IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
November 26, 2012
BERNARD ANDREW WHITE, PETITIONER,
G. JANDA, RESPONDENT.
The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
Petitioner is a state prisoner proceeding pro se on this application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner has consented to the jurisdiction of the undersigned.
In his petition, petitioner argues that the court incorrectly dismissed his complaint in case number 2:08-cv-1789, White v. Hollows (the "2008 Complaint"). In the 2008 Complaint, plaintiff alleged that the magistrate judges of the United States District Court for the Eastern District of California improperly required petitioner to pay a filing fee in order to proceed in his actions filed under 42 U.S.C. § 1983 and 28 U.S.C. § 2254. See 2:08-cv-1789, Doc. No. 1. On August 10, 2012, Judge Bea, sitting by designation, screened the complaint and dismissed it for failure to state a claim, without leave to amend. See 2:08-cv-1789, Doc. No. 9.
Petitioner now appears to allege that the court improperly dismissed the 2008 complaint because, among other things, the court dismissed the action without allowing petition to file objections, and because the court improperly determined that plaintiff had three strikes under 28 U.S.C. § 1915(g).
Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254 provides for summary dismissal of a habeas petition "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." In the instant case, it is plain from the petition and appended exhibits that petitioner is not entitled to federal habeas relief.
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 correct method for a prisoner to challenge the "legality of duration" of his confinement. See Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991), quoting Preiser v. Rodriguez, 411 U.S. 475, 485 [S.Ct. Cite] (1973).
In this case, petitioner's claims do not implicate the fact or duration of his confinement, and he does not challenge his conviction or sentence. Instead, he argues that a prior decision of the court was incorrect, an argument more appropriately raised in a motion to reconsider or in an appeal of the court's ruling. Petitioner's instant claims are currently not cognizable grounds for federal habeas relief and must be dismissed.*fn1
In accordance with the above, IT IS HEREBY ORDERED that 1. The Clerk of the Court is directed to serve a copy of the petition filed in this case together with a copy of this order on the Attorney General of the State of California; and 2. Petitioner's application for a writ of habeas corpus is summarily dismissed; and
3. The Clerk is directed to close this case.