Bloodsaw v. Risenhoover

Filing 3

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS, DISMISSING PETITION, AND DENYING CERTIFICATE OF APPEALABILITY, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 4/2/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 4/2/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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THEOPRIC BLOODSAW,
Petitioner,

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For the Northern District of California

United States District Court

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No. C 13-1349 PJH (PR)

vs.
S. RISENHOOVER,
Respondent.
/

ORDER GRANTING LEAVE
TO PROCEED IN FORMA
PAUPERIS, DISMISSING
PETITION, AND DENYING
CERTIFICATE OF
APPEALABILITY

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This is a habeas case filed pro se by a state prisoner. While petitioner sets forth the

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facts of his conviction, most of the claims in the petition involve conditions of petitioner’s

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confinement, not the fact of his conviction or the length of it, and thus may not be raised in

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a habeas petition. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (civil rights action

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is proper method of challenging conditions of confinement); Crawford v. Bell, 599 F.2d 890,

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891-92 & n.1 (9th Cir. 1979) (affirming dismissal of habeas petition on basis that challenges

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to terms and conditions of confinement must be brought in civil rights complaint). Petitioner

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alleges that prison officials are conspiring to overthrow the United States government and

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conspiring against petitioner. Petitioner has filed forty-four previous cases in this court.

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Petitioner’s previous habeas petition directed to the same conviction was dismissed

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with prejudice as barred by the statute of limitations, see Bloodsaw v. Woodford, C 06-

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2929-GHK-E (C.D. Cal. Jan. 19, 2007) (order adopted report and recommendation and

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dismissing petition with prejudice), so any claims in this petition that might be construed as

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going to the conviction would be second or successive. Because petitioner has not

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obtained an order from the court of appeals allowing him to file a second or successive

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petition, any habeas claims that might be discerned in the petition are barred. See 28

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U.S.C. § 2244(b)(3)(A). In short, the petition must be dismissed. Due to the frivolous

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nature of this action and the large amount of similar cases filed by petitioner, the case will

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not be re-designated as a civil rights action with leave to amend.

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Petitioner’s motion for leave to proceed in forma pauperis (Docket No. 2) is

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GRANTED. The petition is DISMISSED for the reasons set out above. Because

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reasonable jurists would not find the result here debatable, a certificate of appealability

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(“COA”) is DENIED. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000) (standard for

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COA). The clerk shall close the file.

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IT IS SO ORDERED.
Dated: April 2, 2013.
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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G:\PRO-SE\PJH\HC.13\bloodsaw1349.dsm.wpd

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