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WOODRUFF v. BLANKENSHIP

United States District Court, N.D. California


April 26, 2004.

STEVE WOODRUFF, Plaintiff,
v.
MARK I. BLANKENSHIP, Defendant

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

ORDER OF DISMISSAL; VACATING CLERK'S NOTICE
Plaintiff Steve Woodruff, a California prisoner proceeding pro se, has filed the above-titled civil rights action, pursuant to 42 U.S.C. § 1983, against the attorney who represented him at his criminal trial, claiming he was provided ineffective assistance of counsel. The remedy he seeks is a new trial.

A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. See Balistreri v. Pacifica Police Dep't 901 F.2d 696, 699 (9th Cir. 1988).

  Plaintiff's complaint challenges the validity of his conviction on the grounds of ineffective assistance of counsel. Any claim by a prisoner attacking the validity or duration of his confinement must be brought under the habeas sections of Title 28 of the United States Code. See Calderon v. Ashmus, 523 U.S. 740, 747 (1998); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). A prisoner must bring a habeas petition where, as here, the nature of his claim is such that it would necessarily imply the invalidity of his conviction or continuing confinement. Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir. 1997).

  Accordingly, the above-titled action is hereby DISMISSED, see Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (holding civil rights complaint seeking habeas relief should be dismissed), without prejudice to plaintiff's raising his claims in a petition for a writ of habeas corpus.*fn1

  In light of this dismissal, the Clerk's notice of deficiency regarding the filing fee, filed April 15, 2004, is hereby VACATED, and no filing fee shall be due.

  The Clerk shall close the file and terminate any pending motions.

  IT IS SO ORDERED.


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