United States District Court, C.D. California
Marcus R. Ellington, Sr.
Secretary of the Dep't of Corrections and Rehabilitation
Present: The Honorable KENLY KIYA KATO, UNITED STATES
Order to Show Cause Why this Action Should Not Be Summarily
Dismissed for Failure to State a Cognizable Habeas Claim
November 12, 2019, Petitioner Marcus R. Ellington
(“Petitioner”), an inmate at California State
Prison - Los Angeles County in Lancaster, California,
constructively filed a pro se Petition for Writ of Habeas
Corpus (“Petition”) pursuant to 28 U.S.C. §
2254. See Dkt. 1, Pet. Petitioner appears to be challenging a
January 6, 2019 prison disciplinary decision removing him
from the prison's Kosher Diet Program. As discussed
below, the Court orders Petitioner to show cause why his
Petition should not be summarily dismissed for failure to
state a cognizable habeas claim.
October 1, 2017, after a jury trial in Los Angeles County
Superior Court, Petitioner was convicted of “criminal
threat; sexual battery; weapon possession.” Dkt. 1 at
2. On April 20, 2018, Petitioner was sentenced to “55
years to life.” Id.
November 12, 2019, Petitioner filed the instant Petition
pursuant to 28 U.S.C. § 2254 challenging a January 6,
2019 prison disciplinary decision removing him from the
prison's Kosher Diet Program. Dkt. 1. Petitioner argues
his First Amendment right to freely practice his religion was
violated when he was removed from the Kosher Diet Program.
Id. at 6. Petitioner seeks injunctive, declaratory,
and monetary relief. Id. at 7.
district court “shall entertain an application for a
writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court only on the ground
that he is in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C.
§ 2254(a); see also Estelle v. McGuire, 502
U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).
“Suits challenging the validity of the prisoner's
continued incarceration lie within ‘the heart of habeas
corpus,' whereas ‘a § 1983 action is a proper
remedy for a state prisoner who is making a constitutional
challenge to the conditions of his prison life, but not to
the fact or length of his custody.'” Ramirez v.
Galaza, 334 F.3d 850, 856 (9th Cir. 2003) (quoting
Preiser v.Rodriguez,411 U.S. 475, 484, 93
S.Ct. 1827, 1833, 36 L.Ed.2d 439 (1973)). “[A] prisoner
may seek a writ of habeas corpus under 28 U.S.C. § 2241