The opinion of the court was delivered by: James V. Selna United States District Judge
ORDER DISMISSING HABEAS ACTION WITHOUT PREJUDICE
On April 12, 2012, Daryl Gray ("Petitioner"), a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") pursuant to 28 U.S.C. § 2254. Title 28 U.S.C. § 2254 empowers the Court to "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court . . . on the ground that he is in custody in violation of the laws of the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2254(a).
Here, however, Petitioner is not challenging the legality of his conviction, or otherwise claiming to be in custody in violation of the laws of the Constitution or laws or treaties of the United States, but is challenging the execution of his sentence. (See Petition at 2). The Court need neither grant the writ nor order a return if "it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243; see also Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. The Petition fails to include any claims for federal habeas relief.
Petitioner is specifically complaining about his lack of access to drug treatment programs. (See Petition at 5-6). Petitioner's claims are difficult to understand, but he appears to contend that California A.B. 109 (otherwise known as the 2011 Realignment Legislation) is discriminatory because it prohibits inmates with prior strikes from participating in drug treatment programs. (See id.). Thus, the Court concludes that the jurisdictional requisite for a section 2254 habeas petition has not been met. See Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979) ("[T]he writ of habeas corpus is limited to attacks upon the legality or duration of confinement."); see also Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (explaining the distinction between a habeas action and a civil rights action); Hartman v. Summers, 878 F. Supp. 1335, 1347 n.15 (C.D. Cal. 1995) ("[T]he Ninth Circuit has made clear that habeas petitions are limited to attacks upon legality or duration of confinement.").
The Court has also considered whether to ignore the erroneous labeling of the Petition and construe this pleading as a civil rights complaint. See Hanson v. May, 502 F.2d 728, 729 (9th Cir. 1974) ("Despite the labeling of his complaint [as a habeas petition], [the petitioner] was, therefore, entitled to have his action treated as a claim for relief under the Civil Rights Act."); Wilwording v. Swenson, 404 U.S. 249, 251, 92 S. Ct. 407, 30 L. Ed. 2d 418 (1971) ("Petitioners were therefore entitled to have their actions treated as claims for relief under the Civil Rights Acts . . . ."). However, Petitioner's allegations are not sufficient to state a claim for violation of his federal civil rights.*fn1 Moreover, Petitioner failed to pay the filing fee required to initiate a civil rights action and is ineligible for in forma pauperis status because he has previously had at least three cases dismissed as frivolous, malicious, or for failure to state a claim pursuant to 28 U.S.C. § 1915(g).*fn2
Consistent with the foregoing, IT IS ORDERED that Judgment be entered dismissing this action without prejudice. IT IS FURTHER ORDERED that the Clerk of Court serve a copy of this Order and the Judgment on Petitioner at his current address of record.
LET JUDGMENT BE ENTERED ACCORDINGLY.
PRESENTED BY: /S/ SUZANNE H. SEGAL UNITED STATES ...