Gradford v. Mule Creek State Prison

Filing 5

FINDINGS and RECOMMENDATION that the Court Dismiss the Petition for Failure to State a Claim Cognizable in Habeas Corpus; COURT CLERK to Assign District Judge - CASE ASSIGNED to District Judge Dale A. Drozd and Magistrate Judge Sheila K. Oberto. New Case No. 1:18-cv-00279 DAD SKO (HC) 1 , signed by Magistrate Judge Sheila K. Oberto on 3/1/2018: 30-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIAM J. GRADFORD,

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No. 1:18-cv-00279-SKO HC

Petitioner,
v.
MULE CREEK STATE PRISON,
Respondent.

FINDINGS AND RECOMMENDATION
THAT THE COURT DISMISS
THE PETITION FOR FAILURE
TO STATE A CLAIM COGNIZABLE
IN HABEAS CORPUS
COURT CLERK TO ASSIGN DISTRICT
JUDGE
(Doc. 1)

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Screening Order

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Petitioner, William J. Gradford, is a state prisoner proceeding pro se with a petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner contends that he is being retaliated

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against at Mule Creek State Prison for expressing his First Amendment Rights.

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I.

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Preliminary Screening
Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct a preliminary

review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it

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plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the
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Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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A petition for writ of habeas corpus should not be dismissed without leave to amend unless it

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appears that no tenable claim for relief can be pleaded were such leave to be granted. Jarvis v.

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Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

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II.

Petition States a Claim Properly Addressed in Proceedings Under § 1983
"Habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or

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duration of his confinement and seeks immediate or speedier release, even though such a claim
may come within the literal terms of § 1983." Preiser v. Rodriguez, 411 U.S. 475, 488-89 (1973).

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A federal petition for writ of habeas corpus concerns whether a petitioner is in custody in

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violation of the Constitution. 28 U.S.C. § 2254(a). Challenges to the conditions of prison life are

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properly brought under 42 U.S.C. § 1983. McCarthy v. Bronson, 500 U.S. 136, 142 (1991). A

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plaintiff may not seek both types of relief in a single action. See Heck v. Humphrey, 512 U.S.
477, 487-88 (1994); Preiser, 411 U.S. at 498-99 n. 15; Young v. Kenny, 907 F.2d 874 (9th Cir.

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1990), cert. denied sub nom Bressman v. Farrier, 498 U.S. 1126 (1991); Advisory Committee
Notes to Rule 1 of the Rules Governing Section 2254 Cases.

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Petitioner seeks redress for alleged violations of his First Amendment Rights due to

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retaliation he faces in prison. This claim is in the nature of a civil rights claim pursuant to 42

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U.S.C. § 1983, as the claim does not concern the fact or duration of petitioner’s confinement.

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Because Petitioner is not entitled to habeas corpus relief, the Court must dismiss his

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habeas corpus petition. Petitioner may pursue his claims by filing a civil rights complaint

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pursuant to 42 U.S.C. § 1983.

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III.

Certificate of Appealability

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A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a

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district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v.

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Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a

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certificate of appealability is 28 U.S.C. § 2253, which provides:

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(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.

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(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.

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(3) The certificate of appealability under paragraph (1) shall
indicate which specific issues or issues satisfy the showing required by
paragraph (2).

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If a court denies a habeas petition, the court may only issue a certificate of appealability

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"if jurists of reason could disagree with the district court's resolution of his constitutional claims

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or that jurists could conclude the issues presented are adequate to deserve encouragement to
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proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Although the petitioner is not required to prove the merits of his case, he must demonstrate

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"something more than the absence of frivolity or the existence of mere good faith on his . . .

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part." Miller-El, 537 U.S. at 338.
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Reasonable jurists would not find the Court's determination that Petitioner is not entitled

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to pursue federal habeas corpus relief to be debatable or wrong, or conclude that the issues

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presented required further adjudication. Accordingly, the Court recommends declining to issue a

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certificate of appealability.

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IV.

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Conclusion and Recommendation
The undersigned recommends that the Court (1) dismiss the petition for writ of habeas

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corpus since it does not allege grounds that would entitle Petitioner to habeas corpus relief, and
(2) decline to issue a certificate of appealability.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty

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(30) days after being served with these Findings and Recommendations, either party may file

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written objections with the Court. The document should be captioned AObjections to Magistrate

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Judge=s Findings and Recommendations.@ Replies to the objections, if any, shall be served and
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filed within fourteen (14) days after service of the objections. The parties are advised that failure

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to file objections within the specified time may constitute waiver of the right to appeal the District

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Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan,

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923 F.2d 1391, 1394 (9th Cir. 1991)).

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The Court Clerk is hereby directed to assign a district judge to this action.
IT IS SO ORDERED.

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Dated:

March 1, 2018

/s/
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Sheila K. Oberto

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UNITED STATES MAGISTRATE JUDGE

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