Opinion
No. CIV S-06-0610 DFL KJM P.
December 14, 2006
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis.
Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted.See 28 U.S.C. § 1915(a).
Petitioner challenges the finding that he violated prison rules by possessing drugs with the intent to distribute them. None of his good time credits were forfeited, but his visiting privileges were restricted. Petition, Ex. E (Rules Violation Report).
One of the requirements for habeas relief is that the petitioner be "in custody," for "the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from illegal custody." Preiser v. Rodriguez, 411 U.S. 475, 484 (1973); 28 U.S.C. § 2254(a). Only when a petitioner challenges the "fact or duration" of his confinement does he satisfy the "custody" requirement. A challenge to the loss of visitation is not cognizable in a habeas action. Homen v. Hasty, 229 F.Supp.2d 290, 295 (S.D.N.Y. 2002). A court may dismiss a habeas petition without issuing an order to show cause if it appears the petitioner is not entitled to relief; this is an appropriate case for such an action. Harris v. Nelson, 394 U.S. 286, 298-99 (1969); Hunt v. Eyman, 429 F.2d 1318, 1319 (9th Cir. 1970).
IT IS HEREBY ORDERED that petitioner's request to proceed in forma pauperis is granted.
IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be 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)(1). Within twenty days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." 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).