(HC) Hubbard v. Baughman ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ZANE HUBBARD, Case No. 1:19-cv-00287-JDP (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS THAT COURT DISMISS PETITION FOR 13 v. LACK OF JURISDICTION 14 DAVID BAUGHMAN and XAVIER ECF No. 1 BACERRA, 15 ORDER DIRECTING CLERK OF COURT TO Respondents. ASSIGN CASE TO DISTRICT JUDGE 16 17 18 Petitioner Zane Hubbard, a state prisoner without counsel, seeks a writ of habeas corpus 19 under 28 U.S.C. § 2254. ECF No. 1.1 The matter is before the court for screening under Rule 4 20 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas 21 proceeding must examine the habeas petition and order a response to the petition unless it 22 “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 23 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). The rule 24 allows courts to dismiss petitions that are patently frivolous, vague, conclusory, palpably 25 incredible, or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 26 1 Petitioner, who has incurred three strikes under the Prison Litigation Reform Act, Hubbard v. 27 United States of America, No. 1:14-cv-905, ECF No. 6 (E.D. Cal. June 30, 2014), has filed multiple habeas petitions that do not challenge the legality of his custody. See Case Nos. 1:19-cv- 28 132, 1:19-cv-287, 1:19-cv-337. 1 I recommend that the court dismiss the case at screening. Petitioner raises one claim: that 2 the warden of his prison failed to allow petitioner to appear in court in a civil proceeding. See 3 ECF No. 1 at 6-8. This claim does not concern the legality of petitioner’s confinement, so the 4 court lacks jurisdiction and cannot grant habeas relief. See Nettles v. Grounds, 830 F.3d 922, 934 5 (9th Cir. 2016). If petitioner wishes to litigate his claim, he must file a Section 1983 complaint, 6 see id., and the complaint must contain allegations that would withstand screening, see 28 U.S.C. 7 § 1915A(a) and Fed. R. Civ. P. 8. 8 The court should decline to convert the petition into a Section 1983 complaint. Petitioner 9 has three strikes under the Prison Litigation Reform Act, Hubbard v. United States of America, 10 No. 1:14-cv-905, ECF No. 6 (E.D. Cal. June 30, 2014), so, before proceeding with a 1983 claim, 11 he would need either to satisfy the imminent-danger exception or to pay the full filing fee. See 12 Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Petitioner has done neither. 13 Furthermore, his allegations are conclusory. 14 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 15 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 16 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases 17 requires a district court to issue or deny a certificate of appealability when entering a final order 18 adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 19 1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner makes 20 “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This 21 standard requires the petitioner to show that “jurists of reason could disagree with the district 22 court’s resolution of his constitutional claims or that jurists could conclude the issues presented 23 are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; see Slack 24 v. McDaniel, 529 U.S. 473, 484 (2000). The petitioner must show “something more than the 25 absence of frivolity or the existence of mere good faith.” Miller-El, 537 U.S. at 338. 26 Reasonable jurists would not disagree that the petition here is an unauthorized successive 27 petition and that it should not proceed further. Thus, the court should decline to issue a certificate 28 of appealability. 1 Order 2 The clerk of court is directed to assign this case to a U.S. District Court Judge. 3 IL Findings and Recommendations 4 I recommend that the court dismiss the petition for a writ of habeas corpus, ECF No. 1, for 5 | lack of jurisdiction and decline to issue a certificate of appealability. 6 These findings and recommendations are submitted to the U.S. District Court Judge 7 | presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of 8 | Practice for the United States District Court, Eastern District of California. Within fourteen days 9 | of the service of the findings and recommendations, any party may file written objections to the 10 | findings and recommendations with the court and serve a copy on all parties. That document 11 | must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 12 | District Judge will then review the findings and recommendations under 28 U.S.C. 13 | § 636(b)(1)(C). 14 15 IT IS SO ORDERED. 16 ( _wais Dated: _ September 24, 2019 17 UNI STATES MAGISTRATE JUDGE 18 19 20 No. 202 21 22 23 24 25 26 27 28