Garcia v. State of Nevada et al

Filing 7

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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1 2 3 4 5 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 6 7 8 9 VICTORIA GARCIA, 10 Petitioner, 11 vs. 12 JO GENTRY, et al., 13 Case No. 2:16-cv-00063-RFB-NJK Respondents. ORDER 14 15 Petitioner has filed an amended petition (ECF No. 5). The court has reviewed it pursuant to 16 Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Petitioner has 17 not corrected the defects of the initial petition, and the court will dismiss this action. 18 In the amended petition, as in the initial petition, petitioner claims that respondents violated the 19 Due Process and Equal Protection Clauses of the Fourteenth Amendment when they validated her as 20 a gang member. The court had directed petitioner to file an amended petition because she had alleged 21 no facts in the initial petition that this gang-member validation had affected the duration of her 22 imprisonment. The amended petition does not correct this defect. Petitioner again alleges facts that 23 show only that the conditions of confinement have changed, but that the legality or duration of her 24 confinement have not changed. “[I]f a state prisoner’s claim does not lie at ‘the core of habeas corpus,’ 25 . . . it may not be brought in habeas corpus but must be brought, ‘if at all,’ under [42 U.S.C.] § 1983.” 26 Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016) (en banc) (quoting Preiser v. Rodriguez, 411 U.S. 27 475, 487 (1973), and Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011)), cert. denied 137 S. Ct. 645 28 (2017). The “core of habeas corpus” is relief that terminates custody, accelerates the future date of 1 release from custody, or reduces the level of custody, such as from incarceration to parole. Nettles, 830 2 F.3d at 930 (quoting Wilkinson v. Dotson, 544 U.S. 74, 86 (2005) (Scalia, J., concurring)). The relief 3 that the court could grant petitioner would not affect the duration of her confinement. Therefore, 4 petitioner would need to seek that relief, if at all, through a civil rights action pursuant to 42 U.S.C. 5 § 1983. 6 7 8 9 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. 10 IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 11 DATED: January 9, 2018. 12 13 _________________________________ RICHARD F. BOULWARE, II United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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