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Hubbard v. Attorney General of California

United States District Court, E.D. California

October 23, 2014

ZANE HUBBARD, Petitioner,
v.
ATTORNEY GENERAL OF CALIFORNIA, Respondent.

ORDER & FINDINGS & RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 11, 2014, the undersigned recommended that this action be dismissed. (ECF No. 9.) On July 31, 2014, petitioner filed objections. (ECF No. 10.) In response to petitioner's objections, the undersigned vacates the July 11, 2014 findings and recommendations and issues the instant findings and recommendations, again recommending that this action be dismissed for the reasons stated herein.

On March 25, 2014, the undersigned dismissed the original petition with leave to amend. (ECF No. 4.) The court dismissed the original petition because petitioner did not identify the conviction he challenged. (Id.) In addition, petitioner challenged conditions of confinement, i.e., claims which should be raised in a civil rights action pursuant to 42 U.S.C. § 1983. (Id.)

On April 17, 2014, petitioner filed an amended petition. (ECF No. 7.) The amended petitioner identified the case number of the challenged conviction and the crimes petitioner was convicted of committing. However, the amended petition did not identify the county of conviction.

On May 15, 2014, the undersigned dismissed the amended petition with thirty days to file a second amended petition. (ECF No. 8.) In the May 15, 2014 order, the undersigned stated that the court required information regarding the county of conviction in order to determine whether venue was proper. (Id.) The undersigned also stated that while the amended petition listed petitioner's claims, it was not clear whether these claims were exhausted. (Id.)

Thirty days passed and petitioner did not file a second amended petition. Accordingly, on July 11, 2014, the undersigned recommended that this action be dismissed. (ECF No. 9.) On July 31, 2014, petitioner filed objections. (ECF No. 10.) Petitioner's objections clarify the claims petitioner is raising.

The objections are prepared on a form for a habeas corpus petition pursuant to 28 U.S.C. § 2254. This form indicates that petitioner is challenging a conviction from Kern County. The form also indicates that petitioner has a habeas corpus petition challenging this conviction pending in the Fresno Division of the United States District Court for the Eastern Division of California.

In his objections, petitioner claims that the Office of the Attorney General filed false and misleading pleadings in his state and federal actions challenging his Kern County conviction. It appears that petitioner is requesting that the court investigate the Office of the Attorney General and making findings that it acted unethically.

In a habeas corpus action brought pursuant to 28 U.S.C. § 2254, the court is not authorized to conduct investigations regarding the conduct of the Office of the Attorney General in other court actions. Petitioner's concerns regarding the Office of the Attorney General's pleadings filed in his federal habeas action should be raised in his habeas action pending in the Fresno Division. Petitioner's concerns regarding the Office of the Attorney General's pleadings filed in state court should be raised in state court. For these reasons, the undersigned recommends that this action be dismissed.

Accordingly, IT IS HEREBY ORDERED that the July 11, 2014 findings and recommendations are vacated; and

IT IS HEREBY RECOMMENDED that this action be dismissed for the reasons set forth in these findings and recommendations.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, petitioner may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." If petitioner files objections, he shall also address whether a certificate of appealability should issue and, if so, why and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(3). Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst , 951 F.2d 1153 (9th Cir. 1991).


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