C. §§ 2241(c), 2254(a), 2255. Because custody is a statutory jurisdictional prerequisite, a 1 1 federal district court may only consider a habeas petition if the petitioner was in custody at the 2 time of filing of the petition. See Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam); 3 Bailey v. Hill, 599 F.3d 976, 978-79 (9th Cir. 2010). In the present case, petitioner is neither 4 challenging a detention nor is he in custody. Accordingly, this action should be dismissed. 5 6 7 8 9 For the foregoing reasons, the Clerk of the Court is HEREBY ORDERED to randomly assign a district judge to this case; and IT IS RECOMMENDED that this action be dismissed because it is not cognizable under 28 U.S.C. §§ 2241, 2254, or 2255. These findings and recommendations will be submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, petitioner may file written 12 objections with the court. The document should be captioned “Objections to Magistrate Judge's 13 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 14 specified time may result in waiver of the right to appeal the district court’s order. Martinez v. 15 Ylst, 951 F.2d 1153 (9th Cir. 1991). In the objections, petitioner may address whether a 16 certificate of appealability should issue in the event an appeal of the judgment in this case is filed. 17 See Rule 11, Rules Governing § 2254 Cases (the district court must issue or deny a certificate of 18 appealability when it enters a final order adverse to the applicant). 19 Dated: June 8, 2018 20 21 22 23 DLB:9 DB/prisoner-habeas/ingr1274.scrn fr 24 25 26 27 28 2

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