Jauregui v. Unknown

Filing 6

ORDER signed by Magistrate Judge Dale A. Drozd on 4/8/2013 ORDERING that petitioner's 5 application to proceed IFP is GRANTED; this action is SUMMARILY DISMISSED because it plainly appears from the face of the petition that petitioner is not entitled to federal habeas relief pursuant to 28 U.S.C. § 2254; and a certificate of appealability is NOT ISSUED in this action. CASE CLOSED.(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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ANGEL JAUREGUI,

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Petitioner,

No. 2:13-cv-00424 DAD P

Respondent.

ORDER

vs.
UNKNOWN,

/
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. Petitioner has consented to Magistrate Judge

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jurisdiction over this action pursuant to 28 U.S.C. § 636(c). See Doc. No. 4.

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Pursuant to the court’s order filed March 14, 2013, petitioner has submitted an

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application requesting leave to proceed in forma pauperis. Examination of the in forma pauperis

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application reveals that petitioner is unable to afford the costs of suit. Accordingly, the

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application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

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In his pending federal habeas petition, petitioner challenges only his removal from

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double cell status and placement in single cell status at his institution of confinement. This type

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of prison housing issue does not affect the duration of petitioner’s custody. Furthermore, the

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court will decline to construe petitioner’s application for habeas relief as a civil rights complaint
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because prisoners have no constitutional right to a particular classification status, Hernandez v.

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Johnston, 833 F.2d 1316, 1318 (9th Cir.1987), nor do they enjoy the right to be incarcerated at a

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particular correctional facility, see Meachum v. Fano, 427 U.S. 215, 224-25 (1976). Similarly, a

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prisoner has no constitutional right to receiving a classification calling for his double-celling.

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Petitioner was advised in the court’s March 14, 2013 order that should he proceed

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with this action, the court would likely dismiss the action because in his pending habeas petition

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he does not challenge the fact or duration of his custody. (Doc. No. 3 at 1-2.) Therefore and for

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the reasons previously indicated, this habeas action will be summarily dismissed. See Rule 4 of

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the Rules Governing Section 2254 Cases (“If it plainly appears from the petition . . . that the

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petitioner is not entitled to relief in the district court, the judge must dismiss the petition. . . .”).

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Rule 11 of the Federal Rules Governing Section 2254 Cases states that “[t]he

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district court must issue or deny a certificate of appealability when it enters a final order adverse

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to the applicant.” A certificate of appealability should be granted for any issue that petitioner can

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demonstrate is “‘debatable among jurists of reason,’” could be resolved differently by a different

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court, or is “‘adequate to deserve encouragement to proceed further.’” Jennings v. Woodford,

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290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). For

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the reasons set forth above, undersigned declines to issue a certificate of appealability in this

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case.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s March 26, 2013 application to proceed in forma pauperis (Doc.

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No. 5) is granted;

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2. This action is summarily dismissed because it plainly appears from the face of

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the petition that petitioner is not entitled to federal habeas relief pursuant to 28 U.S.C. § 2254;

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and

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A certificate of appealability is not issued in this action.

DATED: April 8, 2013.

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DAD:4
jaur424.156

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