(HC) Larson v. Covello ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL DOUGLAS LARSON, No. 2:21-cv-0235 CKD P 12 Petitioner, 13 v. ORDER AND 14 P. COVELLO, et al., FINDINGS AND RECOMMENDATIONS 15 Respondents. 16 17 Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus and a request for 18 leave to proceed in forma pauperis. Examination of the in forma pauperis application reveals that 19 petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma 20 pauperis will be granted. See 28 U.S.C. § 1915(a). 21 Petitioner asserts that he should be released from prison because officials at his prison 22 have not responded adequately to the Covid-19 pandemic resulting in harmful conditions of 23 confinement. 24 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 25 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). This is the case if this court considers petitioner’s 26 habeas petition under 28 U.S.C. § 2254 or § 2241. Laing v. Ashcroft, 370, F.3d 994, 997 (9th 27 Cir. 2004). A habeas petitioner satisfies the exhaustion requirement by providing the highest 28 ///// 1 state court with a full and fair opportunity to consider all claims before presenting them to the 2 federal court. Picard v. Connor, 404 U.S. 270, 276 (1971). 3 In his petition, petitioner admits he has not presented any of his claims to any California 4 court. This being the case, petition is not entitled to habeas relief. 5 Petitioner has filed a motion asking permission to supplement his habeas petition with a 6 42 U.S.C. §1983 complaint. Because a 42 U.S.C. § 1983 action involves laws which are different 7 from those which apply in a habeas action (e.g. laws concerning filing fees, statutes of limitation, 8 exhaustion requirements), the court does not permit one action to contain both habeas claims and 9 § 1983 claims. If petitioner seeks relief under 42 U.S.C. § 1983, he must file a separate action. 10 Petitioner is advised the filing fee in a § 1983 action is $350, which petitioner would be permitted 11 to pay in installments, as opposed to the $5 filing fee for a habeas action. 12 In accordance with the above, IT IS HEREBY ORDERED that: 13 1. Petitioner’s request for leave to proceed in forma pauperis (ECF No. 14) is granted; 14 2. Petitioner’s “motion for adjunct habeas corpus § 2254 to civil rights complaint . . .” 15 (ECF No. 12) is denied; and 16 3. The Clerk of the Court assign a district court judge to this case. 17 IT IS HEREBY RECOMMENDED that: 18 1. Petitioner’s habeas petition be dismissed without prejudice for failure to exhaust state 19 court remedies; and 20 2. This case be closed. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” In his objections petitioner 26 may address whether a certificate of appealability should issue in the event he files an appeal of 27 the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district 28 court must issue or deny a certificate of appealability when it enters a final order adverse to the 1 | applicant). Where, as here, a habeas petition is dismissed on procedural grounds, a certificate of 2 || appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it 3 || debatable whether the district court was correct in its procedural ruling;’ and (2) ‘that jurists of 4 || reason would find it debatable whether the petition states a valid claim of the denial of a 5 || constitutional right.”” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. 6 || McDaniel, 529 U.S. 473, 484 (2000)). Any response to the objections shall be served and filed 7 || within fourteen days after service of the objections. The parties are advised that failure to file 8 | objections within the specified time may waive the right to appeal the District Court’s order. 9 | Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 10 | Dated: May 24, 2021 / aa LaF / ip a i CAROLYN K DELANEY 12 UNITED STATES MAGISTRATE JUDGE 13 14 IS |, 6 lars0235.103 17 18 19 20 21 22 23 24 25 26 27 28