(HC) Vann v. Yates, No. 1:2008cv00008 - Document 10 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS to Grant Petitioner's 8 Motion to Dismiss Petition; FINDINGS and RECOMMENDATIONS to Deny Respondent's 7 Motion to Dismiss Petition as Moot; ORDER Directing That Objections be Filed Within Fifteen Days signed by Magistrate Judge Theresa A. Goldner on 2/6/2009. Motion referred to Judge Lawrence J. O'Neill; Objections to F&R due by 2/24/2009. (Esteves, C)
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(HC) Vann v. Yates Doc. 10 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 OLIVER VANN, 10 11 12 13 14 15 ) ) Petitioner, ) ) v. ) ) JAMES A. YATES, Warden, ) ) Respondent. ) ____________________________________) 1:08-cv-00008-LJO-TAG HC FINDINGS AND RECOMMENDATIONS TO GRANT PETITIONER’S MOTION TO DISMISS PETITION (Doc. 8) FINDINGS AND RECOMMENDATIONS TO DENY RESPONDENT’S MOTION TO DISMISS PETITION AS MOOT (Doc. 7) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN FIFTEEN DAYS 16 PROCEDURAL HISTORY 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. The instant federal petition for writ of habeas corpus was filed on 19 January 2, 2008. (Doc. 1). In the petition, Petitioner contends that his due process rights were 20 violated when, on February 14, 2006, while serving three life sentences without the possibility of 21 parole, he was removed from the general prison population and placed in administrative segregation, 22 thus precluding him from earning various work credits and good time credits under California law. . 23 On February 11, 2008, the Court ordered Respondent to file a response. (Doc. 3). On April 24 11, 2008, Respondent filed a motion to dismiss the petition, contending that, because Petitioner was 25 serving three life terms without the possibility of parole, any credit loss would not entitle Petitioner 26 to habeas relief since it would not have any possible effect on the fact or length of his imprisonment. 27 (Doc. 7). Respondent also contended that Petitioner’s claim had not been exhausted in state court 28 1 Dockets.Justia.com 1 but had in fact been dismissed for failure to exhaust administrative remedies. (Id.). On May 2, 2008, 2 Petitioner filed a response to the motion to dismiss, conceding that his status as a life prisoner 3 without the possibility of parole precluded him from habeas relief and requesting that the Court 4 dismiss the petition without prejudice on those grounds. (Doc. 8). However, Petitioner disagrees 5 that he failed to exhaust his administrative remedies, contending that, for various reasons, his 6 attempts to exhaust his claim were thwarted by officials in the state prison system. (Id.). 7 DISCUSSION 8 A. Procedural Grounds for Motion to Dismiss 9 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition 10 if it “plainly appears from the face of the petition and any attached exhibits that the petitioner is not 11 entitled to relief in the district court . . . .” The Ninth Circuit has allowed respondents to file a 12 motion to dismiss in lieu of an answer if the motion attacks the pleadings for failing to exhaust state 13 remedies or being in violation of the state’s procedural rules. See e.g., O’Bremski v. Maass, 915 14 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to 15 exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-603 (9th Cir. 1989) (using Rule 4 as 16 procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 17 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss 18 after the court orders a response, and the court should use Rule 4 standards to review the motion. 2. 19 In this case, Respondent’s motion to dismiss is based on a purported failure by Petitioner to 20 exhaust his state administrative remedies and his failure to state a habeas claim. Because 21 Respondent’s motion is similar in procedural standing to a motion to dismiss for failure to exhaust 22 state remedies or for state procedural default and Respondent has not yet filed a formal answer, the 23 Court will review Respondent’s motion pursuant to its authority under Rule 4. 24 B. The Two Motions to Dismiss 25 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review 26 of each petition for writ of habeas corpus and to dismiss a petition if it plainly appears from the face 27 of the petition that the petitioner is not entitled to relief. Rule 4 of the Rules Governing 2254 Cases; 28 see Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.1990). A federal court may only grant a petition for 2 1 writ of habeas corpus if the petitioner can show that “he is in custody in violation of the Constitution 2 . . . .” 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a prisoner to 3 challenge the “legality or duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 4 1991)( quoting Preiser v. Rodriguez, 411 U.S. 475, 485, 93 S. Ct. 1827 (1973)). 5 Habeas corpus jurisdiction is available for a prisoner’s claim that he has been denied good 6 time credits without due process of law, and for expungement of a disciplinary record if 7 expungement is likely to accelerate the prisoner's eligibility for parole. Bostic v. Carlson, 884 F.2d 8 1267, 1269 (9th Cir.1989); see Preiser, 411 U.S. at 486 (noting that habeas corpus serves to provide 9 a forum for prisoners who claim that they are “being unlawfully subjected to physical restraint”). 10 Here, however, Petitioner concedes that he is serving three life sentences without possibility 11 of parole. (Doc. 8, p. 1). Because Petitioner is not eligible for parole, neither the loss of credits nor 12 the expungement of his prison disciplinary record will have any direct effect on the duration of his 13 sentence. Under California law, a sentence of life imprisonment without the possibility of parole 14 precludes the possibility of release from prison except upon commutation by the Governor. See 15 People v. Whitt, 51 Cal.3d 620, 656-657 (1990). The possibility that a federal determination that the 16 disciplinary process was constitutionally defective might be factor in a decision to commute a 17 prisoner’s sentences is pure speculation. 18 Accordingly, to the extent Petitioner seeks habeas corpus relief to be restored to a status 19 entitled to earn good time and work credits that would reduce his overall sentence, the petition would 20 have to be dismissed for failure to state a claim upon which habeas relief may be afforded because, 21 even if the Court were to restore Petitioner to a status entitling him to earn such credits, that remedy 22 would not affect the “legality or duration” of Petitioner’s confinement. Preiser, 411 U.S. at 485. 23 However, in his response to Respondent’s motion to dismiss, Petitioner has himself requested 24 that the petition be dismissed without prejudice. (Doc. 8, p. 2). Although the request is buried in 25 Petitioner’s response, the Court nevertheless construes the request as a motion to dismiss the petition 26 without prejudice. Subject to other provisions of law, a Petitioner may voluntarily dismiss an action 27 without leave of court before service by the adverse party of an answer or motion for summary 28 judgment. Fed. R. Civ. P. 41(a). Otherwise, an action shall not be dismissed except “upon order of 3 1 the court and upon such terms and conditions as the court deems proper.” Fed. R. Civ. P. 41(a)(2). 2 A motion for voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(2) should 3 be granted unless a defendant can show that it will suffer some plain legal prejudice as a result of the 4 dismissal. Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001); see Stevedoring Services of 5 America v. Armilla International B.V., 889 F.2d 919, 921 (9th Cir. 1989)(the purpose of Rule 6 41(a)(2) is “to permit a plaintiff to dismiss an action without prejudice so long as the defendant will 7 not be prejudiced...or unfairly affected by dismissal.”) “[L]egal prejudice does not result merely 8 because the defendant will be inconvenienced by having to defend in another forum or where a 9 plaintiff would gain a tactical advantage by that dismissal. Smith, 263 F.3d at 976. Rather, legal 10 prejudice is “prejudice to some legal interest, some legal claim, some legal argument.” Id. 11 Here, Respondent filed a responsive pleading, i.e., a motion to dismiss, before Petitioner filed 12 his request for dismissal. No stipulation for dismissal has been filed in this case. Accordingly, the 13 motion to dismiss lies in the discretion of the Court, and the Court should grant Petitioner’s motion 14 unless Respondent will suffer legal prejudice thereby. Smith, 263 F.3d at 975. Certainly, 15 Respondent has already expended effort in this case by filing a detailed motion to dismiss the 16 petition and a reply to Petitioner’s opposition to that motion to dismiss. Nevertheless, Respondent 17 did not oppose Petitioner’s request for voluntary dismissal without prejudice in his reply. The same 18 result would obtain, i.e., dismissal of the petition, regardless of which motion to dismiss were 19 granted. 20 Accordingly, nothing in the record suggests that Respondent would be legally prejudiced 21 should the Court grant Petitioner’s motion to dismiss in lieu of Respondent’s own motion to dismiss. 22 Although Petitioner does not provide great detail for his reasons for dismissal, nothing in the record 23 now before the Court suggests that the dismissal is being sought for improper motives or to gain a 24 tactical advantage. Rather, it appears to the Court that Petitioner has reasonably concluded that 25 Respondent’s motion to dismiss has merit, that a prisoner serving a life term without the possibility 26 of parole is not entitled to habeas relief for being assigned a status that results in a loss of work or 27 good time credits, and, hence, that dismissal without prejudice is his best course at this juncture. 28 /// 4 1 Further, granting Petitioner’s motion to dismiss in lieu of Respondent’s motion would 2 obviate the need for the Court to address the disputed issue of whether Petitioner has fully exhausted 3 his administrative remedies as a predicate to filing the instant petition or the legal effect of the 4 procedural bar imposed by the state court in dismissing Petitioner’s state petition for failure to 5 exhaust administrative remedies. Accordingly, the Court will recommend that Petitioner’s request 6 for dismissal without prejudice be granted, and that Respondent’s motion to dismiss be denied as 7 moot. 8 9 RECOMMENDATIONS Based on the foregoing, the Court HEREBY RECOMMENDS that: 10 1. Petitioner’s motion to dismiss the petition without prejudice (Doc. 8), be GRANTED; and 11 2. Respondent’s motion to dismiss the petition (Doc. 7), be DENIED as MOOT. 12 These Findings and Recommendations are submitted to the United States District Judge 13 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 72-304 14 of the Local Rules of Practice for the United States District Court, Eastern District of California. 15 Within fifteen (15) days after being served with a copy, any party may file written objections with the 16 court and serve a copy on all parties. Such a document should be captioned “Objections to 17 Magistrate Judge’s Findings and Recommendations.” Replies to the objections shall be served and 18 filed within ten (10) court days (plus three days if served by mail) after service of the objections. 19 Petitioner and Respondent are forewarned that no extensions of time to file objections or 20 replies will be granted. The District Judge will then review the Magistrate Judge’s ruling pursuant 21 to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the 22 specified time may waive the right to appeal the District Judge’s order. Martinez v. Ylst, 951 F.2d 23 1153 (9th Cir. 1991). 24 25 IT IS SO ORDERED. 26 Dated: February 6, 2009 j6eb3d /s/ Theresa A. Goldner UNITED STATES MAGISTRATE JUDGE 27 28 5
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