(HC) Milo v. Martel, No. 2:2018cv00003 - Document 8 (E.D. Cal. 2018)
Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 5/16/2018 GRANTING petitioner's 2 , 6 request to proceed IFP; and the Clerk shall randomly assign a US District Judge to this action. IT IS RECOMMENDED th at petitioner's 1 application for writ of habeas corpus be dismissed for lack of habeas jurisdiction; and this court decline to issued the certificate of appealability. Assigned and referred to Judge Troy L. Nunley; Objections to F&R due within 21 days. (Yin, K)
Download PDF
<![CDATA[
(HC) Milo v. Martel Doc. 8 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SEMANU MILO, 12 Petitioner, 13 14 No. 2:18-cv-0003 AC P v. ORDER AND FINDINGS AND RECOMMENDATIONS MICHAEL MARTEL, 15 Respondent. 16 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas 17 18 corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. Examination of the in forma pauperis application reveals that petitioner is unable to afford 19 20 the costs of suit. ECF Nos. 2, 5, 6. Accordingly, the application to proceed in forma pauperis 21 will be granted. See 28 U.S.C. § 1915(a). 22 23 I. The Petition Petitioner filed a habeas corpus petition alleging that the state court’s denial of post- 24 conviction DNA testing on the ground that he did not fulfill the requirements of California Penal 25 Code § 1405 was an “abuse of discretion and objectively unreasonable.” EFC No. 1 at 5-17. 26 Rule 4 of the Habeas Rules Governing Section 2254 Cases requires the court to 27 summarily dismiss a habeas petition “[i]f it plainly appears from the petition and any attached 28 exhibits that the petitioner is not entitled to relief in the district court.” A person in custody 1 Dockets.Justia.com 1 pursuant to the judgment of a state court can obtain a federal writ of habeas corpus “only on the 2 ground that he is in custody in violation of the Constitution or laws or treaties of the United 3 States.” 28 U.S.C. § 2254(a). Federal habeas relief is not available “for alleged error in the 4 interpretation or application of state law,” Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 5 1985) (citation omitted); Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (citation omitted), unless 6 “the state court’s finding was so arbitrary or capricious as to constitute an independent due 7 process or Eighth Amendment violation,” Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (citation 8 omitted). 9 Petitioner claims that the state court’s denial of DNA testing on the ground that he was not 10 statutorily eligible was an abuse of discretion and objectively unreasonable because he was 11 qualified to have his motion for DNA testing granted under California Penal Code § 1405. EFC 12 No. 1. Plaintiff’s disagreement with the state court’s application of § 1405 does not state a claim 13 for federal habeas relief, because such relief is not available for alleged errors in the application 14 of state law. Cooke, 562 U.S. at 219. 15 Moreover, even if the denial of post-conviction DNA testing was sufficiently arbitrary or 16 capricious to implicate petitioner’s federal constitutional rights, he still fails to state a cognizable 17 claim for habeas relief. Petitioner relies on the possibility of proving his innocence with DNA 18 testing and his inability to present such potentially exculpatory evidence to a jury as grounds for 19 habeas relief. EFC No. 1. However, “when a prisoner’s claim would not ‘necessarily spell 20 speedier release,’ that claim does not lie at ‘the core of habeas corpus,’” Skinner v. Switzer, 562 21 U.S. 521, 535 n.13 (2011) (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)), and “if a state 22 prisoner’s claim does not lie at ‘the core of habeas corpus,’ it may not be brought in habeas 23 corpus but must be brought, ‘if at all,’ under § 1983,” Nettles v. Grounds, 830 F.3d 922, 931 (9th 24 Cir. 2016) (internal citations omitted). The Supreme Court has held that “a postconviction claim 25 for DNA testing is properly pursued in a §1983 action.” Id. at 525. This is because “[s]uccess in 26 the suit gains for the prisoner only access to the DNA evidence, which may prove exculpatory, 27 inculpatory, or inconclusive. In no event will a judgment that simply orders DNA tests 28 ‘necessarily impl[y] the unlawfulness of the State’s custody.’” Id. (second alteration in original) 2 1 (quoting Wilkinson, 544 U.S. at 81). Accordingly, the court lacks habeas jurisdiction and 2 petitioner’s only option is to bring a claim under §1983 because success in the form of DNA 3 testing would not necessarily imply the invalidity of his conviction and provide speedier release. 4 II. Conversion to a Civil Rights Claim 5 “[A] district court may construe a petition for habeas corpus to plead a cause of action 6 under § 1983 after notifying and obtaining informed consent from the prisoner.” Nettles, 830 7 F.3d at 936. A district court may re-characterize a habeas petition “‘[i]f the complaint is 8 amendable to conversion on its face, meaning that it names the correct defendants and seeks the 9 correct relief.’” Id. (quoting Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005)). However, a 10 prisoner civil rights suit differs from a habeas petition in a variety of respects, such as the proper 11 defendants, type of relief available, filing fees, and restrictions on future filings. Id. (quoting 12 Robinson v. Sherrod, 631 F.3d 839, 841 (7th Cir. 2011)). The exhaustion requirements for filing 13 a prisoner civil rights complaint also differ from those required in a federal habeas action. 14 Furthermore, the Supreme Court has noted that its decision in 15 18 [District Attorney’s Office for Third Judicial District v.] Osborne severely limits the federal action a state prisoner may bring for DNA testing. Osborne rejected the extension of substantive due process to this area, 557 U.S.[ 52, 72], 129 S. Ct.[ 2308,] 2322 [(2009)], and left slim room for the prisoner to show that the governing state law denies him procedural due process, see id., at [70-71], 129 S. Ct., at 2321. 19 Skinner, 562 U.S. at 525. Due to these differences and the disadvantages that re-characterization 20 may have on petitioner’s claims, this court will not re-characterize the petition as a civil rights 21 complaint. However, petitioner is free to file a new complaint under § 1983 if he wishes to do 22 so.1 16 17 23 III. 24 Certificate of Appealability Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must 25 issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A 26 certificate of appealability may issue only “if the applicant has made a substantial showing of the 27 28 1 The court takes no position on whether petitioner may ultimately be able to state a claim for relief under § 1983. 3 1 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the reasons set forth in these 2 findings and recommendations, a substantial showing of the denial of a constitutional right has 3 not been made in this case. Therefore, no certificate of appealability should issue. 4 IV. 5 Plain Language Summary of this Order for a Pro Se Litigant The petition should be dismissed because an erroneous application of state law by a state 6 court does not support federal habeas relief. Even if the denial of your post-conviction motion for 7 DNA testing violated your federal constitutional rights, this court does not have habeas 8 jurisdiction because success on the petition will not necessarily result in you being released 9 sooner. Because of all the differences between a habeas petition and a claim under § 1983 (the 10 civil rights statute), the court will not convert your claims into a request for relief under § 1983. 11 You are free to file a separate complaint under § 1983, but the court does not guarantee that you 12 will be successful. 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. Petitioner is granted leave to proceed in forma pauperis. 15 2. The Clerk of the Court shall randomly assign a United States District Judge to this 16 action. 17 IT IS FURTHER RECOMMENDED that: 18 1. The petitioner’s application for writ of habeas corpus be dismissed for lack of habeas 19 jurisdiction. 20 21 2. This court decline to issue the certificate of appealability referenced in 28 U.S.C. § 2253. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 24 after being served with these findings and recommendations, petitioner may file written 25 objections with the court. Such a document should be captioned “Objections to Magistrate 26 Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections 27 //// 28 //// 4 1 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 2 Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: May 16, 2018 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
