United States District Court, E.D. California
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
K. OBERTO UNITED STATES MAGISTRATE JUDGE
William Johnson is a state prisoner proceeding pro
se with a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. He alleges that a prison disciplinary
hearing violated his due process and equal protection rights,
and seeks reversal of the disciplinary findings and return to
full program status. The Court has reviewed the petition
(Doc. 1) and determined that the petition does not state a
cognizable claim for habeas corpus relief. Accordingly, the
Court will dismiss the petition without prejudice to
Petitioner's alleging his claims in an action pursuant to
42 U.S.C. § 1983.
of the Rules Governing § 2254 Cases requires the Court
to conduct a preliminary review of each petition for writ of
habeas corpus. The Court must dismiss a petition "[i]f
it plainly appears from 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, 491 (9th Cir. 1990). 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 to be granted.
Jarvis v. Nelson, 440 F.2d 13, 14 (9th
The Petition Fails to State a Habeas Claim
federal petition for writ of habeas corpus concerns whether a
petitioner is in custody in violation of the Constitution. 28
U.S.C. § 2254(a). "Habeas corpus is the exclusive
remedy for a state prisoner who challenges the fact or
duration of his confinement and seeks immediate or speedier
release, even though such a claim may come within the literal
terms of § 1983." Preiser v. Rodriguez,
411 U.S. 475, 488-89 (1973). Challenges to the conditions of
prison life are properly brought under 42 U.S.C. § 1983.
McCarthy v. Bronson, 500 U.S. 136, 142 (1991).
seeks redress for violations of his Due Process and Equal
Protection rights in the course of disciplinary proceedings
that resulted in Petitioner's losing certain programming
privileges. Because Petitioner is serving a sentence of life
without parole, the disciplinary sanctions do not concern the
fact or duration of petitioner's confinement nor seek
immediate or speedier release. Accordingly, Petitioner's
claims are appropriately pursued in a civil rights claim
pursuant to 42 U.S.C. § 1983.
Petitioner is not entitled to habeas corpus relief, the Court
must dismiss his habeas corpus petition. Petitioner may
pursue his claims by filing a civil rights complaint pursuant
to 42 U.S.C. § 1983.
Certificate of Appealability
petitioner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's denial of his
petition, but may only appeal in certain circumstances.
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003).
The controlling statute in determining whether to issue a
certificate of appealability is 28 U.S.C. § 2253, which
(a) In a habeas corpus proceeding or a proceeding under
section 2255 before a district judge, the final order shall
be subject to review, on appeal, by the court of appeals for
the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a
proceeding to test the validity of a warrant to remove to
another district or place for commitment or trial a person
charged with a criminal offense against the United States, or
to test the validity of such person's detention pending
(c) (1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to