United States District Court, E.D. California
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
FOR FAILURE TO STATE A COGNIZABLE CLAIM, (ECF NOS. 1, 8, 10)
THIRTY (30) DAY OBJECTION DEADLINE
MICHAEL J. SENG, UNITED STATES MAGISTRATE JUDGE
is a federal prisoner proceeding pro se with a petition for
writ of habeas corpus under the authority of 28 U.S.C. §
2241. Respondent Andre Matevousian, warden of U.S.
Penitentiary -- Atwater, is represented by Karen Escobar of
the Office of the United States Attorney. Both parties have
consented to Magistrate Judge jurisdiction. (ECF Nos. 4, 6.)
January 24, 2017, Petitioner filed his petition for writ of
habeas corpus. (Pet., ECF No. 1.) Therein, he alleged that he
underwent a disciplinary hearing for possession of a
dangerous weapon and was found guilty. He was disallowed
forty one day of good conduct time and assessed a 15-day
segregated housing term, loss of commissary and phone
privileges, and a monetary fine. At the time he filed his
petition, he had finished his term in disciplinary
segregation. However, his institutional trust account was
frozen and he was unable to purchase hygiene items or pens.
He alleged that this freeze was imposed in retaliation and
prevented him from accessing the courts.
February 28, 2017, Petitioner filed a first amended petition,
which appeared intended to supplement, rather than replace
his original petition. (ECF No. 8.) He stated that he
continued to suffer restrictions on his trust account, was
unable to purchase stamps and pens, and was subjected to a
campaign of harassment and retaliation.
March 23, 2017, the Court screened the petitions and
determined that Petitioner's claims were not cognizable
grounds for habeas corpus relief. (ECF No. 9.) Petitioner was
granted leave to amend and was ordered to show cause why the
petition should not be dismissed. (Id.) Petitioner
filed his response to the order to show cause on April 6,
2017, which he also describes as his amended petition. (ECF
No. 10.) In the response, Petitioner alleges that he is
housed in a step-down unit where various privileges are
suspended. He cannot purchase stamps or pens. This has led to
a violation of his Fifth and First Amendment rights. He
states that the effect of these restrictions is equivalent to
what he would have experienced in disciplinary segregation.
Procedural Grounds for Summary Dismissal
of the Rules Governing Section 2254 Cases provides in
If it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court, the judge must dismiss the petition and
direct the clerk to notify the petitioner.
Advisory Committee Notes to Rule 8 indicate that 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. 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.2d 13, 14
(9th Cir. 1971).
Failure to State Cognizable Claim
federal court may only grant a petition for writ of habeas
corpus if the federal petitioner can demonstrate that he
"is in custody in violation of the Constitution or laws
or treaties of the United States." 28 U.S.C. §
2241(a), (c)(3). A habeas corpus petition is the correct
method for a prisoner to challenge “the very fact or
duration of his confinement, ” and where “the
relief he seeks is a determination that he is entitled to
immediate release or a speedier release from that
imprisonment.” Preiser v. Rodriguez, 411 U.S.
475, 489 (1973). In contrast, a civil rights action is the
proper method for a prisoner to challenge the conditions of
that confinement. See McCarthy v. Bronson, 500 U.S.
136, 141-42 (1991); Preiser, 411 U.S. at 499. In
other words, if a successful conditions of confinement
challenge would not necessarily shorten the prisoner's
sentence, then a civil rights action is the appropriate
vehicle. See Wilkinson v. Dotson, 544 U.S. 74
claims do not implicate the fact or duration of his
confinement. Petitioner does not challenge his underlying
conviction by way of his original or amended petitions.
Instead, Petitioner challenges the conditions of his
confinement. Specifically, he challenges the denial of access
to his trust account and commissary items, and what he
describes as harassment and retaliation. ...