-SKO (HC)Rosenthal v. Gonzalez, No. 1:2011cv00164 - Document 9 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition for Writ of Habeas Corpus for Failure to State a Cognizable Claim and to Decline to Issue a Certificate of Appealability; FINDINGS and RECOMMENDATIONS to Direct the Clerk to Mail a Civil Rights Form to Petitioner and to Close the Case signed by Magistrate Judge Sheila K. Oberto on 2/23/2011. Referred to Judge Oliver W. Wanger. Objections to F&R due by 3/29/2011. (Sant Agata, S)
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-SKO (HC)Rosenthal v. Gonzalez Doc. 9 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JULIUS ROSENTHAL, 11 Petitioner, 12 v. 13 F. GONZALEZ, Warden, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 16 1:11-cv—00164-OWW-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS FOR FAILURE TO STATE A COGNIZABLE CLAIM (DOC 1.) AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY FINDINGS AND RECOMMENDATIONS TO DIRECT THE CLERK TO MAIL A CIVIL RIGHTS FORM TO PETITIONER AND TO CLOSE THE CASE 17 Petitioner is a state prisoner who is proceeding pro se and 18 in forma pauperis with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. The matter has been referred to 20 the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 21 Rules 302 and 304. Pending before the Court is the petition, 22 which was filed on January 31, 2011. 23 I. Screening the Petition 24 Rule 4 of the Rules Governing § 2254 Cases in the United 25 States District Courts (Habeas Rules) requires the Court to make 26 a preliminary review of each petition for writ of habeas corpus. 27 The Court must summarily dismiss a petition "[i]f it plainly 28 1 Dockets.Justia.com 1 appears from the petition and any attached exhibits that the 2 petitioner is not entitled to relief in the district court....” 3 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 4 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 5 1990). 6 grounds of relief available to the Petitioner; 2) state the facts 7 supporting each ground; and 3) state the relief requested. 8 Notice pleading is not sufficient; rather, the petition must 9 state facts that point to a real possibility of constitutional Habeas Rule 2(c) requires that a petition 1) specify all 10 error. 11 v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 12 U.S. 63, 75 n. 7 (1977)). 13 Habeas Rule 4, Adv. Comm. Notes, 1976 Adoption; O’Bremski Further, the Court may dismiss a petition for writ of habeas 14 corpus either on its own motion under Rule 4, pursuant to the 15 respondent's motion to dismiss, or after an answer to the 16 petition has been filed. 17 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 18 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 19 II. 20 Because the petition was filed after April 24, 1996, the Conditions of Confinement 21 effective date of the Antiterrorism and Effective Death Penalty 22 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh 23 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 24 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 25 A district court may entertain a petition for a writ of 26 habeas corpus by a person in custody pursuant to the judgment of 27 a state court only on the ground that the custody is in violation 28 of the Constitution, laws, or treaties of the United States. 2 28 1 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 2 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 3 16 (2010) (per curiam). 4 A habeas corpus petition is the correct method for a prisoner 5 to challenge the legality or duration of his confinement. 6 v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v. 7 Rodriguez, 411 U.S. 475, 485 (1973)); Advisory Committee Notes to 8 Habeas Rule 1, 1976 Adoption. 9 Badea In contrast, a civil rights action pursuant to 42 U.S.C. 10 § 1983 is the proper method for a prisoner to challenge the 11 conditions of that confinement. 12 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 13 574; Advisory Committee Notes to Habeas Rule 1, 1976 Adoption. 14 McCarthy v. Bronson, 500 U.S. Petitioner, presently an inmate of the California 15 Correctional Institution at Techachapi, California (CCI), alleges 16 that he suffered violations of his constitutional rights in 17 connection with gang validation procedures in prison occurring on 18 January 16, 2008, that resulted in a finding that Petitioner was 19 associated with the Mexican Mafia Prison Gang and placement of 20 Petitioner in the security housing unit (SHU) for an indefinite 21 period of time. 22 action. 23 of Corrections and Rehabilitation (CDCR) violated his right to 24 due process of law guaranteed by the Fourteenth Amendment because 25 prison staff failed to establish 1) a direct link between 26 Petitioner and a gang associate or member, 2) Petitioner’s 27 current gang activity, and 3) gang activity between Petitioner 28 and a gang associate. (Pet. 1-4.) (Pet. 47-54.) Petitioner alleges eleven causes of He alleges that the California Department (Pet. 4-5.) 3 Petitioner challenges the 1 sufficiency of the evidence that he alleges was relied upon to 2 validate his gang status. 3 violations of his liberty interests without the support of “some 4 evidence,” his protection against vague and overbroad 5 regulations, his right to equal protection of the laws, his First 6 Amendment right to associate with members of one’s own racial 7 group and to engage in legitimate activities without retaliation, 8 and his Eighth Amendment protection against cruel and unusual 9 punishments. (Pet. 4-5, 8) (Pet. 5, 8-9, 54, 36-40.) Petitioner alleges He also relies on 10 inconsistency with state regulatory law, the CDCR’s Department of 11 Operations Manual, and a settlement agreement in another case. 12 (Pet. 9, 12, 14-29.) 13 privileges in the SHU, poor food, and negative effects on his 14 mental health. (Pet. 41-44.) 15 the gang validation, expungement of references to it in the 16 prison’s central file, and return of Petitioner to the general 17 prison population. 18 was prevented from exhausting his administrative remedies within 19 the prison by specified prison staff members, who incorrectly 20 rejected his appeal because of untimeliness. 21 Petitioner complains of the reduction in Petitioner seeks the reversal of (Pet. 10, 56-57.) Petitioner alleges that he (Pet. 30-36.) In this case, Petitioner alleges that he has been housed in 22 the security housing unit as a result of a gang validation 23 finding which Petitioner alleges was unsupported by reliable 24 evidence and was the result of numerous constitutional 25 violations. 26 conditions of his confinement. 27 that point to a real possibility of constitutional error that 28 affected the legality or duration of his confinement. However, Petitioner’s allegations concern only the Petitioner does not allege facts 4 Thus, 1 Petitioner is not entitled to habeas corpus relief. 2 therefore be recommended that the petition be dismissed. 3 It will Should Petitioner wish to pursue his claims, he must do so 4 by way of a civil rights complaint pursuant to 42 U.S.C. § 1983. 5 Thus, it will be recommended that the Clerk be directed to send 6 an appropriate form complaint to Petitioner. 7 III. 8 Unless a circuit justice or judge issues a certificate of 9 Certificate of Appealability appealability, an appeal may not be taken to the court of appeals 10 from the final order in a habeas proceeding in which the 11 detention complained of arises out of process issued by a state 12 court. 13 U.S. 322, 336 (2003). 14 only if the applicant makes a substantial showing of the denial 15 of a constitutional right. 16 petitioner must show that reasonable jurists could debate whether 17 the petition should have been resolved in a different manner or 18 that the issues presented were adequate to deserve encouragement 19 to proceed further. 20 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 21 certificate should issue if the Petitioner shows that jurists of 22 reason would find it debatable whether the petition states a 23 valid claim of the denial of a constitutional right or that 24 jurists of reason would find it debatable whether the district 25 court was correct in any procedural ruling. 26 529 U.S. 473, 483-84 (2000). 27 conducts an overview of the claims in the habeas petition, 28 generally assesses their merits, and determines whether the 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court 5 1 resolution was debatable among jurists of reason or wrong. 2 It is necessary for an applicant to show more than an absence of 3 frivolity or the existence of mere good faith; however, it is not 4 necessary for an applicant to show that the appeal will succeed. 5 Miller-El v. Cockrell, 537 U.S. at 338. 6 A district court must issue or deny a certificate of 7 appealability when it enters a final order adverse to the 8 applicant. Id. 9 Habeas Rule 11(a). Here, because Petitioner’s claims relate only to conditions 10 of confinement, jurists of reason would not find it debatable 11 whether the Court was correct in its ruling. 12 Petitioner has not made a substantial showing of the denial of a 13 constitutional right, and the Court should decline to issue a 14 certificate of appealability. Accordingly, 15 IV. 16 Accordingly, it is RECOMMENDED that: 17 1) The petition for writ of habeas corpus be DISMISSED Recommendations 18 without prejudice to Petitioner’s right to file a civil rights 19 action pursuant to 28 U.S.C. § 1983; and 20 21 22 23 24 2) The Clerk of Court be DIRECTED to close the case because this order terminates the action in its entirety; and 3) The Court DECLINE to issue a certificate of appealability; and 4) The Clerk be DIRECTED to mail to Petitioner a form for 25 filing a civil rights complaint pursuant to 42 U.S.C. § 1983 by a 26 person in custody. 27 These findings and recommendations are submitted to the 28 United States District Court Judge assigned to the case, pursuant 6 1 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 2 the Local Rules of Practice for the United States District Court, 3 Eastern District of California. 4 being served with a copy, any party may file written objections 5 with the Court and serve a copy on all parties. 6 should be captioned “Objections to Magistrate Judge’s Findings 7 and Recommendations.” 8 and filed within fourteen (14) days (plus three (3) days if 9 served by mail) after service of the objections. Within thirty (30) days after Such a document Replies to the objections shall be served The Court will 10 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 11 636 (b)(1)(C). 12 objections within the specified time may waive the right to 13 appeal the District Court’s order. 14 1153 (9th Cir. 1991). The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 15 16 IT IS SO ORDERED. 17 Dated: ie14hj February 23, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 7
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