Woolever v. Rosairo et al

Filing 8

ORDER signed by Magistrate Judge Allison Claire on 09/21/15 granting 5 Motion to Proceed IFP. The petition for writ of habeas corpus 1 is summarily dismissed. This case is closed. The court declines to issue the certificate of appealability. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT ALVIN WOOLEVER, JR.,

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No. 2:15-cv-1457 AC P

Petitioner,

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v.

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ROSARIO, et al.,

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ORDER

Respondents.

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Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis.

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Petitioner has consented to the jurisdiction of the undersigned United States Magistrate Judge for

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all purposes, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). See ECF Nos. 6-7.

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Examination of the in forma pauperis application reveals that petitioner is unable to afford

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the costs of suit. Accordingly, the application to proceed in forma pauperis, see ECF Nos. 2 & 5,

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is granted. See 28 U.S.C. § 1915(a).

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Under Rule 4 of the Rules Governing Section 2254 Cases, the court is required to conduct

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a preliminary review of all petitions for writ of habeas corpus filed by state prisoners. Pursuant to

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Rule 4, this court must summarily dismiss a petition if it “plainly appears from the petition and

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any attached exhibits that the petitioner is not entitled to relief in the district court.”

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Review of the instant petition indicates that petitioner is attempting to pursue a civil rights
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action against three correctional officers for excessive force. See ECF No. 1 at 1, 5, 7, 12-5.
This court may entertain an application for writ of habeas corpus by a state prisoner only

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on the ground that he is in custody in violation of federal law. See 28 U.S.C. § 2254(a). Because

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the petition fails to allege that petitioner is in custody in violation of federal law, based on a

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challenge to his underlying conviction or sentence, a writ of habeas corpus cannot issue in this

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action. Therefore, petitioner’s habeas petition must be dismissed.

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Should petitioner wish to pursue his civil rights claims, he must do so in a newly-filed

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action, together with a new request to proceed in forma pauperis, on the forms provided with this

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order. Petitioner must submit the forms to the court as a new action, without reference to the

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instant case or case number.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s request for leave to proceed in forma pauperis, ECF Nos. 2 & 5, is granted;

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2. The petition for writ of habeas corpus, ECF No. 1, is summarily dismissed;

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3. This case is closed;

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4. The court declines to issue the certificate of appealability referenced in 28 U.S.C.

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§2253; and
5. As a courtesy to petitioner, the Clerk of Court is directed to send petitioner, together

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with a copy of this order the forms used by prisoners in this district to request leave to proceed in

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forma pauperis and to pursue a civil rights action pursuant to 42 U.S.C. § 1983. Should petitioner

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wish to pursue his civil rights claims, he must do so in a newly-filed action on the forms provided

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with this order, without reference to the instant case or case number.

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DATED: September 21, 2015

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