Opinion
No. 2:15-cv-2237 CKD P
11-02-2015
ANTHONY R.G. TURNER, Petitioner, v. JEFFREY A. BEARD, Respondent.
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
Under Rule 4 of the Rules Governing Section 2254 Cases, the court is required to conduct a preliminary review of all petitions for writ of habeas corpus filed by state prisoners. The court must summarily dismiss a petition if it "plainly appears . . . that the petitioner is not entitled to relief. . ." The court has conducted the review required under Rule 4.
Petitioner challenges conditions of confinement. However, an application for writ of habeas corpus by a state prisoner can only be entertained by this court if the prisoner alleges he is in custody in violation of federal law. 28 U.S.C. § 2241(a). Because petitioner does not allege he is in custody in violation of federal law, or challenge the length of his sentence, no writ of habeas corpus can issue. Accordingly, the court will recommend that this action be dismissed.
If petitioner wishes to challenge conditions of confinement, he should initiate an action for violation of civil rights under 42 U.S.C. § 1983. Of course, as petitioner knows, he has "struck out" pursuant to 28 U.S.C. § 1915(g) so he will not be permitted to proceed in forma pauperis in a § 1983 action unless he is "under imminent danger of serious physical injury." --------
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's motion to proceed in forma pauperis (ECF No. 2) is granted; and
2. The Clerk of the Court assign a district court judge to this case.
IT IS HEREBY RECOMMENDED that petitioner's application for writ of habeas corpus be summarily dismissed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, petitioner may file written objections with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant). Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: November 2, 2015
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
1
turn2237.114