The opinion of the court was delivered by: Marilyn L. Huff United States District Judge
ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS
On March 18, 2013, Helda Wilson, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 requesting monetary compensation for an alleged error in his rank upon discharge from the Army. (Doc. No. 1.)
Petitioner also filed a motion to proceed in forma pauperis. (Doc. No. 2.)
Based on the allegations in the petition, Petitioner was inducted into the U.S. Army on February 13, 1968. (Doc. No. 1-1 at p. 8.) Petitioner rose to the rank of specialist with a corresponding pay grade of E-4. (Id.) In 1969, a special court-martial found Petitioner guilty of violations of Articles 92 (possession of barbiturates) and 134 (possession of about an ounce of marijuana) of the Uniform Code of Military Justice. (Id. at p. 15.) As punishment, the court-martial reduced Petitioner's rank to private with a pay grade of E-1. (Id.) The Army honorably discharged Petitioner on October 3, 1969, with the rank of private and a pay grade of E-2. (Id. at p. 17.)
Several years later, Petitioner filed an application for correction of his military record pursuant to 10 U.S.C. § 1552, arguing that his pay grade upon discharge should have been E-3. On March 31, 2011, the Army Board for Correction of Military Records ("ABCMR") denied his application. (Id. at p. 9.)
Thereafter, Petitioner filed a request for reconsideration with the ABCMR. (Id. at p. 4.) On July 18, 2012, the ABCMR denied Petitioner's request for reconsideration and informed Petitioner that he has "the option to seek relief in a court of appropriate jurisdiction." (Id.)
"The Prison Litigation Reform Act of 1996, Pub.L. No. 104-134, §§ 801-10, amended [28 U.S.C.] § 1915 to require the district court to dismiss in forma pauperis prisoner civil rights suits if the court determines that the action does not state a claim upon which relief may be granted." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); see 28 U.S.C. § 1915(e)(2)(B)(ii). "The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim." Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). The Rule 12(b)(6) standard is that a pleading must state a plausible claim for relief, Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), that is the pleading must contain a cognizable legal theory or sufficient factual allegations in support of a cognizable legal claim. Hinds Investments, L.P. v. Angioli, 654 F.3d 846, 850 (9th Cir. 2011). Under § 1915, a district court may dismiss a plaintiff's pleading sua sponte or in response to a motion filed by the respondent. See Barren, 152 F.3d at 1194.
I. Request for Habeas Relief
After reviewing the petition, the Court concludes that Petitioner has failed to allege a plausible claim for habeas relief. 28 U.S.C. § 2254 provides the following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a). See Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988); Kealohapauole v. Shimoda, 800 F.2d 1463, 1464-65 (9th Cir. 1986). Thus, to present a cognizable federal habeas corpus claim under § 2254, a state prisoner must allege both that he is in custody pursuant to a "judgment of a State court," and that he is in custody in "violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2254(a).
Here, Petitioner requests a correction of his military records to reflect that he was discharged as a private first class ("E-3") as opposed to a private ("E-2"). (Doc. No. 1-1 at p. 1.) Petitioner does not make any allegation that he is currently in prison because of a "violation of the Constitution or laws or treaties of the United States." ...