(PC) Hopper v. Madden

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 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 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 20 Petitioner is a state prisoner seeking a writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 1. The petition is before me for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine the habeas petition and order a response to the petition unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). The petition cannot proceed because it does not state a viable habeas claim.

27 Petitioner argues that his due process rights were violated during a prison disciplinary hearing because the investigative employee assigned to assist him was ineffective. ECF No. 1 at | 3. He also alleges that the officer overseeing his hearing violated his due process rights by | denying his request to call witnesses. Jd. at 27. He asks that his disciplinary conviction be | overturned and that one-hundred and eighty days of credit be restored to him. /d. at 38. These | claims cannot proceed in a habeas petition. Petitioner has acknowledged that he is serving an || indeterminate sentence of two-hundred and twenty years to life. Jd. at 2. Thus, even if his credit || was restored, he would not necessarily be entitled to speedier release. See Nettles v. Grounds, | 830 F.3d 922, 934-35 (9th Cir. 2016). His claims must be brought, if at all, in a section 1983 | action. Id. at 935. I will give petitioner an opportunity to file an amended petition that explains | 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 |} moot.

14 3. Petitioner may file an amended petition within sixty days of this order’s entry. If | he does not, I will recommend that the current petition be dismissed for the reasons stated in this | order.

17 4. The Clerk of Court is directed to send petitioner a federal habeas form.

19 IT IS SO ORDERED.

20 ( 1 Oy — Dated: _ August 3, 2021 21 JEREMY D. PETERSON 9 UNITED STATES MAGISTRATE JUDGE