Wagner v. Lizzaraga
Filing
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ORDER; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 3/14/16 ORDERING that Petitioner's request for leave to proceed in forma pauperis 2 is GRANTED; and the Clerk of the Court is directed to assign a district court judge to this case; it is RECOMMENDED that Petitioner's petition for writ of habeas corpus be summarily dismissed; and this case be closed. Randomly referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Dillon, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CLINTON WAGNER,
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Petitioner,
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No. 2:16-cv-0449 CKD P
v.
ORDER and FINDINGS &
RECOMMENDATIONS
JOE LIZZARRAGA,
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Respondent.
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Petitioner, a state prisoner proceeding pro se, has filed 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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Examination of the request to proceed in forma pauperis reveals that petitioner is unable to afford
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the costs of suit. Accordingly, the request for leave to proceed in forma pauperis will be granted.
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See 28 U.S.C. § 1915(a).
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Under Rule 4 of the Rules Governing Section 2254 Cases, the court must review all
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petitions for writ of habeas corpus and summarily dismiss any petition if it is plain that the
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petitioner is not entitled to relief. The court has conducted that review.
In his petition, petitioner asks that the court order the Superior Court of Santa Clara
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County to provide plaintiff with a copy of his trial transcript. However, a district court can only
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entertain a petition for a writ of habeas corpus to the extent it is alleged that the petitioner is in
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custody in violation of federal law. 28 U.S.C. § 2254(a). Because petitioner’s claim is not
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actionable by way of a petition for writ of habeas corpus, his habeas petition should be summarily
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dismissed.
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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 No. 2) is granted; and
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2. The Clerk of the Court is directed to assign a district court judge to this case.
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IT IS HEREBY RECOMMENDED that:
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1. Petitioner’s petition for writ of habeas corpus be summarily dismissed; and
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2. This case be closed.
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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. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Petitioenr is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951
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F.2d 1153 (9th Cir. 1991).
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Dated: March 14, 2016
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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wagn0449.dis
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