(HC) Felix v. Nueschid, No. 1:2019cv01280 - Document 11 (E.D. Cal. 2019)

Court Description: FINDINGS and RECOMMENDATIONS recommending that Petitioner be granted leave to convert the petition to a civil rights action under 42:1983 re 1 Petition for Writ of Habeas Corpus ; referred to Judge O'Neill, signed by Magistrate Judge Stanley A. Boone on 10/16/2019. Objections to F&R due by 30-Day Deadline(Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 FABIAN FELIX, 11 Case No. 1:19-cv-01280-SAB-HC Petitioner, 12 FINDINGS AND RECOMMENDATION TO GRANT PETITIONER LEAVE TO CONVERT HABEAS PETITION TO CIVIL RIGHTS ACTION UNDER 42 U.S.C. § 1983 v. 13 ROBERT NUESCHID, 14 ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE Respondent. 15 16 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 17 18 pursuant to 28 U.S.C. § 2254. 19 I. 20 BACKGROUND Petitioner is currently in the custody of the California Department of Corrections and 21 22 Rehabilitation serving an indeterminate sentence of fifty years to life for first-degree murder. 1 23 (ECF No. 1 at 10). On September 3, 2019, Petitioner filed the instant petition for writ of habeas 24 corpus in the United States District Court for the Central District of California. (ECF No. 1). On 25 September 13, 2019, the United States District Court for the Central District of California 26 transferred the petition to this Court. (ECF No. 4). 27 /// 28 1 Page numbers refer to the ECF page numbers stamped at the top of the page. 1 1 In the petition, Petitioner challenges a prison disciplinary proceeding in which he was 2 found guilty of distribution of a controlled substance and penalized with a 180-day loss of 3 custody credit, mandatory Narcotics Anonymous attendance, and revocation of various other 4 privileges. (ECF No. 1 at 11). Petitioner asserts the following claims for relief: (1) insufficient 5 evidence to support the finding of guilt; and (2) violation of Petitioner’s right to call witnesses. 6 (ECF No. 1 at 5). 7 II. 8 DISCUSSION 9 10 A. Federal Habeas Jurisdiction By statute, federal courts “shall entertain an application for a writ of habeas corpus in 11 behalf of a person in custody pursuant to the judgment of a State court only on the ground that he 12 is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 13 § 2254(a). A claim falls within the “core of habeas corpus” when a prisoner challenges “the fact 14 or duration of his confinement” and “seeks either immediate release from that confinement or the 15 shortening of its duration.” Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). The Ninth Circuit 16 has adopted a rule that a “state prisoner’s claim [that] does not lie at ‘the core of habeas corpus’ 17 . . . must be brought, ‘if at all,’ under § 1983.” Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir. 18 2016) (en banc) (quoting Preiser, 411 U.S. at 487; Skinner v. Switzer, 562 U.S. 521, 535 n.13 19 (2011)). Therefore, if “success on [Petitioner]’s claims would not necessarily lead to his 20 immediate or earlier release from confinement, [Petitioner]’s claim does not fall within ‘the core 21 of habeas corpus,’ and he must instead bring his claim under § 1983.” Nettles, 830 F.3d at 935 22 (quoting Skinner, 562 U.S. at 535 n.13). 23 Here, Petitioner challenges a prison disciplinary proceeding in which he was found guilty 24 and was penalized with a 180-day loss of custody credit. However, Petitioner is serving an 25 indeterminate sentence, and thus, success on Petitioner’s claims would not necessarily lead to his 26 immediate or earlier release from confinement because expungement of the challenged 27 disciplinary violation and restoration of any lost credits would not necessarily lead to a grant of 28 parole. See Nettles, 830 F.3d at 935 (noting that under California law, the parole board must 2 1 consider all relevant reliable information in determining suitability for parole and has the 2 authority to deny parole on the basis of any grounds presently available to it). Moreover, because 3 Petitioner was convicted of first-degree murder, he is not entitled to accrue credits against his 4 sentence. See Patkins v. Holland, 691 F. App’x 494, 494 (9th Cir. 2017) (citing Cal. Penal Code 5 § 2933.2). Based on the foregoing, the Court finds that Petitioner’s claims are not cognizable in 6 7 federal habeas corpus. 8 B. Conversion to § 1983 Civil Rights Action 9 “If the complaint is amenable to conversion on its face, meaning that it names the correct 10 defendants and seeks the correct relief, the court may recharacterize the petition so long as it 11 warns the pro se litigant of the consequences of the conversion and provides an opportunity for 12 the litigant to withdraw or amend his or her complaint.” Nettles, 830 F.3d at 936 (quoting Glaus 13 v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005)). The Court notes, however, that habeas corpus 14 and prisoner civil rights actions differ in a variety of respects, such as the proper defendants, 15 filing fees, exhaustion requirements, and restrictions on future filings (e.g., the Prison Litigation 16 Reform Act’s three-strikes rule). Nettles, 830 F.3d at 936 (citing Robinson v. Sherrod, 631 F.3d 17 839, 841 (7th Cir. 2011); Glaus, 408 F.3d at 388). If Petitioner chooses to convert the instant matter to a civil rights action, the filing fee for 18 19 § 1983 civil rights cases is $350. Petitioner is required to pay the full amount by way of 20 deductions from income to Petitioner’s trust account, even if granted in forma pauperis status. 21 See 28 U.S.C. § 1915(b)(1).2 Petitioner also may, at his option, voluntarily dismiss his habeas petition without 22 23 prejudice to refiling his claims as a § 1983 civil rights action. However, Petitioner is forewarned 24 that dismissal and refiling may subject Petitioner to a possible statute of limitations bar as well as 25 other complications as set forth above. 26 /// 27 /// 28 2 The Court notes that Petitioner has been authorized to proceed in forma pauperis in this case. (ECF No. 7). 3 1 III. 2 RECOMMENDATION & ORDER Based on the foregoing, the undersigned HEREBY RECOMMENDS that Petitioner be 3 4 granted leave to convert the petition to a civil rights action under 42 U.S.C. § 1983. Further, the Clerk of Court is DIRECTED to randomly assign this action to a District 5 6 Judge. This Findings and Recommendation is submitted to the United States District Court 7 8 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 9 of the Local Rules of Practice for the United States District Court, Eastern District of California. 10 Within THIRTY (30) days after service of the Findings and Recommendation, Petitioner may 11 file written objections with the Court and serve a copy on all parties. Such a document should be 12 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 13 District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 14 § 636(b)(1)(C). Petitioner is advised that failure to file objections within the specified time may 15 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 16 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 18 IT IS SO ORDERED. 19 Dated: October 16, 2019 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 4

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