Ingram v. Sloan et al
Filing
4
ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 6/8/2018 ORDERING Clerk to randomly assign a district judge to this case and RECOMMENDING this action be dismissed because it is not cognizable under 28 U.S.C. §§ 2241, 2254, or 2255. Assigned and referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
MICHAEL D. INGRAM,
12
13
14
15
No. 2:18-cv-1274 DB
Petitioner,
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
TIMOTHY SLOAN, et al.,
Respondent.
16
17
Petitioner Michael Ingram has filed this action as a petition for a writ of habeas corpus
18
under 28 U.S.C. § 2254. However, Mr. Ingram identifies himself as the “plaintiff” and the
19
responding parties as “defendant.” (ECF No. 1 at 1.) Those defendants are Timothy Sloan,
20
apparently an employee of Wells Fargo Bank; Wells Fargo Bank; and World Savings Bank. The
21
subject of the petition is a loan and deed of trust. (Id.)
22
Rule 4 of the Rules Governing § 2254 Cases requires the court to make a preliminary
23
review of each petition for writ of habeas corpus. The court must dismiss a petition "[i]f it plainly
24
appears from the petition . . . that the petitioner is not entitled to relief." Rule 4, Rules Governing
25
§ 2254 Cases; Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).
26
A petition for a writ of habeas corpus is appropriate only for an action seeking to
27
challenge a detention. A petitioner must be in custody in order to challenge his detention. See 28
28
U.S.C. §§ 2241(c), 2254(a), 2255. Because custody is a statutory jurisdictional prerequisite, a
1
1
federal district court may only consider a habeas petition if the petitioner was in custody at the
2
time of filing of the petition. See Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam);
3
Bailey v. Hill, 599 F.3d 976, 978-79 (9th Cir. 2010). In the present case, petitioner is neither
4
challenging a detention nor is he in custody. Accordingly, this action should be dismissed.
5
6
7
8
9
For the foregoing reasons, the Clerk of the Court is HEREBY ORDERED to randomly
assign a district judge to this case; and
IT IS RECOMMENDED that this action be dismissed because it is not cognizable under
28 U.S.C. §§ 2241, 2254, or 2255.
These findings and recommendations will be submitted to the United States District Judge
10
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
11
after being served with these findings and recommendations, petitioner may file written
12
objections with the court. The document should be captioned “Objections to Magistrate Judge's
13
Findings and Recommendations.” Petitioner is advised that failure to file objections within the
14
specified time may result in waiver of the right to appeal the district court’s order. Martinez v.
15
Ylst, 951 F.2d 1153 (9th Cir. 1991). In the objections, petitioner may address whether a
16
certificate of appealability should issue in the event an appeal of the judgment in this case is filed.
17
See Rule 11, Rules Governing § 2254 Cases (the district court must issue or deny a certificate of
18
appealability when it enters a final order adverse to the applicant).
19
Dated: June 8, 2018
20
21
22
23
DLB:9
DB/prisoner-habeas/ingr1274.scrn fr
24
25
26
27
28
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?