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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KASEY FREDERICK HOFFMAN, 12 13 14 No. 2:16-cv-1013-EFB P Petitioner, v. ORDER TOM BOSENKO, 15 Respondent. 16 17 Petitioner was a pretrial detainee at that time he commenced this proceeding without 18 counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He seeks leave to proceed 19 in forma pauperis. See 28 U.S.C. § 1915(a). Examination of the in forma pauperis affidavit 20 reveals that petitioner is unable to afford the costs of suit. 21 Petitioner alleges that his cell was searched and officers found a razor that was not his. 22 Petitioner claims he was maliciously charged for the cost of the razor, and denied due process 23 through a fair and proper hearing in accordance with the California Penal Code and CDCR 24 regulations. Petitioner also complains that the district attorney charged him with second degree 25 robbery.1 As relief, petitioner requests reimbursement and that the County Jail be ordered “to 26 remove the debt on [his] trust account.” ECF No. 1 at 9. 27 28 1 It is not clear whether these charges were based on the razor found in petitioner’s cell or on some other offense. 1 Under Rule 4 of the Rules Governing Section 2254 Cases, the court is required to conduct 2 a preliminary review of all petitions for writ of habeas corpus. See Rules 1(b) & 4, Rules 3 Governing Section 2254 Cases. The court must summarily dismiss a petition if it “plainly 4 appears . . . that the petitioner is not entitled to relief . . . .” 5 Here, the petition must be dismissed with leave to amend because it fails to demonstrate 6 that petitioner is entitled to habeas relief. A writ of habeas corpus cannot issue under 28 U.S.C. 7 § 2241 unless a prisoner is in custody in violation of federal law. 28 U.S.C. § 2241(c)(3). 8 Moreover, a section 2241 petition serves as a vehicle for attacking the execution of one’s 9 sentence. White v. Lambert, 370 F.3d 1002, 1009 (9th Cir. 2004). Petitioner neither asserts that 10 he is in custody in violation of federal law, nor challenges the execution of his sentence. Rather, 11 petitioner identifies himself as a pretrial detainee facing charges brought under state law, and his 12 claims appear related to the conditions of his confinement.2 Therefore, there is no apparent basis 13 for relief pursuant to § 2241. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Petitioner’s request for leave to proceed in forma pauperis (ECF No. 5) is granted. 16 2. Petitioner’s application for writ of habeas corpus under 28 U.S.C. § 2241 is dismissed 17 with leave to amend. If petitioner wishes to proceed with this habeas action, he shall file 18 an amended petition within 30 days from the date of this order. Any amended petition 19 shall clarify the legal and factual basis of his claims and demonstrate that relief is proper 20 pursuant to § 2241. 21 DATED: March 22, 2017. 22 23 24 25 26 27 28 2 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. 2

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