Rodriguez v. Baca et al

Filing 5

ORDER.IFP Application 1 is granted. Motion for copy of docket sheet 3 is granted (copy mailed to petitioner 5/8/15). This action is dismissed for failure to state cognizable habeas corpus claim. Clerk shall send petitioner 2 copies each o f IFP application and complaint form with instructions (mailed 5/8/15). Petitioner may file civil rights complaint and IFP application in new action, but he may not file further documents in this action. Petitioner is denied a certificate of appealability. Clerk shall enter judgment accordingly. Signed by Judge Miranda M. Du on 5/8/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOSE RODRIGUEZ,

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Petitioner,
ISIDRO BACA.et al.,
Respondents.

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This action is a pro se petition for a writ of habeas corpus filed pursuant to 28

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ORDER

v.

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Case No. 3:14-cv-00482-MMD-VPC

U.S.C. § 2254 by a Nevada state prisoner.

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Petitioner has filed a motion to proceed in forma pauperis. (Dkt. no. 1.) Based on

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the information regarding petitioner's financial status, the Court finds that the motion to

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proceed in forma pauperis should be granted.

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This Court has conducted a preliminary review of the petition pursuant to Rule 4

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of the Rules Governing Section 2254 Cases in the United States District Courts. The

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Court must dismiss a petition “[i]f it plainly appears from the petition and any attached

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exhibits that the petitioner is not entitled to relief in the district court.” Rule 4 of the Rules

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Governing Section 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.

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1990).

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A federal court may only grant a petition for writ of habeas corpus if the petitioner

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can show that “he is in custody in violation of the Constitution . . . .”

28 U.S.C.

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§ 2254(a). “According to traditional interpretation, the writ of habeas corpus is limited to

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attacks upon the legality or duration of confinement.” Crawford v. Bell, 599 F.2d 890,

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891 (9th Cir. 1979) (citing Preiser v. Rodriguez, 411 U.S. 475, 484-86 (1973)). The

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instant petition does not attack the legality or duration of petitioner’s confinement.

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Rather, the petition challenges petitioner’s conditions of confinement while incarcerated

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in prison. Petitioner alleges that prison officials have denied his request to be housed in

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a minimum security facility. Petitioner claims that his present conditions of confinement

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violate his due process and Eighth Amendment rights. Petitioner’s claims are not

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appropriate for habeas corpus relief. Challenges to the conditions of confinement are

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more appropriately raised in a civil rights action filed pursuant to 42 U.S.C. § 1983. See

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Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991); Crawford v. Bell, 599 F.2d at 891-92.

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As such, this action is dismissed for failure to state a cognizable claim for federal

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habeas corpus relief.

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District courts are required to rule on the certificate of appealability in the order

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disposing of a proceeding adversely to the petitioner or movant, rather than waiting for a

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notice of appeal and request for certificate of appealability to be filed. Rule 11(a). In

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order to proceed with any appeal, petitioner must receive a certificate of appealability.

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28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9 th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d

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946, 950-951 (9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52

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(9th Cir. 2001). Generally, a petitioner must make “a substantial showing of the denial of

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a constitutional right” to warrant a certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2);

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Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). “The petitioner must demonstrate that

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reasonable jurists would find the district court's assessment of the constitutional claims

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debatable or wrong.” Id. (quoting Slack, 529 U.S. at 484). In order to meet this threshold

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inquiry, the petitioner has the burden of demonstrating that the issues are debatable

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among jurists of reason; that a court could resolve the issues differently; or that the

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questions are adequate to deserve encouragement to proceed further. Id. In this case,

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no reasonable jurist would find this Court’s dismissal of the petition debatable or wrong.

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The Court therefore denies petitioner a certificate of appealability.

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///
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It is therefore ordered that the application to proceed in forma pauperis (dkt. no.

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1) is granted.

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It is further ordered that petitioner’s motion to have a copy of the docket sheet in

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this action sent to him (dkt. no. 3) is granted. The Clerk of Court shall send petitioner a

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copy of the CM/ECF docket sheet for this action.

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It is further ordered that this action is dismissed for failure to state a cognizable

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habeas corpus claim. The dismissal is without prejudice to petitioner raising his claims

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in a civil rights action pursuant to 42 U.S.C. § 1983, filed in a new case.

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It is further ordered that the Clerk of the Court shall send petitioner two (2) copies

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of an in forma pauperis application form for a prisoner, one (1) copy of the instructions

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for same, two (2) copies of a blank 42 U.S.C. § 1983 prisoner civil rights form, and one

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(1) copy of instructions for the same. The Clerk shall also send petitioner a copy of the

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petition.

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It is further ordered that petitioner may file a civil rights complaint and in forma

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pauperis application in a new action, but he may not file further documents in this

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action.

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It is further ordered that petitioner is denied a certificate of appealability.

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It is further ordered that the Clerk shall enter judgment accordingly.

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DATED THIS 8th day of May 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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