UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
March 14, 2011
UNITED STATES OF AMERICA, [DOC. 1] RESPONDENT.
The opinion of the court was delivered by: /Dennis L United States Magistrate Judge
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO TERMINATE ACTION, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge. Local Rule 305(b).
Petitioner filed the instant petition for writ of habeas corpus on February 7, 2011. Petitioner indicates that he is currently being detained at the Fresno County jail pending criminal charges in this Court, in case number 1:08-cr-00246 OWW, United States v. DeLeon, et.al. Petitioner claims that he has only communicated with his attorney in November of 2009 and November 2010, and counsel did not visit him in December 2010.
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts mandates the summary dismissal of a Section 2254 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."
Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).
Petitioner's claims are not cognizable under 28 U.S.C. § 2254. Section 2254 relief is limited to persons in custody pursuant to "the judgment of a State court." 28 U.S.C. § 2254(a). In addition, if Petitioner seeks to challenge any completed criminal actions arising out of this Court, Petitioner must do so by way of 28 U.S.C. § 2255 relief. See 28 U.S.C. § 2255(a) ("A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.")
Based on the foregoing, it is HEREBY ORDERED that:
1. The instant petition for writ of habeas corpus is DISMISSED;
2. The Clerk of Court is directed to terminate this action; and
3. The Court declines to issue a certificate of appealability. 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (in order to obtain a COA, petitioner must show: (1) that jurists of reason would find it debatable whether the petition stated a valid claim of a denial of a constitutional right; and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). In the present case, the Court does not find that jurists of reason would not find it debatable whether the petition was properly dismissed for failure to state a cognizable under
28 U.S.C. § 2254. Petitioner has not made the required substantial showing of the denial of a constitutional right.
IT IS SO ORDERED.
© 1992-2011 VersusLaw Inc.