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)

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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

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