(PC) Hopper v. Madden ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DOUGLAS LEE HOPPER, Case No. 2:21-cv-00985-JDP (HC) 12 Petitioner, ORDER GRANTING PETITIONER’S FIRST APPLICATION TO PROCEED IN FORMA 13 v. PAUPERIS AND DENYING HIS SECOND AS MOOT 14 BRIAN KIBLER, ECF Nos. 7 & 10 15 Respondent. ORDER FINDING THAT THE PETITION 16 DOES NOT STATE A COGNIZABLE CLAIM AND GIVING LEAVE TO AMEND WITHIN 17 SIXTY DAYS 18 ECF No. 1 19 20 Petitioner is a state prisoner seeking a writ of habeas corpus under 28 U.S.C. § 2254. ECF 21 No. 1. The petition is before me for preliminary review under Rule 4 of the Rules Governing 22 Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine 23 the habeas petition and order a response to the petition unless it “plainly appears” that the 24 petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); 25 Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). The petition cannot proceed because it 26 does not state a viable habeas claim. 27 Petitioner argues that his due process rights were violated during a prison disciplinary 28 hearing because the investigative employee assigned to assist him was ineffective. ECF No. 1 at 1 | 3. He also alleges that the officer overseeing his hearing violated his due process rights by 2 | denying his request to call witnesses. Jd. at 27. He asks that his disciplinary conviction be 3 | overturned and that one-hundred and eighty days of credit be restored to him. /d. at 38. These 4 | claims cannot proceed in a habeas petition. Petitioner has acknowledged that he is serving an 5 || indeterminate sentence of two-hundred and twenty years to life. Jd. at 2. Thus, even if his credit 6 || was restored, he would not necessarily be entitled to speedier release. See Nettles v. Grounds, 7 | 830 F.3d 922, 934-35 (9th Cir. 2016). His claims must be brought, if at all, in a section 1983 8 | action. Id. at 935. I will give petitioner an opportunity to file an amended petition that explains 9 | why his claims should be allowed to proceed before recommending that this action be dismissed. 10 It is ORDERED that: 11 1. Petitioner’s application to proceed in forma pauperis, ECF No. 7, is granted. 12 2. Petitioner’s application to proceed in forma pauperis, ECF No. 10, is denied as 13 |} moot. 14 3. Petitioner may file an amended petition within sixty days of this order’s entry. If 15 | he does not, I will recommend that the current petition be dismissed for the reasons stated in this 16 | order. 17 4. The Clerk of Court is directed to send petitioner a federal habeas form. 18 19 IT IS SO ORDERED. 20 ( 1 Oy — Dated: _ August 3, 2021 21 JEREMY D. PETERSON 9 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28