Downs v. Foulk et al

Filing 2

ORDER DISMISSING Petition for Writ of Habeas Corpus Without Prejudice. The Court Dismisses the petition without prejudice for failure to satisfy the filing fee requirement and failure to state a cognizable claim on habeas corpus. The Clerk of Court is instructed to enter judgment in accordance herewith and terminate this action. Signed by Judge Michael M. Anello on 8/4/2014.(All non-registered users served via U.S. Mail Service)(cc: USM)(vam)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GREGORY DOWNS,

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Petitioner,
v.
F. FOULK, Warden

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14-1745 MMA (PCL)

ORDER DISMISSING PETITION
FOR WRIT OF HABEAS CORPUS
WITHOUT PREJUDICE

Respondent.

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Civil No.

Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254.
FAILURE TO SATISFY THE FILING FEE REQUIREMENT
Petitioner has failed to pay the $5.00 filing fee and has failed to move to

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proceed in forma pauperis. Because this Court cannot proceed until Petitioner has

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either paid the $5.00 filing fee or qualified to proceed in forma pauperis, the Court

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DISMISSES the case without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254.

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FAILURE TO STATE A COGNIZABLE CLAIM ON HABEAS CORPUS

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Upon review of the Petition, it appears to the Court that a Petition for Writ of

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Habeas Corpus brought pursuant to § 2254 is not the proper vehicle for the claims

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Petitioner presents. Petitioner alleges a “violation of his First Amendment right to

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access to court and [requests] appointment of counsel under the Americans with

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Disabilities Act
14cv1745

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(ADA).” (Pet. at 13.) Petitioner’s claims are not cognizable on habeas because they

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do not challenge the constitutional validity or duration of confinement. See 28 U.S.C.

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§ 2254(a); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Heck v. Humphrey, 512

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U.S. 477, 480-85 (1994). “Section 2254 applies only to collateral attacks on state

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court judgments.” McGuire v. Blubaum, 376 F. Supp. 284, 285 (D. Ariz. 1974).
Petitioner does not claim that his state court conviction violates the Constitution

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or laws or treaties of the United States. Indeed, in his Petition, Petitioner

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acknowledges that he is not attacking a conviction, rather he is alleging an ADA

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violation. (Pet. at 1.) Rule 4 of the Rules Governing Section 2254 Cases provides for

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summary dismissal of a habeas petition “[i]f it plainly appears from the face of the

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petition and any exhibits annexed to it that the petitioner is not entitled to relief in the

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district court.” Rule 4, 28 U.S.C. foll. § 2254. Here, it is plain from the petition that

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Petitioner is not presently entitled to federal habeas relief because he has not alleged

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that the state court violated his federal rights.
Challenges to the fact or duration of confinement are brought by petition for a

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writ of habeas corpus, pursuant to 28 U.S.C. § 2254; challenges to conditions of

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confinement are brought pursuant to the Civil Rights Act, 42 U.S.C. § 1983. See

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Preiser, 411 U.S. at 488-500. When a state prisoner is challenging the very fact or

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duration of his physical imprisonment, and the relief he seeks is a determination that

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he is entitled to immediate release or a speedier release from that imprisonment, his

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sole federal remedy is a writ of habeas corpus. Id. at 500. On the other hand, a

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§ 1983 action is a proper remedy for a state prisoner who is making a constitutional

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challenge to the conditions of his prison life, but not to the fact or length of his

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custody. Id. at 499; McIntosh v. United States Parole Comm’n, 115 F.3d 809, 811-12

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(10th Cir. 1997). It appears that Petitioner challenges the conditions of his prison life,

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but not the fact or length of his custody. Thus, Petitioner has not stated a cognizable

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habeas claim pursuant to § 2254.

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///
14cv1745

CONCLUSION

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Based on the foregoing, the Court DISMISSES the petition without prejudice

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for failure to satisfy the filing fee requirement and failure to state a cognizable claim

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on habeas corpus. The Clerk of Court is instructed to enter judgment in accordance

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herewith and terminate this action.

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IT IS SO ORDERED.
DATED: August 4, 2014

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Hon. Michael M. Anello
United States District Judge

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14cv1745