Hoffman v. Bosenko

Filing 6

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/22/2017 GRANTING petitioner's 5 request to proceed IFP. Petitioner's application for writ of habeas corpus under 28 U.S.C. § 2241 DISMISSED with leave to amend within 30 days.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KASEY FREDERICK HOFFMAN,

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No. 2:16-cv-1013-EFB P

Petitioner,
v.

ORDER

TOM BOSENKO,

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Respondent.

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Petitioner was a pretrial detainee at that time he commenced this proceeding without

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counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He seeks leave to proceed

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in forma pauperis. See 28 U.S.C. § 1915(a). Examination of the in forma pauperis affidavit

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

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Petitioner alleges that his cell was searched and officers found a razor that was not his.

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Petitioner claims he was maliciously charged for the cost of the razor, and denied due process

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through a fair and proper hearing in accordance with the California Penal Code and CDCR

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regulations. Petitioner also complains that the district attorney charged him with second degree

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robbery.1 As relief, petitioner requests reimbursement and that the County Jail be ordered “to

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remove the debt on [his] trust account.” ECF No. 1 at 9.

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It is not clear whether these charges were based on the razor found in petitioner’s cell or
on some other offense.

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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. See Rules 1(b) & 4, Rules

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Governing Section 2254 Cases. The court must summarily dismiss a petition if it “plainly

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appears . . . that the petitioner is not entitled to relief . . . .”

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Here, the petition must be dismissed with leave to amend because it fails to demonstrate

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that petitioner is entitled to habeas relief. A writ of habeas corpus cannot issue under 28 U.S.C.

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§ 2241 unless a prisoner is in custody in violation of federal law. 28 U.S.C. § 2241(c)(3).

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Moreover, a section 2241 petition serves as a vehicle for attacking the execution of one’s

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sentence. White v. Lambert, 370 F.3d 1002, 1009 (9th Cir. 2004). Petitioner neither asserts that

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he is in custody in violation of federal law, nor challenges the execution of his sentence. Rather,

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petitioner identifies himself as a pretrial detainee facing charges brought under state law, and his

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claims appear related to the conditions of his confinement.2 Therefore, there is no apparent basis

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for relief pursuant to § 2241.

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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. 5) is granted.

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2. Petitioner’s application for writ of habeas corpus under 28 U.S.C. § 2241 is dismissed

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with leave to amend. If petitioner wishes to proceed with this habeas action, he shall file

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an amended petition within 30 days from the date of this order. Any amended petition

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shall clarify the legal and factual basis of his claims and demonstrate that relief is proper

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pursuant to § 2241.

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DATED: March 22, 2017.

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If petitioner wishes to initiate an action regarding his conditions of confinement, he
should commence a civil action pursuant to 42 U.S.C. § 1983.
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