Phillips v. Samuels, Jr. et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 10/09/15 recommending that petitioner's application for writ of habeas corpus be dismissed without prejudice to petitioner's proper pursuit of a civil rights action. Referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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TONY PHILLIPS,
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No. 2:14-cv-2664 TLN DAD P
Petitioner,
v.
FINDINGS AND RECOMMENDATIONS
CHARLES E. SAMUELS JR. et al.,
Respondents.
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Petitioner, a federal prisoner proceeding pro se, has filed an application for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner has paid the filing fee.
THE PETITION
Rule 1(b) of the Rules Governing Section 2254 Cases (“Habeas Rules”) allows a district
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court to “apply any or all of these rules” to a habeas corpus petition even if the petition is not filed
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pursuant to § 2254. See Rule 1(b), Rules Governing Section 2254 Cases. Under Rule 4 of the
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Habeas Rules, a district court may dismiss a petition if it “plainly appears from the face of the
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petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district
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court . . . .” Rule 4, Rules Governing Section 2254 Cases. See also O’Bremski v. Maass, 915
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F.2d 418, 420 (9th Cir. 1990); Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983). The
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Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of
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habeas corpus at several stages of a case, including “summary dismissal under Rule 4; a dismissal
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pursuant to a motion by the respondent; a dismissal after the answer and petition are considered;
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or a dismissal after consideration of the pleadings and an expanded record.”
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THE PETITION
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Petitioner commenced this action by filing a petition for writ of habeas corpus pursuant to
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28 U.S.C. § 2241. Therein, petitioner complains that Chaplain Beck placed religious sanctions on
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him that continue to date. Specifically, petitioner claims that he is not allowed to lead the Sunni
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Community in prayer or teach religious classes. In terms of relief, petitioner requests restoration
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of his rights to free exercise of religion. (Pet. at 1-9.)
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DISCUSSION
Petitioner’s application for a writ of habeas corpus fails to state a cognizable claim for
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federal habeas corpus relief. Petitioner is advised that a habeas corpus petition under 28 U.S.C. §
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2241 is the proper vehicle for a federal prisoner seeking to challenge the execution of his
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sentence. See Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). Where, as here,
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petitioner seeks to challenge the conditions of his confinement he must file a civil rights
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complaint rather than a habeas corpus petition. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir.
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1991). In addition, because petitioner challenges actions allegedly taken by federal employees,
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petitioner should file any civil rights action pursuant to Bivens v. Six Unknown Named Agents,
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403 U.S. 388 (1971) and not 42 U.S.C. § 1983.
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CONCLUSION
Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for writ of
habeas corpus be dismissed without prejudice to petitioner’s proper pursuit of a civil rights action.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, petitioner may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Petitioner is advised that
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failure to file objections within the specified time may waive the right to appeal the District
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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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In any objections he elects to file, petitioner may address whether a certificate of
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appealability should issue in the event he files an appeal of the judgment in this case. See Rule
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11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a
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certificate of appealability when it enters a final order adverse to the applicant).
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Dated: October 9, 2015
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DAD:9
phil2664.156
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