Edwards v. McDonald
Filing
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ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/1/2011 ORDERING the clerk to serve a copy of the petition together with a copy of these findings and recommendations on the AG; and the clerk to assign a district judge to this action; and RECOMMENDING that petitioner's 1 petition for writ of habeas corpus be summarily dismissed. Assigned and Referred to Judge Morrison C. England, Jr.; Objections due within 14 days. (cc: Michael Farrell) (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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BRIAN EDWARDS,
Petitioner,
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No. CIV S-11-3086 CKD P
vs.
M.D. McDONALD,
Respondent.
ORDER AND
/
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. The petition alleges that prison officials removed
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petitioner’s personal property and failed to return it or compensate him for it.
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Petitioner’s challenges to his conditions of confinement are properly the subject of
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an action brought pursuant to 42 U.S.C. § 1983. Such actions have different procedural and
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exhaustion requirements, and are governed by a different body of substantive law, than actions
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seeking a federal writ of habeas corpus. As the United States Supreme Court has stated:
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Federal law opens two main avenues to relief on complaints related
to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254,
and a complaint under the Civil Rights Act of 1871, Rev. Stat. §
1979, as amended, 42 U.S.C. § 1983. Challenges to the validity of
any confinement or to particulars affecting its duration are the
province of habeas corpus, Preiser v. Rodriguez, 411 U.S. 475, 500
(1973); requests for relief turning on circumstances of confinement
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may be presented in a § 1983 action. . . . Federal petitions for
habeas corpus may be granted only after other avenues of relief
have been exhausted. 28 U.S.C. § 2254(b)(1)(A). [Citation.]
Prisoners suing under § 1983, in contrast, generally face a
substantially lower gate, even with the requirement of the Prison
Litigation Reform Act of 1995 that administrative opportunities be
exhausted first. 42 U.S.C. § 1997e(a).
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Muhammad v. Close, 540 U.S.749, 750-751 (2004) (per curiam).
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Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254 provides
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for summary dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and
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any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” In the
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instant case, it is plain from the petition and appended exhibits that petitioner is not entitled to
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federal habeas relief. Therefore, the petition should be summarily dismissed.1
In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the
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Court is directed to serve a copy of the petition filed in this case together with a copy of these
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findings and recommendations on the Attorney General of the State of California. The Clerk is
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also directed to assign a district judge to this action.
IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of
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habeas corpus be summarily dismissed.
These findings and recommendations are 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)(l). Within fourteen
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days after being served with these findings and recommendations, petitioner may file written
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objections with the court. The document should be captioned “Objections to Magistrate Judge's
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Findings and Recommendations.” Any response to the objections shall be filed and served within
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fourteen days after service of the objections. Petitioner is advised that failure to file objections
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Petitioner may re-file the instant claims in an action pursuant to section 1983. Petitioner
is advised that the statutory filing fee for such an action is $350.00. 28 U.S.C. §§ 1914(a),
1915(b)(1). A section 1983 inmate plaintiff proceeding in forma pauperis is obligated to pay this fee
in monthly installments from his or her prison trust account.
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within the specified time may waive the right to appeal the District Court's order. Martinez v.
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Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: December 1, 2011
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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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edwa3086.156b
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