Ellis v. Faulk

Filing 10

ORDER DISMISSING CASE. Signed by Judge Jacqueline Scott Corley on 7/28/2014. (Attachments: # 1 Certificate/Proof of Service)(tlS, COURT STAFF) (Filed on 7/28/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ROBERT J. ELLIS,
Plaintiff,

Northern District of California

United States District Court

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Case No.: C 14-2151 JSC (PR)
ORDER OF DISMISSAL

v.

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F. FAULK, Warden,
Defendant.

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Plaintiff, a California prisoner proceeding pro se, filed this civil rights action under 42
U.S.C. § 1983. 1 He claims that he is “factually innocent,” and that he was convicted by “false
evidence.” He further alleges that the Antiterrorism and Effective Death Penalty Act, 28

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U.S.C. §§ 2244(d)(1), 2254(d), is “blocking” his attempt to obtain federal habeas relief. He
seeks a lawyer and “an investigation” into his claims of innocence. (Complaint at 3.)
Challenges to the lawfulness of confinement must be brought in a petition for a writ of

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habeas corpus. Hill v. McDonough, 547 U.S. 573, 579 (2006). Indeed, a habeas petition is
the “exclusive remedy” for the prisoner who seeks “immediate or speedier release” from
confinement. Skinner v. Switzer, 131 S. Ct. 1289, 1293 (2011); see also Docken v. Chase, 393
F.3d 1024, 1026 (9th Cir. 2004). As Plaintiff challenges the validity of his conviction and
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Plaintiff has consented to the jurisdiction of a United States Magistrate Judge pursuant to 28
U.S.C. § 636(c). (Dkt. No. 6.)

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resulting confinement, his claims may not be brought in a civil rights complaint; rather, he

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must raise his claims in a petition for a writ of habeas corpus. Accordingly, the complaint will

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be dismissed without prejudice to Plaintiff bringing his claims in a petition for a writ of

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habeas corpus.

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It is noted that Plaintiff has previously brought a petition for a writ of habeas corpus

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challenging the same conviction he challenges here. See Ellis v. Roe, No. 01-3141 MMC

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(PR). That petition was denied on its merits on December 3, 2005. A second or successive

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petition may not be filed in a federal district court unless petitioner first obtains from the

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United States Court of Appeals for the Ninth Circuit an order authorizing this court to

Northern District of California

consider the petition. See 28 U.S.C. § 2244(b)(3)(A). Therefore this action is DISMISSED

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United States District Court

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without prejudice to Plaintiff bringing his claims in a petition for a writ of habeas corpus after

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he obtains the necessary authorization from the United States Court of Appeals.

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The Clerk shall enter judgment and close the file.

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IT IS SO ORDERED.

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Dated: July 28, 2014
_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

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