Reyes v. Lopez

Filing 6

ORDER DISMISSING Petition for Writ of Habeas Corpus for Failing to State Cognizable Claim, signed by Magistrate Judge Michael J. Seng on 7/21/10: The Petition is DISMISSED, with prejudice; Clerk of Court is DIRECTED to enter judgment; and Court DECLINES TO ISSUE A CERTIFICATE OF APPEALABILITY. (CASE CLOSED)(Hellings, J)

(HC) Reyes v. Lopez

Doc. 6

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 R. LOPEZ, Warden, 13 Respondent. 14 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas 16 corpus under the authority of 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the 17 parties have consented to the jurisdiction of the United States Magistrate Judge. Local 18 Rule 305(b). 19 Petitioner filed the instant petition for writ of habeas corpus on April 12, 2010 (Pet., 20 ECF No. 1.) In it he seeks relief based on allegations that he was improperly denied 21 written material considered sexually explicit by the California Department of Corrections. 22 (P. & A. 1, ECF No. 1 at 7.) 23 I. 24 A. 25 Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part: 26 27 28 -1Dockets.Justia.com

UNITED STATES DISTRICT COURT

JOE RUDY REYES, Petitioner, v.

1:10-cv-00637 MJS (HC) ORDER DISMISSING PETITION FOR W RIT OF HABEAS CORPUS FOR FAILING TO STATE COGNIZABLE CLAIM [Doc. 1]

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DISCUSSION Procedural Grounds for Summary Dismissal

If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.

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The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). B. Failure to State Cognizable Claim

The instant petition must be dismissed because it does not challenge the fact or duration of Petitioner's confinement. 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 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. "Habeas jurisdiction is absent, and a § 1983 action proper, where a successful challenge to a prison condition will not necessarily shorten the prisoner's sentence." Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003). Petitioner's claims do not implicate the fact or duration of his confinement. They seek redress from a decision of California Department of Corrections to deny him access to material found to be sexually explicit. (Pet.) Petitioner explicitly states that he "does not challenge his conviction or sentence." (Id. at 1.) Petitioner's claims are not cognizable grounds for federal habeas corpus relief and must be dismissed. C. Certificate of Appealability

A state prisoner seeking a writ of habeas corpus has no absolute entitlement to -2-

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appeal a district court's denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from­ (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255.

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(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). If a court denies a petitioner's petition, the court may only issue a certificate of appealability "if jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 123 S.Ct. at 1034; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the merits of his case, he must demonstrate "something more than the absence of frivolity or the existence of mere good faith on his . . . part." Miller-El, 123 S.Ct. at 1040. In the present case, the Court finds that reasonable jurists would not find debatable or wrong the Court's determination that Petitioner is not entitled to federal habeas corpus -3-

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relief, nor would they find him deserving of encouragement to proceed further. Petitioner has not made the required substantial showing of the denial of a constitutional right. Accordingly, the Court hereby DECLINES to issue a certificate of appealability. ORDER Accordingly, IT IS HEREBY ORDERED that: 1. The Petition for Writ of Habeas Corpus is DISMISSED with prejudice; 2. The Clerk of Court is DIRECTED to enter judgment; and 3. The Court DECLINES to issue a certificate of appealability.

IT IS SO ORDERED. Dated: ci4d6 July 21, 2010 /s/ UNITED STATES MAGISTRATE JUDGE

Michael J. Seng

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