McCullock v. Cate et al

Filing 7

ORDER DISMISSING Petition for Writ of Habeas Corpus; ORDER Directing Clerk of Court to Enter Judgment and Close Case; ORDER Directing Clerk of Court to Forward Forms to Petitioner for Filing Civil Rights Action signed by Magistrate Judge Gary S. Austin on 08/17/2009. CASE CLOSED. (Attachments: # 1 1983 Complaint Form)(Flores, E)

1 2 3 4 5 6 7 8 9 10 11 ROBERT J. McCULLOCK, 12 Petitioner, 13 v. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) 1:09-CV-01072 GSA HC ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE ORDER DIRECTING CLERK OF COURT TO FORWARD FORMS TO PETITIONER FOR FILING CIVIL RIGHTS ACTION

MATTHEW L. CATE, Secretary, et al., Respondents.

On June 18, 2009, Petitioner filed a petition for writ of habeas corpus in this Court. Petitioner has returned his consent/decline form indicating consent to Magistrate Judge jurisdiction. DISCUSSION Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.1990). A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the "legality or duration" of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Advisory Committee Notes 1

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to Rule 1 of the Rules Governing Section 2254 Cases. In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. In this case, Petitioner claims prison staff are denying him access to the law library. Petitioner is challenging the conditions of his confinement, not the fact or duration of that confinement. Thus, Petitioner is not entitled to habeas corpus relief, and this petition must be dismissed. Should Petitioner wish to pursue his claims, Petitioner must do so by way of a civil rights complaint pursuant to 42 U.S.C. § 1983. ORDER Accordingly, IT IS HEREBY ORDERED: 1) The petition for writ of habeas corpus is DISMISSED because the petition does not allege grounds that would entitle Petitioner to habeas corpus relief. 2) The Clerk of Court is DIRECTED to enter judgment and close the case; and 3) The Clerk of Court is DIRECTED to send Petitioner the standard form for claims pursuant to 42 U.S.C. § 1983.

IT IS SO ORDERED. Dated: 6i0kij

August 17, 2009

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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