(HC) Turner v. Diaz, No. 2:2019cv02080 - Document 6 (E.D. Cal. 2020)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 04/24/2020 GRANTING 5 Motion to Proceed IFP and DIRECTING the clerk to randomly assign a District Judge. District Judge Troy L. Nunley added. It is hereby RECOMM ENDED that 1 Petition for Writ of Habeas Corpus be dismissed for failure to state a cognizable federal claim. Referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Tupolo, A)

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(HC) Turner v. Diaz Doc. 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD LEE TURNER, 12 No. 2:19-cv-2080-EFB P Petitioner, 13 v. 14 RALPH DIAZ, 15 ORDER AND FINDINGS AND RECOMMENDATIONS Respondent. 16 17 Petitioner is a state prisoner who, proceeding pro se, seeks a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. He has filed an application to proceed in forma pauperis (ECF No. 19 5) which makes the required showing and is granted. However, for the reasons stated below his 20 petition (ECF No. 1) does not state a viable federal habeas claim. 21 I. Legal Standards 22 The court must dismiss a habeas petition or portion thereof if the prisoner raises claims 23 that are legally “frivolous or malicious” or fail to state a basis on which habeas relief may be 24 granted. 28 U.S.C. § 1915A(b)(1),(2). The court must dismiss a habeas petition “[i]f it plainly 25 appears from the petition and any attached exhibits that the petitioner is not entitled to relief[.]” 26 Rule 4, Rules Governing Section 2254 Cases. 27 ///// 28 ///// 1 Dockets.Justia.com 1 II. 2 Petitioner raises only a single ground in his petition: that, in 2005 and in this district, he Analysis 3 settled a case for one million dollars and there is an “issue regarding settlement payment.” ECF 4 No. 1 at 4. Since he is not attacking his conviction, a habeas petition is not the appropriate 5 vehicle for this claim. See 28 U.S.C. § 2254(a) (“The Supreme Court, a Justice thereof, a circuit 6 judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a 7 person in custody pursuant to the judgment of a State court only on the ground that he is in 8 custody in violation of the Constitution or laws or treaties of the United States.”) (emphasis 9 added). 10 The court also declines to convert this action to a section 1983 action. First, plaintiff has 11 given no explicit indication that he would be amenable to such conversion if his habeas petition 12 were deemed improper.1 Second, a separate section 1983 action is not the proper vehicle for 13 enforcing a settlement agreement reached in a different case.2 See, e.g., Dorrough v. Gonzalez, 14 No. 1:08-cv-00634 AWI DLB PC, 2009 WL 3300266, 2009 U.S. Dist. LEXIS 95671, *9 (E.D. 15 Cal. Oct. 13, 2009) (“Plaintiff's filing of a Section 1983 action is not the proper vehicle for 16 enforcement of a settlement agreement reached in a different federal case.”). 17 III. 18 Accordingly, it is ORDERED that: 19 1. Petitioner’s application to proceed in forma pauperis (ECF No. 5) is GRANTED; and 20 2. The Clerk of Court shall randomly assign a United States District Judge to this case. 21 Further, it is HEREBY RECOMMENDED that the petition (ECF No. 1) be DISMISSED 22 23 Conclusion for failure to state a cognizable federal claim. These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 25 after being served with these findings and recommendations, any party may file written 26 27 28 1 The court notes that the filing fee for a section 1983 case is far higher than the filing fee for a habeas petition. 2 Petitioner has not identified the case in which the settlement was reached. 2 1 objections with the court and serve a copy on all parties. Such a document should be captioned 2 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 3 within the specified time may waive the right to appeal the District Court’s order. Turner v. 4 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In 5 his objections petitioner may address whether a certificate of appealability should issue in the 6 event he files an appeal of the judgment in this case. See Rule 11, Rules Governing § 2254 Cases 7 (the district court must issue or deny a certificate of appealability when it enters a final order 8 adverse to the applicant). 9 DATED: April 24, 2020. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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