EDIN A. CHACON, Petitioner,
ON HABEAS CORPUS, Respondent.
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS (ECF No. 1)
STANLEY A BOONE, Magistrate Judge.
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner filed the instant petition for writ of habeas corpus on April 19, 2013.
A. Screening of Petition
Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the face of the petition... that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez , 908 F.2d 490 (9th Cir. 1990).
The Court may dismiss a petition for writ of habeas corpus either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8; see Herbst v. Cook , 260 F.3d 1039, 1042-1042 (9th Cir. 2001). A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson , 440 F.3d 13, 14 (9th Cir. 1971).
B. Failure to State a Cognizable Claim Under Section 2254
Because the instant petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy , 521 U.S. 320, 327 (1997); Furman v. Wood , 190 F.3d 1002, 1004 (9th Cir. 1999).
A district court may entertain a petition for writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor , 529 U.S. 362, 375 n.7.
A habeas corpus petition is the correct method for a prisoner to challenge the legality or duration of his confinement. Badea v. Cox , 931 F.3d 573, 574 (9th Cir. 1991) (quoting Preiser v. Rodriguez , 411 U.S. 475, 485 (1973). In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson , 500 U.S. 136, 141-142 (1991).
Petitioner is in the custody of the California Department of Corrections and Rehabilitation and is currently housed at the California Correctional Institution in Tehachapi, California. In the instant petition, Petitioner contends that in 2009 he was revalidated as a member of the Mexican Mafia (EME) gang and placed in the security housing unit (SHU), resulting in him serving a sentence beyond that agreed to pursuant to his plea bargain because of the lack of credit earning. More specifically, Petitioner contends he was falsely accused of being a member of the gang and his procedural due process rights were denied in relation to the process utilized in the validation proceedings. Petitioner contends his placement in the SHU is the result of retaliation for filing a prior civil rights complaint against prison officials and he is the subject of atypical and significant hardship because of his current confinement.
Petitioner's allegations regarding his placement in the SHU resulting from his 2009 gang validation proceeding for which he claims was retaliatory and violated his rights to due process are not cognizable via section 2254. Petitioner's allegations concern only the conditions of his confinement. Petitioner does not allege facts that point to a real possibility of constitutional error that affected the legality or duration of his ...