United States District Court, E.D. California
ORDER TO SHOW CAUSE WHY THE PETITION SHOULD NOT BE
DISMISSED THIRTY (30) DAY DEADLINE CLERK TO SEND BLANK HABEAS
CORPUS FORM TO PETITIONER
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.
is a County jail inmate prisoner proceeding pro se with a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. She has been convicted on several occasions in
the Fresno County Superior Court.
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.
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 her confinement. Badea v. Cox,
931 F.2d 573, 574 (9th Cir. 1991), quoting, Preiser v.
Rodriguez, 411 U.S. 475, 485 (1973); Advisory Committee
Notes to Rule 1 of the Rules Governing Section 2254 Cases.
contrast, a civil rights action pursuant to 42 U.S.C. §
1983 is the proper method for a prisoner or civil detainee to
challenge the conditions of that confinement. McCarthy v.
Bronson, 500 U.S. 136, 141-42 (1991); Preiser,
411 U.S. at 499; Badea, 931 F.2d at 574; Advisory
Committee Notes to Rule 1 of the Rules Governing Section 2254
most part, Petitioner's claims do not implicate the fact
or duration of her confinement. Petitioner primarily
challenges her medical care in the jail. This presents a
challenge to her conditions of confinement, not the fact or
duration of her confinement. Claims related to medical care
do not fall within the Court's habeas jurisdiction.
does also seeks compassionate release under California law
due to her medical issues. However, claims arising only under
state law, even if meritorious, would not provide a basis for
federal habeas jurisdiction.
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). Thus, Plaintiff
will be provided the opportunity to file an amended petition.
does present one claim that sounds in habeas. Although
somewhat unclear, she appears to claim that she was either
convicted or sentenced on two separate occasions for the same
offense. There is, however, no indication in the petition