Franklin v. Dickinson

Filing 13

ORDER signed by Magistrate Judge Carolyn K. Delaney on 3/30/2012 ORDERING that the 5 Findings and Recommendations are VACATED; petitioner's application for writ of habeas corpus is DISMISSED without prejudice; and petitioner has 30 days to file an amended petition. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT DUANE FRANKLIN,

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Petitioner,

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No. CIV S-11-2498 MCE CKD P

vs.
KATHLEEN L. DICKINSON,

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Respondent.

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ORDER
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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. On October 7, 2011, the undersigned issued

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findings and a recommendation that the petition be summarily dismissed because it challenged

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petitioner’s conditions of confinement, and thus should have been brought pursuant to 42 U.S.C.

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§ 1983.

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On December 1, 2011, petitioner filed objections to the findings and

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recommendations, stating that he “now seeks to invalidate (an) order which revoked his parole.”

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(Dkt. No. 10 at 3.) The court will therefore vacate its earlier recommendation of summary

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dismissal and grant petitioner leave to file an amended petition challenging the duration of his

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confinement pursuant to 28 U.S.C. § 2254. Petitioner is advised that any claims in the amended

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petition concerning conditions of confinement – e.g., retaliation or denial of family visits – are
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not cognizable under section 2254 and will be disregarded.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed October 7, 2011, are vacated;

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2. Petitioner’s application for a writ of habeas corpus is dismissed without

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prejudice; and

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3. Petitioner is granted thirty days from service of this order to file an amended
petition, titled “First Amended Petition.”
Dated: March 30, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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/fran2498.vac

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