McGuire v. Nevada State Department of Corrections Director et al

Filing 10

ORDER. IT IS ORDERED that this action is DISMISSED with prejudice for failure to state a cognizable habeas corpus claim. FURTHER ORDERED that a certificate of appealability is DENIED. FURTHER ORDERED that the Clerk is directed to enter judgment accordingly. Signed by Judge Howard D. McKibben on 4/25/2011. (Copies have been distributed pursuant to the NEF - MLC)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
DISTRICT OF NEVADA
9
10
11
12
13
14
15
16

ROBERT McGUIRE,

)
)
Petitioner,
)
)
vs.
)
)
NEVADA DEPARTMENT OF
)
CORRECTIONS DIRECTOR, et al., )
)
Respondents.
)
)
/

3:11-cv-00029-HDM-VPC
ORDER

17
18

This is a petition for writ of habeas corpus pursuant to 28

19

U.S.C. § 2254 in which petitioner, a state prisoner, is proceeding pro

20

se.

21

habeas corpus in the United States District Court for the District of

22

Wyoming.

23

District of Wyoming to the District of Nevada.

24

case, the court ordered the parties to file a joint status report

25

advising the court of the current status of the case.

26

2011, respondents filed a status report stating that the sole matter

On November 1, 2010, petitioner filed a petition for writ of

On January 12, 2011, the case was transferred from the
Upon receiving the

On March 2,

1

pending before the court is the petition for writ of habeas corpus.

2

I.

3

Rule 4 of the Rules Governing Section 2254 Cases requires the

4

Court to make a preliminary review of each petition for writ of habeas

5

corpus.

6

from the face of the petition . . . that the petitioner is not

7

entitled to relief in the district court."

8

Governing 2254 Cases in the United States District Courts; see also,

9

Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).

Review of Petition

The court must dismiss a petition "[i]f it plainly appears

Rule 4 of the Rules

10

A federal court may only grant a petition for writ of habeas

11

corpus if the petitioner can show that “he is in custody in violation

12

of the Constitution . . . .”

13

traditional interpretation, the writ of habeas corpus is limited to

14

attacks upon the legality or duration of confinement.”

15

Bell, 599 F.2d 890, 891 (9th Cir. 1979)(citing Preiser v. Rodriguez,

16

411 U.S. 475, 484-86 (1973)).

17

Here,

petitioner’s

28 U.S.C. § 2254(a).

allegations,

however,

do

“According to

Crawford v.

not

make

such

18

attacks.

19

conviction.

20

violations of the Western Interstate Corrections Compact arising from

21

the conditions imposed upon him in Nevada’s prisons.

22

claims center on the conditions of his confinement at Ely State

23

Prison,

24

petitioner’s claims are not appropriate for habeas corpus relief.

25

Challenges to the conditions of confinement are more appropriately

26

raised in civil rights action filed pursuant to 42 U.S.C. § 1983.

Petitioner expressly states that he is not challenging his

not

Instead, petitioner asserts that he seeks to challenge

the

fact

or

duration

2

of

that

Petitioner’s

confinement.

Thus,

1

Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991); Crawford, 599 F.2d

2

at 891-92.

3

II.

4

In order to proceed with an appeal, a petitioner must receive a

Certificate of Appealability

5

certificate of appealability.

6

P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 (9th

7

Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52

8

(9th Cir. 2001).

9

showing

28 U.S.C. § 2253(c)(1); Fed. R. App.

Generally, a petitioner must make “a substantial

of the denial of a constitutional right” to warrant a

10

certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v.

11

McDaniel,

12

demonstrate that reasonable jurists would find the district court's

13

assessment of the constitutional claims debatable or wrong.”

14

(quoting Slack, 529 U.S. at 484).

15

inquiry, the petitioner has the burden of demonstrating that the

16

issues are debatable among jurists of reason; that a court could

17

resolve the issues differently; or that the questions are adequate to

18

deserve encouragement to proceed further.

529

U.S.

473,

483-84

(2000).

“The

petitioner

must

Id.

In order to meet this threshold

Id.

19

Pursuant to the December 1, 2009 amendment to Rule 11 of the

20

Rules Governing Section 2254 and 2255 Cases, district courts are

21

required to rule on the certificate of appealability in the order

22

disposing of a proceeding adversely to the petitioner or movant,

23

rather than waiting for a notice of appeal and request for certificate

24

of appealability to be filed.

25

the issues raised by petitioner, with respect to whether they satisfy

26

the standard for issuance of a certificate of appealability, and

Rule 11(a).

3

This court has considered

1

determines that none meet that standard.

2

deny petitioner a certificate of appealability.

3
4

IT IS THEREFORE ORDERED that this action is DISMISSED with
prejudice for failure to state a cognizable habeas corpus claim.

5
6
7
8
9

The court will therefore

IT IS FURTHER ORDERED that a certificate of appealability
is DENIED.
IT IS FURTHER ORDERED that the Clerk is directed to enter
judgment accordingly.
Dated this 25th day of April, 2011.

10
11
UNITED STATES DISTRICT JUDGE
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

4