The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATION TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1) OBJECTIONS DUE WITHIN THIRTY (30) DAYS
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the petition, which was filed by Petitioner in this Court on April 29, 2009.
I. Screening the Petition
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Habeas Rule 4, adv. comm. notes, 1976 adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)).
Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory committee notes to Habeas Rule 8, 1976 adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).
II. Conditions of Confinement
A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the legality or duration of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973)); advisory committee notes to Habeas Rule 1, 1976 adoption.
In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; advisory committee notes to Habeas Rule 1, 1976 adoption.
In this case, Petitioner alleges that he has requested a transfer to a federal facility from the warden of the state institution where Petitioner is confined pursuant to the judgment of a state court. Petitioner alleges that he has served over thirty (30) years of a state life sentence and has been denied parole thirteen (13) times. However, the gravamen of his complaint is that he is subjected to overcrowding in his institution of confinement, and his custodians have failed to address unspecified issues concerning Petitioner's mental health and living conditions. (Pet. 2.) Petitioner therefore seeks a transfer to a federal institution. Petitioner refers to various pending civil rights cases and asserts generally his membership in classes affecting by ongoing proceedings. (Pet. 3.)
Petitioner cites authorities that recognize a statutory basis for permitting transfers of prisoners from state to federal institutions but do not involve analogous procedural or custodial circumstances. (Pet. 5, 8.) However, Petitioner has not alleged any facts that would support a finding that he has a legally justified expectation of incarceration in any particular institution. See, Olim v. Wakinekona, 461 U.S. 238 (1983). It is established that a claim concerning the conditions of confinement, such as privileges, programming, and transfer to a less restrictive facility, are properly raised in a civil rights action. Martinez-Bermudez v. Rios, no. 1:10-cv-00327-JLT HC, 2010 WL 1333277, *2 (E.D.Cal. April 2, 2010) (collecting cases).
Petitioner's allegations concern only the conditions of his confinement. The Court cannot possibly afford Petitioner any relief that would affect the fact or duration of his incarceration. Thus, Petitioner is not entitled to habeas corpus relief, and this petition must be dismissed without prejudice to Petitioner's filing a civil rights action.
Should Petitioner wish to pursue his claims, he must do so by way of a civil rights complaint pursuant to 42 U.S.C. § 1983. It will be recommended that the Clerk be directed to send an appropriate form complaint to Petitioner.
III. Certificate of Appealability
Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from the final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A certificate of appealability may issue only if the applicant makes a substantial showing of the denial of a constitutional right. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). A certificate should issue if the Petitioner shows that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right or that jurists of reason would find it debatable whether the district court was correct in any procedural ruling. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). In determining this issue, a court conducts an overview of the claims in the habeas petition, generally ...