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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ALLYN CHARPENTIER, 

Petitioner, No. CIV S-04-2616 GEB KJM P

vs.

CALIFORNIA DEPARTMENT

OF CORRECTIONS, 

Respondents. ORDER AND

 / FINDINGS & RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed an action on this court’s

form for a civil rights action under 42 U.S.C. § 1983 together with a request to proceed in forma

pauperis under28 U.S.C. § 1915. This declaration makes the showing required by § 1915(a). 

Accordingly, the request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a).

Petitioner asks the court to order his discharge from parole because he has been

denied the appropriate credits during one sentence imposed following a parole violation,

deprived of due process during a second parole violation hearing, and subjected to an illegal

extension of his parole term. He also makes a subsidiary request for compensation for his illegal

imprisonment.

An attack on the fact or duration of a prisoner’s confinement is one that must be

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 Petitioner is cautioned that the habeas corpus statute imposes a one year statute of

limitations for filing non-capital habeas corpus petitions in federal court. In most cases, the one

year period will start to run on the date on which the state court judgment became final by the

conclusion of direct review or the expiration of time for seeking direct review, although the

statute of limitations is tolled while a properly filed application for state post-conviction or other

collateral review is pending. 28 U.S.C. § 2244(d). 

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raised in a petition for a writ of habeas corpus, not a civil rights action. Williams v. Wisconsin,

336 F.3d 576, 579 (7th Cir. 2003). Although petitioner asks for damages for his illegal

confinement, the only way to establish the illegality of that confinement is through a petition for

a writ of habeas corpus. Accordingly, the court will treat the case as though it was originally

filed under 28 U.S.C. § 2254. 

The exhaustion of state court remedies is a prerequisite to the granting of a

petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion

requirement by providing the highest state court with a full and fair opportunity to consider all

claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971);

Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986). 

Upon review of the petition for habeas corpus, the court finds that petitioner has

failed to exhaust state court remedies. Petitioner notes that a habeas petition is pending in the

San Joaquin County Superior Court; this means the claims have not yet been presented to the

California Supreme Court. Further, there is no allegation that state court remedies are no longer

available to petitioner. Accordingly, the petition should be dismissed without prejudice.1

Good cause appearing, IT IS HEREBY ORDERED that:

1. Petitioner is granted leave to proceed in forma pauperis; 

2. The action is deemed to be a petition for a writ of habeas corpus; and 

3. The Clerk of the Court is directed to serve a copy of these findings and

recommendations together with a copy of the petition filed in the instant case on the Attorney

General of the State of California.

/////

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IT IS HEREBY RECOMMENDED that petitioner's application for a writ of

habeas corpus be dismissed for failure to exhaust state remedies. 

These findings and recommendations will be submitted to the United States

District Judge assigned to this case, under the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, petitioner may file written

objections with the court. The document should be captioned "Objections to Findings and

Recommendations." Petitioner is advised that failure to file objections within the specified

time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153

(9th Cir. 1991).

DATED: May 17, 2005.

______________________________________

UNITED STATES MAGISTRATE JUDGE

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char2616.157

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