(HC) Pollard v. Yellen ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 KENNETH BUFORD POLLARD, ) Case No.: 1:21-cv-00323-SKO (HC) ) 12 Petitioner, ) ORDER TO ASSIGN DISTRICT JUDGE ) 13 v. ) FINDINGS AND RECOMMENDATION TO ) DISMISS PETITION FOR LACK OF HABEAS 14 ) JURISDICTION 15 JANET YELLEN, Secretary of U.S. Treasury, ) ) [TWENTY-ONE DAY OBJECTION DEADLINE] 16 Respondent. ) ) 17 18 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of 19 habeas corpus pursuant to 28 U.S.C. § 2254. He filed the instant federal petition on March 4, 2021. 20 After conducting a preliminary screening of the petition, the Court finds that the petition fails to 21 present any cognizable grounds for relief. Therefore, the Court will recommend that the petition be 22 SUMMARILY DISMISSED. 23 I. DISCUSSION 24 A. Preliminary Review of Petition 25 Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary 26 review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it 27 plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in 28 the district court . . . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory 1 Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, 2 either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an 3 answer to the petition has been filed. 4 B. Failure to State a Cognizable Federal Claim 5 The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2254(a) states: 6 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to a 7 judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 8 9 (emphasis added). See also Rule 1 to the Rules Governing Section 2254 Cases in the United States 10 District Court. The Supreme Court has held that “the essence of habeas corpus is an attack by a 11 person in custody upon the legality of that custody . . .” Preiser v. Rodriguez, 411 U.S. 475, 484 12 (1973). 13 Furthermore, to succeed in a petition pursuant to 28 U.S.C. § 2254, Petitioner must 14 demonstrate that the adjudication of his claim in state court 15 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United 16 States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 17 18 28 U.S.C. § 2254(d)(1),(2). 19 The instant petition does not challenge the legality of Petitioner’s custody. Petitioner instead 20 complains that Respondent has failed to provide him with the stimulus payment to which he is entitled 21 in light of the COVID-19 pandemic. In addition, he claims the Government has wrongly denied him 22 SSI benefits. Because Petitioner does not challenge the fact or duration of his confinement, he is not 23 entitled to habeas corpus relief and this petition must be dismissed. Preiser, 411 U.S. at 485. 24 II. ORDER 25 IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign a district judge to 26 this case. 27 ///// 28 ///// 1 III. RECOMMENDATION 2 Based on the foregoing, the Court HEREBY RECOMMENDS that the instant petition be 3 SUMMARILY DISMISSED for failure to state a claim. 4 This Findings and Recommendation is submitted to the United States District Court Judge 5 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the 6 Local Rules of Practice for the United States District Court, Eastern District of California. Within 7 twenty-one (21) days after being served with a copy, Petitioner may file written objections with the 8 court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 9 Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 10 636 (b)(1)(C). Petitioner is advised that failure to file objections within the specified time may waive 11 the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 13 IT IS SO ORDERED. 14 Sheila K. Oberto Dated: March 9, 2021 /s/ . 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28