The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF JURISDICTION
ORDER DIRECTING OBJECTIONS TO BE FILED WITHIN TWENTY DAYS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On May 13, 2010, Petitioner filed the instant petition for writ of habeas corpus, challenging the order of the Kern County Superior Court that terminated Petitioner's "reunification services" on October 22, 2008 and terminated Petitioner's parental rights with his children on February 19, 2009. (Doc. 1). The petition also challenges the state appellate court's refusal to correct the Superior Court's rulings. (Id.). Petitioner contends that he was not given proper notice of the October 22, 2008 hearing and that, while in pre-trial detention in the Kern County jail, he attended a court hearing on February 19, 2009 after which Petitioner's parental rights were terminated. (Doc. 1, p. 10). Petitioner contends that his due process rights were violated by the state court and his attorney in failing to give him proper notice of these hearings. (Id.). Petitioner also argues that the state court order terminating his parental rights should be modified. (Id., p. 18).
A. Procedural Grounds for Summary Dismissal
Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part: If 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, the judge shall make an order for its summary dismissal and cause the petitioner to be notified. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir.1990). A district court may entertain a petition for writ of habeas corpus "on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. S § 2254(a). The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, or pursuant to the Respondent's motion to dismiss, or after an answer to the petition has been filed.
B. Lack Of Habeas Jurisdiction Over Child Custody Or Parental Rights Issues
The basic scope of habeas corpus is prescribed by statute. Subsection (c) of Section 2241 of Title 28 of the United States Code provides that habeas corpus shall not extend to a prisoner unless he is "in custody in violation of the Constitution." 28 U.S.C. § 2254(a) states:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to a judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
(emphasis added). See also, Rule 1 to the Rules Governing Section 2254 Cases in the United States District Court. The Supreme Court has held that "the essence of habeas corpus is an attack by a person in custody upon the legality of that custody . . ." Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Furthermore, in order to succeed in a petition pursuant to 28 U.S.C. § 2254, Petitioner must demonstrate that the adjudication of his claim in state court resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United ...