United States District Court, E.D. California
RICHARD C. ACORD, Petitioner,
KINGS COUNTS, CA, Respondent.
FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR
LACK OF HABEAS JURISDICTION (DOC. 1) ORDER DIRECTING
OBJECTIONS TO BE FILED WITHIN TWENTY-ONE DAYS ORDERING
DIRECTING CLERK OF THE COURT TO ASSIGN DISTRICT JUDGE TO
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE
handwritten petition does not indicate if Petitioner is in
custody of any state authority nor does it indicate whether
Petitioner has been convicted of a crime. The petition does
not refer to any conviction or sentence to which Petitioner
may presently be subject. Instead, Petitioner claims the
County of Kings, California, has failed to abide by a
California law that every county establish a public
defender’s office. The petition does not allege that
Petitioner is one who would benefit from such an agency, were
it established, or that he has standing to raise this claim
on behalf of other, similarly-situated individuals.
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). 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 or duration” of his
confinement. Badea v. Cox, 931 F.2d 573, 574 (9th
Cir. 1991), quoting, Preiser v. Rodriguez,
411 U.S. 475, 485, 93 S.Ct. 1827 (1973); Ramirez v.
Galaza, 334 F.3d 850, 859 (9th Cir.
2003)(“[H]abeas jurisdiction is absent, and a §
1983 action proper, where a successful challenge to a prison
condition will not necessarily shorten the prisoner’s
sentence”); Advisory Committee Notes to Rule 1 of the
Rules Governing Section 2254 Cases.
alleges that Kings County is violating the constitutional
rights of its citizens who are accused of crimes by failing
to comply with California statutes and regulations requiring
all counties in California to establish a public
defender’s office. As relief, Petitioner requests, inter
alia, an order from this Court requiring Kings County to
immediately come into compliance with state regulations
regarding establishment of a public defender’s office;
that the Court issue an injunction against all criminal
proceedings in that county until compliance is accomplished;
and that the Court declare all criminal convictions within
the last fifteen years that involved court-appointed counsel
be declared illegal and unconstitutional. (Doc. 1, pp. 3-4).
for purposes of argument, that Petitioner is presently
confined by Respondent, Petitioner is not challenging the
fact or duration of that confinement. No relief requested by
Petitioner in his petition would affect the fact or duration
of Petitioner’s sentence, if indeed Petitioner is
presently serving a sentence. Therefore, Petitioner is not
entitled to habeas corpus relief, and this petition must be
dismissed. Should Petitioner wish to pursue his claims,
Petitioner must do so by way of some other legal avenue,
e.g., a civil rights compliant pursuant to 42 U.S.C. §
1983 or a class action suit against Kings County for failing
to follow California law.
the Clerk of the Court is HEREBY DIRECTED to assign a United
States District Judge to this case.
the Court RECOMMENDS that the habeas corpus petition be
DISMISSED for Petitioner’s failure to state a
cognizable federal habeas claims.
Findings and Recommendation is submitted to the United States
District Court Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
the Local Rules of Practice for the United States District
Court, E.D. California. Within 21 days after being served
with a copy of this Findings and Recommendation, any party
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
Recommendation.” Replies to the Objections shall be
served and filed within 10 days (plus three days if served by
mail) after service of the Objections. The Court will then
review the Magistrate Judge’s ruling pursuant to 28
U.S.C. § 636 (b)(1)(C). The parties are advised that
failure to file objections within the specified time may
waive the right to appeal the Order of the District Court.
Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).