(HC) Bartlett v. Penzone, No. 2:2018cv02598 - Document 12 (E.D. Cal. 2019)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 1/18/2019 RECOMMENDING petitioner's 11 amended petition for writ of habeas corpus be summarily dismissed. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days. (Yin, K)
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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALAN M. BARTLETT, 12 Petitioner, 13 14 No. 2:18-CV-2598-TLN-DMC-P v. FINDINGS AND RECOMMENDATIONS PAUL PENZONE, 15 Respondent. 16 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 17 18 habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s first 19 amended petition for a writ of habeas corpus (Doc. 11). Rule 4 of the Federal Rules Governing Section 2254 Cases provides for summary 20 21 dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and any exhibits 22 annexed to it that the petitioner is not entitled to relief in the district court.” In the instant case, it 23 is plain that petitioner is not entitled to federal habeas relief. Petitioner, who is incarcerated in 24 Arizona, claims the California State Bar violated his constitutional rights by denying him a “‘full 25 and fair’ evidentiary hearing” in the context of his misconduct claim against attorney Phillip 26 Trevino. Petitioner does not challenge his underlying conviction, nor does petitioner seek an 27 /// 28 /// 1 1 earlier or immediate release from prison.1 2 To state a cognizable federal habeas corpus claim, the petitioner must assert he is 3 “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 4 § 2254(a). To satisfy this requirement, the petitioner must allege a nexus between his claims and 5 the unlawful nature of the custody. See Bailey v. Hill, 599 F.3d 976, 978-80 (9th Cir. 2010). In 6 this case, petitioner cannot allege such a nexus because his claims of constitutional error in the 7 context of a state bar proceeding do not relate to his custody, let alone suggest the unlawful nature 8 of such custody. Based on the foregoing, the undersigned recommends that petitioner’s first 9 10 amended petition for a writ of habeas corpus (Doc. 11) be summarily dismissed. 11 These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 13 after being served with these findings and recommendations, any party may file written 14 objections with the court. Responses to objections shall be filed within 14 days after service of 15 objections. Failure to file objections within the specified time may waive the right to appeal. See 16 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 18 19 Dated: January 18, 2019 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 1 To the extent petitioner was attempting to state a claim based on ineffective assistance of counsel, the court dismissed plaintiff’s original petition with leave to amend. See Doc. 9 (November 2, 2018, order). Petitioner has not indicated in the first amended petition any desire to present an ineffective assistance of counsel claim. To the contrary, the first amended petition is virtually identical to the original petition. 2
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