Jeffrey Rendall, Plaintiff-appellant, v. Peter Wilson, Individually and As Governor of the State Ofcalifornia, Defendant-appellee, 112 F.3d 517 (9th Cir. 1997)

MEMORANDUM^** 

Jeffery Rendall, a California State prisoner, appeals pro se the district court's Fed. R. Civ. P. 12(b) (6) dismissal of his 42 U.S.C. § 1983 action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Kruso v. International Tel. & Tel., 872 F.2d 1416, 1421 (9th Cir. 1989), and we affirm in part, vacate in part, and remand.

Rendall requested a declaratory judgment that the California Constitution violates the Equal Protection Clause of the U.S. Constitution because it allows prosecutors to proceed either by information or grand jury indictment.

When a state prisoner challenges the validity of the fact or length of his confinement, his sole federal remedy is a writ of habeas corpus. See Preiser v. Rodrigues, 411 U.S. 475, 490 (1973). Although Rendall asserts that he is not attacking the validity or length of his incarceration, a judgment in his favor would necessarily render his conviction unconstitutional, and therefore, entitle him to an immediate release. Thus, Rendall's claims must be addressed in an habeas petition. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995). Accordingly, we affirm the district court's dismissal of Rendall's 1983 action, but remand for the district court to dismiss without prejudice. See id.

DISMISSED.