Franklin v. Sherman
ORDER DISMISSING 1 Petition for Writ of Habeas Corpus; ORDER DIRECTING Clerk of Court to Enter Judgment and CLOSE CASE; ORDER DIRECTING Clerk of Court to Send Petitioner Blank Form for Filing a Civil Rights Action; ORDER DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY signed by Magistrate Judge Stanley A. Boone on 5/28/2014. CASE CLOSED. (Attachments: # 1 1983 Complaint Form)(Sant Agata, S)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ROBERT DUANE FRANKLIN,
Case No. 1:14-cv-00729-SAB-HC
ORDER DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS
ORDER DIRECTING CLERK OF COURT
TO ENTER JUDGMENT AND CLOSE
ORDER DIRECTING CLERK OF COURT
TO SEND PETITIONER BLANK FORM
FOR FILING A CIVIL RIGHTS ACTION
STU SHERMAN, Warden,
ORDER DECLINING ISSUANCE OF
CERTIFICATE OF APPEALABILITY
On May 15, 2014, Petitioner filed a petition for writ of habeas corpus in this Court. He
21 has consented to the jurisdiction of the Magistrate Judge pursuant to 28 U.S.C. § 636(c).
Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary
25 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it
26 plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the
27 Rules Governing Section 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th
28 Cir.1990). A federal court may only grant a petition for writ of habeas corpus if the petitioner
1 can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. § 2254(a). A
2 habeas corpus petition is the correct method for a prisoner to challenge the “legality or duration”
3 of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v.
4 Rodriguez, 411 U.S. 475, 485 (1973)); Advisory Committee Notes to Rule 1 of the Rules
5 Governing Section 2254 Cases. In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is
6 the proper method for a prisoner to challenge the conditions of that confinement. McCarthy v.
7 Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574;
8 Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases.
In this case, Petitioner claims he was called names by a correctional officer for filing a
He further claims his personal property was taken from him.
11 challenging the conditions of his confinement, not the fact or duration of that confinement.
12 Thus, Petitioner is not entitled to habeas corpus relief and this petition must be dismissed.
13 Should Petitioner wish to pursue his claims, he must do so by way of a civil rights complaint
14 pursuant to 42 U.S.C. § 1983.
CERTIFICATE OF APPEALABILITY
A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a
18 district court’s denial of his petition, and an appeal is only allowed in certain circumstances.
19 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining
20 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.
(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
(B) the final order in a proceeding under section 2255.
(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
7 appealability “if jurists of reason could disagree with the district court’s resolution of his
8 constitutional claims or that jurists could conclude the issues presented are adequate to deserve
9 encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S.
10 473, 484 (2000). While the petitioner is not required to prove the merits of his case, he must
11 demonstrate “something more than the absence of frivolity or the existence of mere good faith on
12 his . . . part.” Miller-El, 537 U.S. at 338.
In the present case, the Court finds that reasonable jurists would not find the Court’s
14 determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or
15 deserving of encouragement to proceed further. Petitioner has not made the required substantial
16 showing of the denial of a constitutional right. Accordingly, the Court hereby DECLINES to
17 issue a certificate of appealability.
Accordingly, IT IS HEREBY ORDERED:
1) The petition for writ of habeas corpus is DISMISSED WITH PREJUDICE;
2) The Clerk of Court is DIRECTED to enter judgment and terminate the case;
3) The Clerk of Court is DIRECTED to send Petitioner blank forms for filing a civil
rights action pursuant to 42 U.S.C. § 1983; and
4) The Court DECLINES to issue a certificate of appealability.
IT IS SO ORDERED.
May 28, 2014
UNITED STATES MAGISTRATE JUDGE
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