Petitioner is a state prisoner proceeding pro se and in forma pauperis with an amended petition for a writ of habeas corpus pursuant to 42 U.S.C. § 2254. Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face and any exhibits annexed to it that the petitioner is not entitled to relief in the district court[.]" See also Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001) (district court has the authority to dismiss a habeas petition on statute of limitations grounds prior to the state responding to the petition). Here, upon reviewing the pending petition the court finds that several of the grounds for relief stated by petitioner therein are not cognizable in a federal habeas action and that other grounds upon which petitioner apparently seeks habeas relief require further clarification. Therefore, the court will dismiss the amended petition and grant petitioner leave to file a second amended petition. The court will address each of petitioner's claims below.
Prison officials violated petitioner's 8th Amendment right to safety, during segregation process denied due process violating 14th Amendment (Am. Petition (Doc. No. 9) at 4.*fn1 ) Petitioner explains in his memorandum of points and authorities in support of his habeas petition, that he requested protective custody because he felt threatened and that on October 18, 2001, he was placed in administrative segregation where he remained until August 24, 2002. (Mem. P&A (Doc. No. 10) at 4.) Petitioner argues that officials have "violated petitioner's Eighth Amendment right to be free from fear of imminent death and forced petitioner into administrative segregation to avoid death without due process protections . . . ." (Id.)
Petitioner is advised that this claim appears to challenge the conditions of his confinement and may not be properly raised in this habeas action. The proper mechanism for raising such a claim is through a civil rights action brought pursuant to 42 U.S.C. § 1983. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991). Therefore, petitioner should not present this claim in any second amended habeas petition he elects to file.
Petitioner retaliated against on date transferred to federal court, and denied due process, liberty interest, First and 14th Amendment (Am. Petition at 4.) With respect to this ground for relief, petitioner alleges that on November 22, 2005, he was issued a rules violation report in retaliation for the filing of a civil rights action he was pursuing in Crane v. Wheeler, Case No. CIV S-03-2443 GEB DAD P.*fn2 Again this claim is not properly presented in a federal habeas action. Rather, petitioner must pursue any retaliation claim by way of a civil rights action. See Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84 (1977) (holding that retaliation by a state actor for a prisoner's exercise of a constitutional right is actionable under § 1983). To the extent that petitioner is challenging the 2005 rules violation report issued against him, the court takes judicial notice of the fact that petitioner is already pursing a habeas action in this court challenge that prison disciplinary conviction in the case of Crane v. McDonald, CIV S-09-0852 FCD EFB P.*fn3 Therefore, in any second amended habeas petition he elects to file in this case, petitioner should not present any claim challenging his 2005 rules violation report.
Petitioner has been denied substantive due process in opportunity to meet parole requirements due to involuntary administrative segregation (Am. Petition at 5.) In support of this claim for habeas relief, petitioner refers to specific pages of his memorandum of points and authorities. However, the allegations set forth therein fail to provide support for this claim for relief. Instead, the allegations to which petitioner refers concern assaults he has allegedly suffered at the hands of other inmates.
In any second amended habeas petition he elects to file, petitioner must identify the specific parole suitability hearing he is challenging and explain what findings or recommendations were made at that parole hearing which supports his claim of entitlement to federal habeas relief. Petitioner must also explain how any claimed constitutional error in this regard impacts the duration of his confinement.
Petitioner is being held in solitary confinement without due process and some evidence in violation of Fourteenth Amendment (Am. Petition at 5.) In support of this ground for relief petitioner again refers to specific pages of his memorandum of points and authorities. However, the pages referred to by petitioner do not provide support for this claim. Rather, the allegations referred to by petitioner with respect to this stated ground for habeas relief concern petitioner's allegations that he has been subjected to limited access to outdoor exercise, the lengthy periods of lockdown, "inhuman conditions," and retaliation. (Mem. P&A at 19-21.) Again, these allegations concern the conditions of petitioner's confinement and are not appropriately raised in a petition seeking federal habeas relief. Therefore, this ground for relief should not be raised in any second amended petition petitioner elects to file.
The continued deprivation of liberty interests and due process are capable of repetition yet evading review (Am. Petition at 6.) In support of this claim petitioner argues that his grounds for relief are not moot and refers to the decision in Rosenkrantz v. Marshall, 444 F. Supp. 2d 1063, 1076 n. 9 (C.D. Cal. 2006) (holding that the petitioner's subsequent parole hearing did not render his habeas petition challenging a prior parole hearing moot). (Mem. P&A at 36.) This bare assertion by petitioner does not provide any valid basis for the granting of federal habeas relief. Rather, it is merely a legal argument which would be relevant only if petitioner were seeking habeas relief with respect to a specific parole denial and respondent advanced the argument that the petition was moot. Again, if petitioner is attempting to challenge a denial of release on parole in this federal habeas action, in any second amended petition he elects to file he must identify the specific parole suitability hearing he is challenging and explain what findings or recommendations were made at that ...