United States District Court, S.D. California
October 17, 2005.
JOSE CRUZ, Petitioner,
GEORGE GIURBINO, Warden, Respondent.
The opinion of the court was delivered by: THOMAS WHELAN, District Judge
ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING CASE
Petitioner, a state prisoner proceeding pro se, has not paid
the $5.00 filing fee and has filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254, together with a request to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a).
The request to proceed in forma pauperis is denied because
Petitioner has not provided the Court with sufficient information
to determine Petitioner's financial status. A request to proceed
in forma pauperis made by a state prisoner must include a
certificate from the warden or other appropriate officer showing
the amount of money or securities Petitioner has on account in
the institution. Rule 3(a)(2), 28 U.S.C. foll. § 2254; Local Rule
3.2. Petitioner has failed to provide the Court with the required
Prison Certificate.*fn1 Accordingly, the Court DENIES the
request to proceed in forma pauperis. Furthermore, it appears that a Petition for Writ of Habeas
Corpus brought pursuant to § 2254 is not the proper vehicle for
the claims Petitioner presents. Petitioner lists various problems
he claims he is facing in prison. Specifically, Petitioner claims
money is being improperly taken from his prison trust account.
Petitioner's claim not cognizable on habeas because it does not
challenge the constitutional validity or duration of confinement.
See 28 U.S.C. 2254(a); Preiser v. Rodriguez, 411 U.S. 475,
500 (1973); Heck v. Humphrey, 512 U.S. 477, 480-85 (1994).
"Section 2254 applies only to collateral attacks on state court
judgments." McGuire v. Blubaum, 376 F. Supp. 284, 285 (D. Ariz.
In no way does Petitioner claim his state court conviction
violates the Constitution or laws or treaties of the United
States. Rule 4 of the Rules Governing Section 2254 Cases provides
for summary dismissal of a habeas petition "[i]f it plainly
appears from the face of the petition and any exhibits annexed to
it that the petitioner is not entitled to relief in the district
court." Rule 4, 28 U.S.C. foll. § 2254. Here, it is plain from
the petition that Petitioner is not presently entitled to federal
habeas relief because he has not alleged that the state court
violated his federal rights.
Challenges to the fact or duration of confinement are brought
by petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254; challenges to conditions of confinement are brought
pursuant to the Civil Rights Act, 42 U.S.C. § 1983. See
Preiser, 411 U.S. at 488-500. When a state prisoner is
challenging the very fact or duration of his physical
imprisonment, and the relief he seeks is a determination that he
is entitled to immediate release or a speedier releas from that
imprisonment, his sole federal remedy is a writ of habeas corpus.
Id. at 500. On the other hand, a § 1983 action is a proper
remedy for a state prisoner who is making a constitutional
challenge to the conditions of his prison life, but not to the
fact or length of his custody. Id. at 499; McIntosh v. United
States Parole Comm'n, 115 F.3d 809, 811-12 (10th Cir. 1997). It
appears that Petitioner challenges the conditions of his prison
life, but not the fact or length of his custody. Thus, Petitioner
has not stated a cognizable habeas claim pursuant to § 2254.
If Petitioner wishes to challenge his state court conviction,
he must, no later than December 14, 2005: (1) pay the $5.00
filing fee or submit adequate proof of his inability to pay the fee AND (2) file a First Amended Petition which states a
cognizable claim on habeas corpus. If Petitioner wishes to
challenge the conditions of his confinement, he may file a civil
complaint pursuant to 42 U.S.C. § 1983 which will be a given a
new civil case number.*fn2
IT IS SO ORDERED.
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