Opinion
Case No.: 1:21-cv-00088-JLT (HC)
02-03-2021
IVAN VON STAICH, Petitioner, v. BOP PAROLE COMMISSION, Respondent.
ORDER DISMISSING PETITION WITH LEAVE TO FILE A FIRST AMENDED PETITION [THIRTY-DAY DEADLINE]
Petitioner filed a Petition for Writ of Habeas Corpus on January 21, 2021. (Doc. 1.) A preliminary screening of the petition reveals that the petition presents claims concerning the conditions of his confinement and fails to present any cognizable grounds for relief or any facts in support. Therefore, the Court will DISMISS the petition with leave to file an amended petition. I. DISCUSSION
A. Preliminary Review of Petition
Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court. . ." Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed.
B. Civil Rights Claims
Petitioner does not challenge his conviction on certain claims, but rather, it appears that Petitioner is making complaints concerning the conditions of confinement. For instance, Petitioner contends that he suffers from several medical conditions and is old and vulnerable to death at the "unsafe" Fresno County Jail due to exposure to COVID-19. (See Doc. 1 at 6-7, 10.)
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 these complaints by way of a civil rights action.
In Nettles v. Grounds, 830 F.3d 922, 936 (9th Cir. 2016), the Ninth Circuit held that a district court has the discretion to construe a habeas petition as a civil rights action under § 1983. 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 the proper defendants and the claims are not amenable to conversion on their face. Accordingly, the Court should not exercise its discretion to recharacterize the action. Therefore, the Court will recommend that these claims be dismissed, and the Clerk of Court be directed to send Petitioner a blank civil rights complaint.
C. Failure to State a Cognizable Federal Claim
The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2241(c)(3) provides that the writ of habeas corpus shall not extend to a prisoner unless "[h]e is in custody in violation of the Constitution or laws or treaties of the United States." The Supreme Court has held that "the essence of habeas corpus is an attack by a person in custody upon the legality of that custody . . ." Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).
In addition to the above, Rule 2(c) of the Rules Governing Section 2254 Cases requires that the petition:
The Rules Governing Section 2254 Cases in the United States Courts (Habeas Rules) are appropriately applied to proceedings undertaken pursuant to 28 U.S.C. § 2241. Habeas Rule 1(b).
(1) Specify all the grounds for relief available to the petitioner;Further, 28 U.S.C. § 2242 requires a petitioner to allege the facts concerning the petitioner's commitment or detention.
(2) State the facts supporting each ground;
(3) State the relief requested;
(4) Be printed, typewritten, or legibly handwritten; and
(5) Be signed under penalty of perjury by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. § 2242.
Petitioner has failed to comply with the aforementioned statutes and rules. He claims he was denied due process on a federal parole violation related to a federal warrant that was issued in 1983. (Doc. 1 at 4-5.) However, Petitioner fails to provide details of the federal warrant at issue. Petitioner fails to specify the grounds for relief or the facts supporting his grounds. Therefore, Petitioner fails to state a cognizable federal habeas claim and the petition must be dismissed.
Petitioner will be granted an opportunity to file a First Amended Petition curing these deficiencies. Petitioner is advised to include only habeas claims in his amended petition. Petitioner is advised that he should caption his pleading, "First Amended Petition," and he should reference the instant case number. Failure to comply with this order will result in recommendation of dismissal of the action. II. ORDER
Accordingly, the Court ORDERS:
1) The Petition for Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE for failure to state a claim;
2) Petitioner is GRANTED thirty days from the date of service of this order to file a First Amended Petition; and
3) The Clerk of Court is DIRECTED to provide Petitioner with a blank civil rights complaint form.IT IS SO ORDERED.
Dated: February 3 , 2021
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE