Torrez v. Youngblood et al

Filing 6

FINDINGS and RECOMMENDATIONS Regarding Petition for Writ of Habeas Corpus; ORDER DIRECTING Clerk of Court to Assign District Court Judge to the Present Matter, referred to Judge Ishii, signed by Magistrate Judge Michael J. Seng on 10/16/2012. Objections to F&R Due Within Thirty Days. (Attachments: # 1 1983 Complaint Form) (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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FENTON MICHAEL TORREZ,

1:12-cv-01626 MJS HC

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Petitioner,
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v.

FINDINGS AND RECOMMENDATION
REGARDING PETITION FOR WRIT OF
HABEAS CORPUS

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(Doc. 1)
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DONNIE YOUNGBLOOD,
Respondent.

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ORDER DIRECTING CLERK OF COURT
TO ASSIGN DISTRICT COURT JUDGE TO
/ THE PRESENT MATTER

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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2241.

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I.

FACTUAL BACKGROUND

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Petitioner is currently in the custody of the Bureau of Prisons (BOP). Petitioner was

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sentenced in the Eastern District of California to 48 months imprisonment and one year

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supervised release for violation of 21 U.S.C. § 843(b).

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Petitioner asserts that his due process rights were violated when he was unable to

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have access to the law library and the courts, make copies, and perform legal research.

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II.

APPLICABLE STANDARD OF HABEAS CORPUS REVIEW

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Writ of habeas corpus relief extends to a person in custody under the authority of

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the United States. See 28 U.S.C. § 2241. Relief is available if a federal prisoner can show

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he is "in custody in violation of the Constitution or laws or treaties of the United States." 28

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U.S.C. § 2241(c)(3). Petitioner's claims are proper under 28 U.S.C. § 2241 and not 28

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U.S.C. § 2255 because they concern the manner, location, or conditions of the execution
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of petitioner's sentence and not the fact of petitioner's conviction or sentence. See Tucker

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v. Carlson, 925 F.2d 330, 331 (9th Cir. 1991) (stating that a challenge to the execution of

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a sentence is "maintainable only in a petition for habeas corpus filed pursuant to 28 U.S.C.

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§ 2241"). Venue is proper in this District as Petitioner is challenging the execution of his

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sentence at USP Atwater, which is within the Eastern District of California.

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A.

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The instant petition must be dismissed because it does not challenge the fact or

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Failure to State Cognizable Claim

duration of Petitioner’s confinement.

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A federal court may only grant a petition for writ of habeas corpus if the petitioner

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can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. § 2254(a).

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A habeas corpus petition is the correct method for a prisoner to challenge the “legality or

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duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991), quoting,

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Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Advisory Committee Notes to Rule 1 of

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the Rules Governing Section 2254 Cases.

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In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method

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for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500

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U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory

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Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases.

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In the present case, Petitioner challenges the conditions of his confinement, not the

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validity of his sentence. Petitioner asserts only that he has been denied access to the court

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and the ability to prepare his legal documents. Relief, if granted for Petitioner's claims,

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would not necessarily result in reducing or affecting the length of Petitioner's confinement.

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As a result, he cannot pursue his grievances against prison officials by seeking a writ of

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habeas corpus.

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As it does not appear possible that the deficiencies identified herein can be cured

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by amending the complaint, Petitioner is not entitled to leave to amend prior to dismissal

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of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en

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banc).
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In an appropriate case a habeas petition may be construed as a Section 1983

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complaint. Wilwording v. Swenson, 404 U.S. 249, 251, 92 S. Ct. 407, 30 L. Ed. 2d 418

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(1971). Although the Court may construe a habeas petition as a civil rights action, it is not

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required to do so. Since the time when the Wilwording case was decided there have been

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significant changes in the law. For instance, the filing fee for a habeas petition is five

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dollars, and if leave to proceed in forma pauperis is granted, the fee is forgiven. For civil

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rights cases, however, the fee is now $350 and under the Prisoner Litigation Reform Act

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the prisoner is required to pay it, even if granted in forma pauperis status, by way of

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deductions from income to the prisoner's trust account. See 28 U.S.C. 1915(b)(1). A

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prisoner who might be willing to file a habeas petition for which he or she would not have

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to pay a filing fee might feel otherwise about a civil rights complaint for which the $350 fee

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would be deducted from income to his or her prisoner account. Also, a civil rights complaint

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which is dismissed as malicious, frivolous, or for failure to state a claim would count as a

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"strike" under 28 U.S.C. § 1915(g), which is not true for habeas cases.

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In view of these potential consequences for Petitioner if the petition were construed

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as a civil rights complaint, it is recommended that the case be DISMISSED without

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prejudice to Petitioner to present the claims in a separately numbered civil rights complaint

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pursuant to 42 U.S.C. § 1983, rather than a habeas petition. The Clerk of Court shall send

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Petitioner a blank civil rights complaint form along with a copy of this Order.

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III.

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RECOMMENDATION
Based on the foregoing, it is HEREBY RECOMMENDED that the petition for writ of

habeas corpus be DISMISSED for failure to state a cognizable claim.

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These Findings and Recommendations are submitted to the assigned United States

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District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule

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304 of the Local Rules of Practice for the United States District Court, Eastern District of

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California. Within thirty (30) days after being served with a copy, Petitioner may file written

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objections with the Court. Such a document should be captioned "Objections to Magistrate

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Judge's Findings and Recommendations. The Court will then review the Magistrate Judge's
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ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file

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objections within the specified time may waive the right to appeal the District Court's order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
92b0h

October 16, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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