1 2 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 3 4 Mohamed Abdalla Mahmoud, Case No.: 2:23-cv-01123-CDS-DJA

5 Petitioner Order Dismissing § 2254 Habeas 6 v. Corpus Petition Without Prejudice and Closing Case 7 Brian Williams, [ECF No. 8] 8 Respondents

9 10 Petitioner Mohamed Adballa Mahmoud, who is in the custody of the Nevada 11 Department of Corrections (“NDOC”), submitted a petition for writ of habeas corpus under 12

. ECF No. 8. After initial review under the Rules Governing 2254 Cases, I 13 dismiss the petition without prejudice. 14 I. Background 15 Because Mahmoud did not properly commence this action by either paying the standard 16 filing fee or filing an application for leave to proceed in forma pauperis (“IFP”), I granted Mahmoud 17 an additional 45 days to pay the filing fee or file an IFP application. ECF No. 3. I granted 18 Mahmoud’s motion to extend time to pay the filing fee or complete an IFP application and 19 Mahmoud paid the filing fee. ECF Nos. 5, 6. 20 In November 2023, I informed Mahmoud that although he filed a habeas petition and 21 referenced his state habeas petition, his allegations were in the nature of prisoner civil rights 22 claims. ECF No. 7. I instructed the Clerk of the Court to send Mahmoud courtesy copies of the 23 forms to initiate a civil rights lawsuit or habeas case.

I informed Mahmoud that he cannot 24 pursue both types of claims in the same case and instructed him to either submit a § 1983 civil 25 rights complaint or a petition for writ of habeas corpus on the appropriate form. Id. 26 1 II. Discussion 2 Federal law provides two main avenues to relief for legal challenges to incarceration: (1) a 3 petition for writ habeas corpus,

, 2254, 2255; and (2) a civil rights complaint, 4

. If success on a habeas claim would not necessarily lead to a petitioner’s 5 immediate or earlier release from custody, the claim does not fall within “the core of habeas 6 corpus.” Nettles v. Grounds,

(9th Cir. 2016). Such claims must be brought, if at all, 7 under § 1983. If a prisoner is not challenging the fact of his confinement, but instead the 8 conditions under which he is being held, he must file a civil rights complaint. Id. at 933 9 (“[P]risoners may not challenge mere conditions of confinement in habeas corpus.”) (citing 10 Crawford v. Bell,

, 891–92 (9th Cir. 1979)). 11 Here, the petition fails to state a cognizable habeas claim. Mahmoud alleges he is 12 currently in custody at Northern Nevada Correctional Center. He further alleges that 13 corrections officers retaliated against him, made racial comments towards him, and denied him 14 access to use the bathroom. If he were to succeed on this claim, it would only mean that his 15 conditions of confinement would change. He would not be released from custody any sooner. 16 Because success on Mahmoud’s claims would not lead to his immediate or speedier release, they 17 do not fall in the “core” of habeas and must be brought, if at all, in a civil rights complaint.1 18 In addition, I decline to recharacterize Mahmoud’s petition as a civil-rights complaint. 19 When a habeas petition is amenable to conversion on its face, federal courts may construe the 20 petition to plead civil rights claims. Nettles, 830 F.3d at 935–36. However, habeas actions and 21 prisoner civil rights cases “differ in a variety of respects—that may make recharacterization 22 impossible or, if possible, disadvantageous to the prisoner compared to a dismissal without 23 prejudice of his petition for habeas corpus.”

In this case, the petition is not amenable to 24 conversion on its face based on the differences between habeas and civil rights cases and because 25 1 Mahmoud has already filed a federal habeas petition, has been appointed counsel, and that case has been 26 stayed pending resolution of his state postconviction habeas petition. See Case No. 3:22-cv-00452-MMD- CLB. is not clear whether recharacterization would disadvantage Mahmoud. I therefore dismiss the petition without prejudice and instruct the Clerk of the Court to send Mahmoud the approved 3|| form and instructions for filing a

complaint. 4TII. Conclusion 5 I THEREFORE ORDER that petitioner Mohamed Adballa Mahmouc’s petition for writ 6} of habeas corpus pursuant to

[ECF No. 8] is dismissed without prejudice. 7 IFURTHER ORDER that Mahmoud is denied a certificate of appealability, as jurists of reason would not find the dismissal of this action to be debatable or wrong. 9 FURTHER ORDER that the Clerk of the Court will send to Mahmoud the approved 10]| form and instructions for filing a

complaint. FURTHER ORDER that the Clerk of the Court will send to Mahmoud a blank form 12] IFP application for incarcerated litigants along with instructions, and a copy of this order. 13 The Clerk of the Court is kindly instructed to enter final judgment accordingly and to close this case. . 15 Dated: January 17, 2024 / ) 16 LZ 7 a ee 18 19 20 21 22 23 24 25 26