(HC) Major v. Unknown ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MATTHEW B. MAJOR, Case No. 1:21-cv-00166-SAB-HC 12 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF 13 v. HABEAS CORPUS 14 UNKNOWN, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT 15 Respondent. JUDGE 16 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. 19 I. 20 BACKGROUND 21 On January 15, 2021, Petitioner filed the instant petition for writ of habeas corpus in the 22 Sacramento Division of the United States District Court for the Eastern District of California. 23 (ECF No. 1). On February 11, 2021, the petition was transferred to the Fresno Division. (ECF 24 No. 4). 25 In the petition, Petitioner challenges the California Department of Corrections and 26 Rehabilitation’s calculation of Petitioner’s custody credits. (ECF No. 1 at 1).1 Petitioner also 27 alleges that he has been unlawfully housed in the security housing unit (“SHU”) for refusing to 1 submit to COVID-19 testing due to his beliefs as a Jehovah’s witness. Petitioner asserts 2 violations of the First, Eighth, Ninth, and Eleventh Amendment. (ECF No. 1 at 2). 3 On March 4, 2021, the Court ordered Petitioner to show cause why the petition should 4 not be dismissed for failure to exhaust state judicial remedies and failure to state cognizable 5 federal habeas corpus claims. On March 17 and March 26, Petitioner filed declarations, (ECF 6 Nos. 9, 10), which the Court construes as his responses to the order to show cause. 7 II. 8 DISCUSSION 9 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 10 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 11 to file a response, if it “plainly appears from the petition and any attached exhibits that the 12 petitioner is not entitled to relief in the district court.” 13 A. Constitutional Violations Arising From Refusal to Submit to COVID-19 Testing 14 A claim falls within the “core of habeas corpus” when a prisoner challenges “the fact or 15 duration of his confinement” and “seeks either immediate release from that confinement or the 16 shortening of its duration.” Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). The Ninth Circuit 17 has adopted a rule that a “state prisoner’s claim [that] does not lie at ‘the core of habeas corpus’ 18 . . . must be brought, ‘if at all,’ under § 1983.” Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir. 19 2016) (en banc) (quoting Preiser, 411 U.S. at 487; Skinner v. Switzer, 562 U.S. 521, 535 n.13 20 (2011)). Therefore, if “success on [Petitioner]’s claims would not necessarily lead to his 21 immediate or earlier release from confinement, [Petitioner]’s claim does not fall within ‘the core 22 of habeas corpus,’ and he must instead bring his claim under § 1983.” Nettles, 830 F.3d at 935 23 (quoting Skinner, 562 U.S. at 535 n.13). 24 In addition to his claim regarding the alleged miscalculation of custody credits, which is 25 addressed in section II(C), infra, Petitioner alleges that he has been unlawfully housed in the 26 SHU for refusing to submit to COVID-19 testing, in violation of the First, Eighth, Ninth, and 27 Eleventh Amendment. (ECF No. 1 at 2). The Ninth Circuit has “long held that prisoners may not 1 Crawford v. Bell, 599 F.2d 890, 891–92 (9th Cir. 1979)). Accordingly, Petitioner’s claims 2 regarding his refusal to submit to COVID-19 testing are not cognizable in federal habeas corpus. 3 B. Conversion to § 1983 Civil Rights Action 4 “If the complaint is amenable to conversion on its face, meaning that it names the correct 5 defendants and seeks the correct relief, the court may recharacterize the petition so long as it 6 warns the pro se litigant of the consequences of the conversion and provides an opportunity for 7 the litigant to withdraw or amend his or her complaint.” Nettles, 830 F.3d at 936 (quoting Glaus 8 v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005)). The Court notes, however, that habeas corpus 9 and prisoner civil rights actions differ in a variety of respects, such as the proper defendants, 10 filing fees, exhaustion requirements, and restrictions on future filings (e.g., the Prison Litigation 11 Reform Act’s three-strikes rule). Nettles, 830 F.3d at 936 (citing Robinson v. Sherrod, 631 F.3d 12 839, 841 (7th Cir. 2011); Glaus, 408 F.3d at 388). 13 The Court finds that it would be inappropriate to construe the habeas petition as a § 1983 14 complaint. Petitioner does not name any respondent in this matter, and it is unclear who would 15 be the proper defendant in a civil rights action. This conclusion, however, does not preclude 16 Petitioner from pursuing his claims in a properly filed civil action brought pursuant to 42 U.S.C. 17 § 1983. 18 C. Exhaustion of Miscalculation of Credits Claim 19 It appears that Petitioner failed to exhaust his miscalculation of credits claim in the 20 instant petition. A petitioner in state custody who is proceeding with a petition for writ of habeas 21 corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is 22 based on comity to the state court and gives the state court the initial opportunity to correct the 23 state’s alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); 24 Rose v. Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 25 providing the highest state court with a full and fair opportunity to consider each claim before 26 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 27 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 1 In his response to the order to show cause, Petitioner states that he filed a petition for writ 2 | of habeas corpus in the state superior court. (ECF No. 9 at 1). However, as Petitioner has not 3 | sought relief in the California Supreme Court, the Court cannot proceed to the merits of his 4 | claim. 28 U.S.C. § 2254(b)(1). Accordingly, the Court finds that Petitioner’s miscalculation of 5 | credits claim is unexhausted and should be dismissed. 6 Ii. 7 RECOMMENDATION & ORDER 8 Based on the foregoing, the undersigned HEREBY RECOMMENDS that the petition for 9 | writ of habeas corpus be DISMISSED without prejudice. 10 Further, the Clerk of Court is DIRECTED to randomly assign this action to a District 11 | Judge. 12 This Findings and Recommendation is submitted to the United States District Court 13 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 14 | of the Local Rules of Practice for the United States District Court, Eastern District of California. 15 | Within THIRTY (30) days after service of the Findings and Recommendation, Petitioner may 16 | file written objections with the Court and serve a copy on all parties. Such a document should be 17 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 18 | District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 19 | § 636(b)(1)(C). Petitioner is advised that failure to file objections within the specified time may 20 | result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 21 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 73 IT IS SO ORDERED. F- 2 ee 24 | Dated: _ April 30, 2021 _ Of 05 UNITED STATES MAGISTRATE JUDGE 26 27 28