Jerry Burton v. Adams

FILED NOT FOR PUBLICATION FEB 23 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT JERRY A. BURTON, No. 10-15668 Petitioner - Appellant, D.C. No. 1:09-cv-00354-JLT v. MEMORANDUM * ADAMS, Warden, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of California Jennifer L. Thurston, Magistrate Judge,** Presiding Submitted February 15, 2011 *** Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges. California state prisoner Jerry A. Burton appeals pro se from the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition. We have jurisdiction * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** This case was assigned, by the consent of the parties, to a Magistrate Judge, pursuant to 28 U.S.C. § 636(c)(1). *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). under 28 U.S.C. § 2253,1 and we affirm. Burton contends that the prison disciplinary decision validating him as a gang member and subsequently placing him in the Segregated Housing Unit (SHU) and precluding him from earning credits pursuant to California Penal Code § 2933 violated his constitutional rights. The district court properly dismissed Burton’s petition for lack of jurisdiction. Even if Burton exhausted his state judicial remedies, his petition fails to raise a federally cognizable claim for which habeas relief may be granted. See Preiser v. Rodriguez, 411 U.S. 475, 489 (1973); see also Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003) (“[H]abeas jurisdiction is absent, and a § 1983 action proper, where a successful challenge to a prison condition will not necessarily shorten the prisoner’s sentence.”). AFFIRMED. 1 We certify for appeal, on our own motion, the issue of whether Burton’s habeas petition (1) was exhausted and (2) raised a federally cognizable claim for which habeas relief may be granted. 2 10-15668