United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT
JUDGE FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR
WRIT OF HABEAS CORPUS
Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE
15, 2019, Petitioner filed this writ of habeas corpus in the
District of Columbia. (Doc. 1.) The District of Columbia
transferred the petition to the Northern District of
California on July 24, 2019. (Doc. 3.) The Northern District
of California then transferred the petition to this Court on
October 1, 2019. (Doc. 11.) For the following reasons, the
Court will recommend the petition be DISMISSED.
Preliminary Review of Petition
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 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 granted. Jarvis v.
Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
federal court must dismiss a second or successive petition
that raises the same grounds as a prior petition. 28 U.S.C.
§ 2244(b)(1). The court must also dismiss a second or
successive petition raising a new ground unless the
petitioner can show that 1) the claim rests on a new,
retroactive, constitutional right or 2) the factual basis of
the claim was not previously discoverable through due
diligence, and these new facts establish by clear and
convincing evidence that but for the constitutional error, no
reasonable factfinder would have found the applicant guilty
of the underlying offense. 28 U.S.C. §
2244(b)(2)(A)-(B). However, it is not the district court that
decides whether a second or successive petition meets these
2244(b)(3)(A) provides: "Before a second or successive
application permitted by this section is filed in the
district court, the applicant shall move in the appropriate
court of appeals for an order authorizing the district court
to consider the application." In other words, Petitioner
must obtain leave from the Ninth Circuit before he can file a
second or successive petition in district court. See
Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This
Court must dismiss any second or successive petition unless
the Court of Appeals has given Petitioner leave to file the
petition because a district court lacks subject-matter
jurisdiction over a second or successive petition. Burton
v. Stewart, 549 U.S. 147, 152 (2007); Cooper v.
Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001).
noted by the Northern District of California in its order of
transfer, this petition would have to be dismissed as a
second or successive petition that has not been authorized by
the Court of Appeals because a prior federal habeas petition
directed to the same convictions was denied on the merits.
(Doc. 11 at 1); see Hubbard v. Gipson,
Court finds that the instant petition is “second or
successive” under 28 U.S.C. § 2244(b). Petitioner
makes no showing that he has obtained prior leave from the
Ninth Circuit to file his successive petition. Therefore,
this Court has no jurisdiction to consider Petitioner's
renewed application for relief under 28 U.S.C. § 2254
and must dismiss the petition. See Burton, 549 U.S.
Civil Rights Claims
appears that Petitioner is also making complaints concerning
the conditions of confinement. 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
(1973)). In contrast, a civil rights action pursuant to 42
U.S.C. § 1983 is the proper method for a prisoner to
challenge the conditions of confinement. McCarthy v.
Bronson, 500 U.S. 136, 141-42 (1991); Preiser,
411 U.S. at 499. Petitioner's civil rights claims are not
cognizable in a federal habeas action and must be dismissed.
Petitioner must seek relief for his complaints by way of a
civil rights action.
Nettles, the Ninth Circuit held that a district
court has the discretion to construe a habeas petition as a
civil rights action under § 1983. Nettles v.
Grounds, 830 F.3d 922, 936 (9th Cir. 2016). However,
recharacterization is appropriate only if it is
“amenable to conversion on its face, meaning that it
names the correct defendants and seeks the correct relief,
” and only after the petitioner is warned of the
consequences of conversion and is provided an opportunity to
withdraw or amend the petition. Id. Here, the Court
does not find recharacterization to be appropriate.
Petitioner does not name ...