United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS THAT COURT DISMISS
PETITION FOR LACK OF JURISDICTION ECF No. 1 AND ORDER
DIRECTING CLERK OF COURT TO ASSIGN CASE TO DISTRICT
Zane Hubbard, a state prisoner without counsel, seeks a writ
of habeas corpus under 28 U.S.C. § 2254. ECF No.
The matter is before the court for screening under Rule 4 of
the Rules Governing Section 2254 Cases. Under Rule 4, the
judge assigned to the habeas proceeding must examine the
habeas petition and order a response to the petition unless
it “plainly appears” that the petitioner is not
entitled to relief. See Valdez v. Montgomery, 918
F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147
F.3d 1124, 1127 (9th Cir. 1998). The rule allows courts to
dismiss petitions that are patently frivolous, vague,
conclusory, palpably incredible, or false. See Hendricks
v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
recommend that the court dismiss the case at screening.
Petitioner raises one claim: that the warden of his prison
failed to allow petitioner to appear in court in a civil
proceeding. See ECF No. 1 at 6-8. This claim does
not concern the legality of petitioner’s confinement,
so the court lacks jurisdiction and cannot grant habeas
relief. See Nettles v. Grounds, 830 F.3d 922, 934
(9th Cir. 2016). If petitioner wishes to litigate his claim,
he must file a Section 1983 complaint, see id., and
the complaint must contain allegations that would withstand
screening, see 28 U.S.C. § 1915A(a) and
court should decline to convert the petition into a Section
1983 complaint. Petitioner has three strikes under the Prison
Litigation Reform Act, Hubbard v. United States of
America, No. 1:14-cv-905, ECF No. 6 (E.D. Cal. June 30,
2014), so, before proceeding with a 1983 claim, he would need
either to satisfy the imminent-danger exception or to pay the
full filing fee. See Andrews v. Cervantes, 493 F.3d
1047, 1053 (9th Cir. 2007). Petitioner has done neither.
Furthermore, his allegations are conclusory.
petitioner seeking a writ of habeas corpus has no absolute
right to appeal a district court’s denial of a
petition; he may appeal only in limited circumstances.
See 28 U.S.C. § 2253; Miller-El v.
Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing
Section 2254 Cases requires a district court to issue or deny
a certificate of appealability when entering a final order
adverse to a petitioner. See also Ninth Circuit Rule
22-1(a); United States v. Asrar, 116 F.3d 1268, 1270
(9th Cir. 1997). A certificate of appealability will not
issue unless a petitioner makes “a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). This standard requires the petitioner to
show that “jurists of reason could disagree with the
district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented
are adequate to deserve encouragement to proceed
further.” Miller-El, 537 U.S. at 327; see
Slack v. McDaniel, 529 U.S. 473, 484 (2000). The
petitioner must show “something more than the absence
of frivolity or the existence of mere good faith.”
Miller-El, 537 U.S. at 338.
jurists would not disagree that the petition here is an
unauthorized successive petition and that it should not
proceed further. Thus, the court should decline to issue a
certificate of appealability.
clerk of court is directed to assign this case to a U.S.
District Court Judge.
Findings and Recommendations
recommend that the court dismiss the petition for a writ of
habeas corpus, ECF No. 1, for lack of jurisdiction and
decline to issue a certificate of appealability.
findings and recommendations are submitted to the U.S.
District Court Judge presiding over this case under 28 U.S.C.
§ 636(b)(1)(B) and Rule 304 of the Local Rules of
Practice for the United States District Court, Eastern
District of California. Within fourteen days of the service
of the findings and recommendations, any party may file
written objections to the findings and recommendations with
the court and serve a copy on all parties. That document must
be captioned “Objections to Magistrate Judge’s
Findings and Recommendations.” The District Judge will
then review the findings and recommendations under 28 U.S.C.
 Petitioner, who has incurred three
strikes under the Prison Litigation Reform Act, Hubbard
v. United States of America, No. 1:14-cv-905, ECF No. 6
(E.D. Cal. June 30, 2014), has filed multiple habeas
petitions that do not challenge the legality of his custody.