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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GREGORY DOWNS, 12 13 14 Petitioner, v. F. FOULK, Warden 17 18 19 14-1745 MMA (PCL) ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE Respondent. 15 16 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 20 proceed in forma pauperis. Because this Court cannot proceed until Petitioner has 21 either paid the $5.00 filing fee or qualified to proceed in forma pauperis, the Court 22 DISMISSES the case without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254. 23 FAILURE TO STATE A COGNIZABLE CLAIM ON HABEAS CORPUS 24 Upon review of the Petition, it appears to the Court that a Petition for Writ of 25 Habeas Corpus brought pursuant to § 2254 is not the proper vehicle for the claims 26 Petitioner presents. Petitioner alleges a “violation of his First Amendment right to 27 access to court and [requests] appointment of counsel under the Americans with 28 Disabilities Act 14cv1745 1 (ADA).” (Pet. at 13.) Petitioner’s claims are not cognizable on habeas because they 2 do not challenge the constitutional validity or duration of confinement. See 28 U.S.C. 3 § 2254(a); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Heck v. Humphrey, 512 4 U.S. 477, 480-85 (1994). “Section 2254 applies only to collateral attacks on state 5 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 6 7 or laws or treaties of the United States. Indeed, in his Petition, Petitioner 8 acknowledges that he is not attacking a conviction, rather he is alleging an ADA 9 violation. (Pet. at 1.) Rule 4 of the Rules Governing Section 2254 Cases provides for 10 summary dismissal of a habeas petition “[i]f it plainly appears from the face of the 11 petition and any exhibits annexed to it that the petitioner is not entitled to relief in the 12 district court.” Rule 4, 28 U.S.C. foll. § 2254. Here, it is plain from the petition that 13 Petitioner is not presently entitled to federal habeas relief because he has not alleged 14 that the state court violated his federal rights. Challenges to the fact or duration of confinement are brought by petition for a 15 16 writ of habeas corpus, pursuant to 28 U.S.C. § 2254; challenges to conditions of 17 confinement are brought pursuant to the Civil Rights Act, 42 U.S.C. § 1983. See 18 Preiser, 411 U.S. at 488-500. When a state prisoner is challenging the very fact or 19 duration of his physical imprisonment, and the relief he seeks is a determination that 20 he is entitled to immediate release or a speedier release from that imprisonment, his 21 sole federal remedy is a writ of habeas corpus. Id. at 500. On the other hand, a 22 § 1983 action is a proper remedy for a state prisoner who is making a constitutional 23 challenge to the conditions of his prison life, but not to the fact or length of his 24 custody. Id. at 499; McIntosh v. United States Parole Comm’n, 115 F.3d 809, 811-12 25 (10th Cir. 1997). It appears that Petitioner challenges the conditions of his prison life, 26 but not the fact or length of his custody. Thus, Petitioner has not stated a cognizable 27 habeas claim pursuant to § 2254. 28 /// 14cv1745 CONCLUSION 1 2 Based on the foregoing, the Court DISMISSES the petition without prejudice 3 for failure to satisfy the filing fee requirement and failure to state a cognizable claim 4 on habeas corpus. The Clerk of Court is instructed to enter judgment in accordance 5 herewith and terminate this action. 6 7 IT IS SO ORDERED. DATED: August 4, 2014 8 9 Hon. Michael M. Anello United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14cv1745

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