(HC) Marshall v. Department of the Treasury Internal Revenue Service ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GERALD MARSHALL, No. 1:21-cv-00859-SKO (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS 14 DEPARTMENT OF THE TREASURY, TO DISMISS PETITION FOR WRIT OF INTERNAL REVENUE SERVICE, HABEAS CORPUS 15 Respondent. [TWENTY-ONE DAY DEADLINE] 16 17 18 Petitioner is confined at the Atascadero State Hospital proceeding pro se and in forma 19 pauperis with a petition for writ of habeas corpus under 28 U.S.C. § 2241. 20 Petitioner filed the instant habeas petition on May 28, 2021. He complains that 21 Respondent has illegally withheld economic impact payments from him. The Court finds that 22 Petitioner fails to establish grounds for habeas corpus relief. Accordingly, the Court will 23 recommend that the petition be DISMISSED. 24 DISCUSSION 25 A. Preliminary Review of Petition 26 Rule 4 of the Rules Governing Section 2254 Cases1 requires the Court to make a 27 1 The Rules Governing Section 2254 Cases in the United States Courts (Habeas Rules) are appropriately applied to 28 proceedings undertaken pursuant to 28 U.S.C. § 2241. Habeas Rule 1(b). 1 preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss 2 a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is 3 not entitled to relief in the district court . . . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 4 (9th Cir. 1990). The Court may dismiss a petition for writ of habeas corpus, either on its own 5 motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an answer to the 6 petition has been filed. See Advisory Committee Notes to Habeas Rule 8. 7 B. Failure to State a Cognizable Federal Claim 8 The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2241(c)(3) 9 provides that the writ of habeas corpus shall not extend to a prisoner unless “[h]e is in custody in 10 violation of the Constitution or laws or treaties of the United States.” The Supreme Court has 11 held that “the essence of habeas corpus is an attack by a person in custody upon the legality of 12 that custody . . .” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). 13 Petitioner does not allege he is confined in violation of the Constitution or laws or treaties 14 of the United States. He does not challenge the legality of his custody. Rather, he claims that he 15 has not received economic impact payments to which he is entitled. Petitioner fails to state a 16 cognizable federal claim and the petition should be dismissed. Crawford v. Bell, 599 F.2d 890, 17 891-892 (9th Cir. 1979) (“the writ of habeas corpus is limited to attacks upon the legality or 18 duration of confinement”). 19 ORDER 20 IT IS HEREBY ORDERED that the Clerk of Court shall randomly assign a district judge 21 to this case. 22 RECOMMENDATION 23 For the foregoing reasons, the Court RECOMMENDS that the Petition for Writ of Habeas 24 Corpus be DISMISSED for failure to state a cognizable claim. 25 This Findings and Recommendations is submitted to the United States District Court 26 Judge assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 27 of the Local Rules of Practice for the United States District Court, Eastern District of California. 28 Within twenty-one (21) days after being served with a copy of this Findings and 1 Recommendations, Petitioner may file written objections with the Court. Such a document 2 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations. The 3 Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). 4 Petitioner is advised that failure to file objections within the specified time may waive the right to 5 appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 IT IS SO ORDERED. 7 Sheila K. Oberto 8 Dated: June 1, 2021 /s/ . UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28