Pough v. Hixon

Full title: DANA POUGH, Petitioner, v. BRIAN HIXON, et al., Respondents

Court: United States District Court, E.D. California

Date published: May 23, 2007

No. CIV S-07-0035 MCE EFB P (E.D. Cal. May. 23, 2007)

Opinion

No. CIV S-07-0035 MCE EFB P.

May 23, 2007

ORDER

EDMUND BRENNAN, Magistrate Judge

Petitioner is a state prisoner without counsel. On January 8, 2007, petitioner filed a complaint in this matter. On January 18, 2007, the court dismissed the complaint as improperly filed, because petitioner is seeking to challenge duration and not the conditions of confinement, and directed petitioner to file a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On February 6, 2007, petitioner instead filed a motion to vacate pursuant to 28 U.S.C. § 2255. Petitioner is advised that such a motion is available only to inmates in federal custody. Petitioner is a state prisoner and must, therefore, file a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's February 6, 2007, motion pursuant to 28 U.S.C. § 2255 is dismissed.

2. Petitioner is granted a period of thirty days from the date this order is served to file a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

3. The petition must bear the case number assigned to this action.

4. The Clerk of the Court is directed to send plaintiff the court's form for application for writ of habeas corpus.