(HC) Thomas v. Brown et al, No. 2:2016cv00228 - Document 27 (E.D. Cal. 2018)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 1/24/18 RECOMMENDING that respondent's motion to dismiss 19 be granted. Motion to Dismiss 19 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)
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(HC) Thomas v. Brown et al Doc. 27 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSH THOMAS, 12 Petitioner, 13 14 No. 2:16-cv-0228-JAM-CMK-P vs. FINDINGS AND RECOMMENDATION GOVERNOR BROWN, et al., 15 Respondent. 16 / 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent’s motion to 19 dismiss (Doc. 19) and petitioner’s opposition thereto (Doc. 22). 20 I. 21 Petitioner is challenging a 2015 decision by the Board of Parole Hearings BACKGROUND 22 (“Board”) denying petitioner parole under the Elderly Parole Program. In addition, petitioner 23 apparently is challenging the conditions of his confinement in that the continued overcrowding of 24 the prisons violates his Eighth and Fourteenth Amendment rights. 25 /// 26 /// 1 Dockets.Justia.com 1 II. 2 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to 3 dismiss a petition if it “plainly appears from the petition and any attached exhibits that the 4 petitioner is not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing 5 Section 2254 Cases. The Ninth Circuit has allowed respondents to file a motion to dismiss in 6 lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being 7 in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th 8 Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state 9 remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural MOTION TO DISMISS 10 grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F. Supp. 11 1189, 1194 & n. 12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss 12 after the court orders a response, and the Court should use Rule 4 standards to review the motion. 13 See Hillery, 533 F. Supp. at 1194 & n.12. The petitioner bears the burden of showing that he has 14 exhausted state remedies. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). 15 Respondent brings this motion to dismiss petitioner’s habeas corpus petition for 16 failure to state a cognizable federal claim and for plaintiff’s failure to exhaust his state court 17 remedies.1 Petitioner agues the motion to dismiss should be denied as the respondent is only 18 challenging the procedural posture of his petition not the merits. In addition, petitioner contends 19 he does state a cognizable federal claim, both relating to the denial of parole and the conditions 20 of his confinement, and that the respondents waived an exhaustion defense. 21 22 23 24 25 26 1 As discussed herein, the undersigned finds petitioner fails to state a cognizable federal habeas claim. A full discussion and determination of the exhaustion of state remedies is therefore unnecessary. However, as respondent argues, petitioner failed to raise the claim set forth in his federal habeas petition with the State courts. Petitioner does not contend otherwise; he argues the respondent waived an exhaustion defense by failing to appeal the Three-Judge Court decisions. Petitioner’s contention is not persuasive. Under 28 U.S.C. § 2254(b), the exhaustion of available state remedies is required before claims can be granted by the federal court in a habeas corpus case. See Rose v. Lundy, 455 U.S. 509 (1982). Thus, the petition in this case could also be dismissed as unexhausted. 2 1 In his petition, petitioner states he was convicted of second degree murder, in 2 1982 and was sentenced to 15 years to life (plus two years for use of a weapon). He brings this 3 federal habeas petition on the grounds that the Board failed or refused to comply with the 4 Coleman/Plata actions court orders. He argues the Coleman/Plata court orders require the State 5 to put in place new parole proceedings so that inmates who are 60 years old or older and have 6 served at least 25 years on their sentenced will be referred to the Board to determine suitability 7 for and release on parole. (Pet. at 5). Petitioner argues the State failed to modify the parole 8 determinations to comply withe the court order. Petitioner had a parole hearing in 2015, wherein 9 the Board apparently denied him parole. Petitioner contends he met all of the criteria for release 10 based on the Elderly Parole Program requirements. He is requesting this court “order the Board 11 to provide Petitioner with a fair hearing under the Elderly Parole Program.” (Pet. at 10). 12 The Coleman/Plata actions are consolidated civil rights class actions pending in 13 the United States District Court for the Eastern and Northern Districts of California.2 The 14 Coleman class action concerns the constitutional adequacy of the mental health care provided to 15 CDCR inmates and involves the class of seriously mentally ill persons in California prisons. The 16 Plata class action concerns the constitutional adequacy of CDCR’s inmate medical health care 17 and involves the class of state prisoners with serious medical conditions. The Three-Judge Court 18 presiding over these class actions has issued various orders related to prison overcrowding and 19 has required the State of California to undertake prison population reduction measures. 20 Petitioner contends the Elderly Parole Program is not in compliance with the 21 orders issued by the Coleman/Plata courts. In addition, it appears that petitioner is arguing that if 22 the Board held a parole hearing that was in compliance, he would be granted parole. There are 23 several defects in petitioner’s contentions. First, as the respondent argues, petitioner fails to 24 25 26 2 Plata v. Brown, No. CV 01-1351 JST, a class action pending in the Northern District, and Coleman v. Brown, No. 2:90cv0520 KJM DB, a class action pending in the Eastern District. The Plata and Coleman class actions have been consolidated 3 1 allege a violation of federal law. A writ of habeas corpus is available under 28 U.S.C. § 2254 2 only on the basis of a transgression of federal law binding on the state courts. See Middleton v. 3 Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 4 1983). “The habeas statute unambiguously provides that a federal court may issue the writ to a 5 state prisoner ‘only on the ground that he is in custody in violation of the Constitution or laws or 6 treaties of the United States.’” Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (quoting 28 U.S.C. § 7 2254(a)). Here, petitioner does not contend there has been a violation of a federal law or the 8 Constitutional. Rather, he contends the State is not in compliance with a court order. There is 9 nothing in the federal habeas statute to provide for relief based on a court ruling of any kind. 10 Only a violation of the Constitution or federal law can serve as the basis for the court grating a 11 state prisoner federal habeas relief. Petitioner fails to cite to any authority holding otherwise. 12 His claim that the Board failed to comply with the court orders issued in the Coleman/Plata cases 13 does not provide this court with habeas jurisdiction. 14 In addition, petitioner is requesting this court to order the respondent to hold a 15 parole hearing that is in compliance with the Coleman/Plata case orders relating to the Elderly 16 Parole Program. However, as such an order would not necessarily entitle petitioner to immediate 17 release, the claims are non-cognizable on federal habeas. See Blair v. Martel, 645 F.3d 1151, 18 1157 (9th Cir. 2011) (claims that neither “necessarily imply the invalidity of a conviction” nor 19 “necessarily spell speedier release” are not cognizable on federal habeas (citing Skinner v. 20 Switzer, 131 S.Ct. 1289, 1298–99 & n.13 (2011))). 21 To the extent petitioner argues that the Coleman/Plata case orders create a liberty 22 interest thereby giving this court jurisdiction to hear his petition, the undersigned disagrees. 23 However, even if the court addressed the merits of the petition, the United States Supreme Court 24 has determined “[t]here is no right under the Federal Constitution [for a state prisoner] to be 25 conditionally released [on parole] before the expiration of a valid sentence.” Swarthout v. 26 Cooke, 562 U.S. 216, 220 (2011) (per curiam) (citing Greenholtz v. Inmates of Neb. Penal and 4 1 Correctional Complex, 442 U.S. 1, 7 (1979)). The Supreme Court determined that in cases 2 challenging the denial of parole, the only issue subject to federal habeas review is whether the 3 inmate received the procedural due process protections of notice and an opportunity to be heard. 4 There is no other clearly established federal constitutional right in the context of parole. As 5 petitioner does not allege he was denied notice and an opportunity to be heard, and the federal 6 constitution requires nothing more in the parole context, the petition would be denied. 7 Finally, as to any claim petitioner is attempting to raise in his petition regarding 8 the conditions of his confinement due to the overcrowding of the prisons, such a claim is not 9 cognizable in a habeas action. When a state prisoner challenges the legality of his custody – 10 either the fact of confinement or the duration of confinement – and the relief he seeks is a 11 determination that he is entitled to an earlier or immediate release, such a challenge is cognizable 12 in a petition for a writ of habeas corpus under 28 U.S.C. § 2254. See Preiser v. Rodriguez, 411 13 U.S. 475, 500 (1973); see also Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997); Trimble v. 14 City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (per curiam). Where a prisoner challenges 15 the conditions of confinement, as opposed to the fact or duration of confinement, his remedy lies 16 in a civil rights action under 42 U.S.C. § 1983. See Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th 17 Cir. 1985); see also Skinner v. Switzer, 562 U.S. 521, 535-36, n.13 (2011) (stating that “when a 18 prisoner’s claim would not ‘necessarily spell speedier release,’ that claim does not lie at ‘the core 19 of habeas corpus’ and may be brought, if at all, under § 1983”). Any claim that does not 20 necessarily shorten an inmate’s incarceration, if successful, falls outside the scope of habeas 21 jurisdiction. See Blair v. Martel, 645 F.3d 1151, 1157-58 (9th Cir. 2011). Thus, 28 U.S.C. § 22 2254 cannot be used to challenge the conditions of confinement, and 42 U.S.C. § 1983 cannot be 23 used to challenge the fact or duration of confinement. 24 Therefore, to the extent petitioner is challenging the overcrowded conditions, that 25 claim falls outside the scope of habeas jurisdiction. 26 /// 5 1 2 III. 3 Accordingly, the undersigned finds petitioner fails to state a cognizable federal 4 5 6 CONCLUSION habeas claim. Based on the foregoing, the undersigned recommends respondent’s motion to dismiss (Doc. 19) be granted. 7 These findings and recommendations are submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 9 after being served with these findings and recommendations, any party may file written 10 objections with the court. Responses to objections shall be filed within 14 days after service of 11 objections. Failure to file objections within the specified time may waive the right to appeal. 12 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 15 16 17 DATED: January 24, 2018 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 6
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