Washington v. Fresno County Sheriff

Filing 4

FINDINGS and RECOMMENDATIONS recommending that the Habeas Corpus Petition be DISMISSED for Petitioner's Failure to State any cognizable Federal Habeas Claims re 1 Petition for Writ of Habeas Corpus filed by Perry Washington; referred to Judge Ishii, signed by Magistrate Judge Jennifer L. Thurston on 02/07/2014. Objections to F&R due by 3/6/2014 (Martin-Gill, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 PERRY WASHINGTON, 11 12 13 14 Petitioner, v. FRESNO COUNTY SHERIFF, Respondent. 15 16 17 18 19 ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:14-cv-00130-JLT FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS ORDER DIRECTING OBJECTIONS TO BE FILED WITHIN TWENTY-ONE DAYS ORDERING DIRECTING CLERK OF THE COURT TO ASSIGN DISTRICT JUDGE TO CASE Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The instant petition was filed on January 29, 2014.. Petitioner alleges that he is in custody of 20 the Fresno County Jail for failing to appear in court on time. (Doc. 1, p. 1). Petitioner does not 21 challenge either a conviction or sentence; indeed, Petitioner concedes that his case has not yet been 22 prosecuted. (Id.). Instead, Petitioner alleges that he is presently in custody and being denied adequate 23 medical care for injuries he has sustained, he is being harassed by inmates and staff, and he has been 24 denied access to a grievance form to file with the jail. (Id.; pp. 1; 2; 8). 25 26 DISCUSSION Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of 27 each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from 28 the face of the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 1 1 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.1990). A federal court may only 2 grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of 3 the Constitution… " 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a prisoner 4 to challenge the “legality or duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 5 1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485, 93 S. Ct. 1827 (1973); Ramirez v. Galaza, 334 6 F.3d 850, 859 (9th Cir. 2003)(“[H]abeas jurisdiction is absent, and a § 1983 action proper, where a 7 successful challenge to a prison condition will not necessarily shorten the prisoner’s sentence”); 8 Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. 9 The Ninth Circuit has also held that “[h]abeas corpus jurisdiction also exists when a petitioner 10 seeks expungement of a disciplinary finding from his record if expungement is likely to accelerate the 11 prisoner’s eligibility for parole.” Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989); see also 12 Docken v. Chase, 393 F. 3d 1024, 1031 (9th Cir. 2004)(“[W]e understand Bostic’s use of the term 13 ‘likely’ to identify claims with a sufficient nexus to the length of imprisonment so as to implicate, but 14 not fall squarely within, the ‘core’ challenges identified by the Preiser Court.”) 15 In contrast to a habeas corpus challenge to the length or duration of confinement, a civil rights 16 action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of 17 confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 18 931 F.2d at 574; Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. 19 In this case, Petitioner alleges that he is in custody of the Fresno County Jail for failing to 20 appear in court on time. Petitioner further alleges that he has been beaten in jail for previous lawsuits 21 he has filed against Fresno County; that he has been placed in proximity to inmates who have either 22 threatened him or assaulted him; that he has been denied access to an “emergency button”; and that he 23 is intending to file a civil damages suit but has filed this habeas petition to seek injunctive relief to be 24 placed in “protective custody.” (Doc. 1, pp. 2-5). As relief, Petitioner requests the following: an 25 injunction against the Fresno County Sheriff’s Office to prevent the destruction of a video that contains 26 evidence favoring Petitioner; an emergency hearing on Petitioner’s claims; and damages in the amount 27 of $750,000 in property damages and $1 million for “pain and suffering.” (Doc. 1, pp. 8-9). 28 Petitioner is clearly challenging the conditions of his confinement, not the fact or duration of 2 1 that confinement. Indeed, Petitioner himself concedes there has, as yet, been no trial, no conviction, 2 and no sentence. Hence, there is nothing on which to base a federal habeas petition. The only relief a 3 federal habeas court can provide a state inmate is reversal of an unconstitutionally obtained conviction 4 or a reduction in an unconstitutional sentence. No relief requested by Petitioner in his petition would 5 affect the fact or duration of Petitioner’s sentence, since he has yet to be convicted and sentenced, and, 6 in any event, this habeas Court has no authority to afford the relief Petitioner is presently requesting. 7 Therefore, Petitioner is not entitled to habeas corpus relief, and this petition must be summarily 8 dismissed. Should Petitioner wish to pursue his claims, Petitioner must do so by way of a civil rights 9 complaint pursuant to 42 U.S.C. § 1983. ORDER 10 11 12 Accordingly, the Clerk of the Court is HEREBY DIRECTED to assign a United States District Judge to this case. RECOMMENDATION 13 14 15 16 Accordingly, the Court HEREBY RECOMMENDS that the habeas corpus petition be DISMISSED for Petitioner’s failure to state any cognizable federal habeas claims. This Findings and Recommendation is submitted to the United States District Court Judge 17 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 18 Rules of Practice for the United States District Court, Eastern District of California. Within twenty-one 19 (21) days after being served with a copy, any party may file written objections with the court and serve 20 a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings 21 and Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 22 U.S.C. § 636 (b)(1)(C). Plaintiff is advised that failure to file objections within the specified time may 23 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 25 26 27 IT IS SO ORDERED. Dated: February 7, 2014 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 28 3

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