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Hung Duong Nguon v. Tim Virga

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 12, 2011

HUNG DUONG NGUON, PETITIONER,
v.
TIM VIRGA, RESPONDENT.

ORDER

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. The petition was referred to the undersigned by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and the petitioner's consent. See E.D. Cal. Local Rules, Appx. A, at(k)(4).

Petitioner seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit and he qualifies for in forma pauperis status. However, review of the petitions shows that it must be dismissed.

In the petition, petitioner claims he is not receiving adequate medical care at the California Medical Facility. 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 . . . ." 28 U.S.C. § 2254(a). A habeas corpus petition is the mechanism by which a prisoner may 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, 484 (1973)); Advisory Committee Notes to Rule 1 of the Rules Governing § 2254 Cases. Because petitioner's claim does not challenge his custody, it is not appropriate for a § 2254 action. Therefore, this case should be dismissed. See Rule 4, Rules Governing § 2254 Cases.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's request to proceed in forma pauperis is granted; and

2. This action is dismissed.

20110112

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