Garcia v. State of Nevada et al
Filing
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ORDER. IT IS ORDERED that this action is DISMISSED. The clerk of the court shall enter judgment accordingly and close this action. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Judge Richard F. Boulware, II on 1/9/2018. (Copies have been distributed pursuant to the NEF - ADR)
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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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VICTORIA GARCIA,
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Petitioner,
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vs.
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JO GENTRY, et al.,
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Case No. 2:16-cv-00063-RFB-NJK
Respondents.
ORDER
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Petitioner has filed an amended petition (ECF No. 5). The court has reviewed it pursuant to
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Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Petitioner has
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not corrected the defects of the initial petition, and the court will dismiss this action.
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In the amended petition, as in the initial petition, petitioner claims that respondents violated the
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Due Process and Equal Protection Clauses of the Fourteenth Amendment when they validated her as
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a gang member. The court had directed petitioner to file an amended petition because she had alleged
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no facts in the initial petition that this gang-member validation had affected the duration of her
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imprisonment. The amended petition does not correct this defect. Petitioner again alleges facts that
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show only that the conditions of confinement have changed, but that the legality or duration of her
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confinement have not changed. “[I]f a state prisoner’s claim does not lie at ‘the core of habeas corpus,’
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. . . it may not be brought in habeas corpus but must be brought, ‘if at all,’ under [42 U.S.C.] § 1983.”
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Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016) (en banc) (quoting Preiser v. Rodriguez, 411 U.S.
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475, 487 (1973), and Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011)), cert. denied 137 S. Ct. 645
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(2017). The “core of habeas corpus” is relief that terminates custody, accelerates the future date of
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release from custody, or reduces the level of custody, such as from incarceration to parole. Nettles, 830
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F.3d at 930 (quoting Wilkinson v. Dotson, 544 U.S. 74, 86 (2005) (Scalia, J., concurring)). The relief
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that the court could grant petitioner would not affect the duration of her confinement. Therefore,
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petitioner would need to seek that relief, if at all, through a civil rights action pursuant to 42 U.S.C.
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§ 1983.
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Reasonable jurists would not find the court’s conclusion to be debatable or wrong, and the court
will not issue a certificate of appealability.
IT IS THEREFORE ORDERED that this action is DISMISSED. The clerk of the court shall
enter judgment accordingly and close this action.
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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
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DATED: January 9, 2018.
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_________________________________
RICHARD F. BOULWARE, II
United States District Judge
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