(HC) Vega v. California Board of Parole Hearings ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 FRANCISCO VEGA, JR., Case No. 1:21-cv-01029-EPG-HC 11 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF 12 v. HABEAS CORPUS 13 CALIFORNIA BOARD OF PAROLE ORDER DIRECTING CLERK OF COURT HEARINGS, TO ASSIGN DISTRICT JUDGE AND TO 14 SEND PETITIONER PRISONER CIVIL Respondent. RIGHTS COMPLAINT FORM 15 16 Petitioner Francisco Vega, Jr. is a state prisoner proceeding pro se with a petition for writ 17 of habeas corpus pursuant to 28 U.S.C. § 2254. Given that the instant petition is not cognizable 18 in federal habeas corpus, the undersigned recommends that the petition be dismissed without 19 prejudice to refiling the claims in a properly filed civil action brought pursuant to 42 U.S.C. 20 § 1983. 21 I. 22 BACKGROUND 23 On June 7, 2021, Petitioner filed the instant petition for writ of habeas corpus in the 24 Sacramento Division of the United States District Court for the Eastern District of California. 25 (ECF No. 1). On June 28, 2021, the petition was transferred to the Fresno Division. (ECF Nos. 3, 26 4). In the petition, Petitioner challenges the denial of a youth offender parole suitability hearing. 27 (ECF No. 1 at 5).1 1 II. 2 DISCUSSION 3 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 4 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 5 to file a response, if it “plainly appears from the petition and any attached exhibits that the 6 petitioner is not entitled to relief in the district court.” 7 A. Federal Habeas Corpus Jurisdiction 8 By statute, federal courts “shall entertain an application for a writ of habeas corpus in 9 behalf of a person in custody pursuant to the judgment of a State court only on the ground that he 10 is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 11 § 2254(a). A claim falls within the “core of habeas corpus” when a prisoner challenges “the fact 12 or duration of his confinement” and “seeks either immediate release from that confinement or the 13 shortening of its duration.” Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). The Ninth Circuit 14 has adopted the rule that a “state prisoner’s claim [that] does not lie at ‘the core of habeas 15 corpus’ . . . must be brought, ‘if at all,’ under § 1983.” Nettles v. Grounds, 830 F.3d 922, 934 16 (9th Cir. 2016) (en banc) (quoting Preiser, 411 U.S. at 487; Skinner v. Switzer, 562 U.S. 521, 17 535 n.13 (2011)). Therefore, if “success on [Petitioner]’s claims would not necessarily lead to his 18 immediate or earlier release from confinement, [Petitioner]’s claim does not fall within ‘the core 19 of habeas corpus,’ and he must instead bring his claim under § 1983.” Nettles, 830 F.3d at 935 20 (quoting Skinner, 562 U.S. at 535 n.13). 21 In the petition, Petitioner challenges the decision to deny him a youth offender parole 22 suitability hearing. (ECF No. 1 at 5). The Court finds that success on Petitioner’s claims would 23 not necessarily lead to his immediate or earlier release from confinement. Assuming success on 24 Petitioner’s claims would render Petitioner eligible for a youth offender parole suitability 25 hearing, it would not necessarily lead to a grant of parole because under California law, the 26 parole board must consider all relevant reliable information in determining suitability for parole 27 and has the authority to deny parole on the basis of any grounds presently available to it. See 1 immediate or earlier release from confinement, these claims do not fall within “the core of 2 habeas corpus,” and thus, are not cognizable in federal habeas corpus. See Nettles, 830 F.3d at 3 935. Accordingly, Petitioner has failed to state cognizable claims for federal habeas corpus relief 4 with respect to his claims challenging the denial of a youth offender parole suitability hearing, 5 and dismissal is warranted. 6 B. Conversion to § 1983 Civil Rights Action 7 “If the complaint is amenable to conversion on its face, meaning that it names the correct 8 defendants and seeks the correct relief, the court may recharacterize the petition so long as it 9 warns the pro se litigant of the consequences of the conversion and provides an opportunity for 10 the litigant to withdraw or amend his or her complaint.” Nettles, 830 F.3d at 936 (quoting Glaus 11 v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005)). The Court notes that habeas corpus and 12 prisoner civil rights actions differ in a variety of respects, such as the proper defendants, filing 13 fees, exhaustion requirements, and restrictions on future filings (e.g., the Prison Litigation 14 Reform Act’s three-strikes rule). Nettles, 830 F.3d at 936 (citing Robinson v. Sherrod, 631 F.3d 15 839, 841 (7th Cir. 2011); Glaus, 408 F.3d at 388). 16 Due to these differences and the disadvantages that recharacterization may have on 17 Petitioner’s claims, the undersigned finds that it would be inappropriate to construe the habeas 18 petition as a civil rights complaint under 42 U.S.C. § 1983. The Court notes that Petitioner has 19 not been granted in forma pauperis status. Therefore, Petitioner would be required to pre-pay the 20 $402 fee for civil cases ($350 filing fee plus $52 administrative fee). Even if granted in forma 21 pauperis status, Petitioner is required to pay the $350 filing fee by way of deductions from 22 income to Petitioner’s trust account. See 28 U.S.C. § 1915(b)(1). This conclusion, however, does 23 not preclude Petitioner from pursuing his claims in a properly filed civil action brought pursuant 24 to 42 U.S.C. § 1983. 25 /// 26 /// 27 /// 1 Il. 2 RECOMMENDATION & ORDER 3 Accordingly, the undersigned HEREBY RECOMMENDS that the petition for writ of 4 | habeas corpus be DISMISSED without prejudice to refiling the claims in a properly filed civil 5 | action brought pursuant to 42 U.S.C. § 1983. 6 Further, the Clerk of Court is DIRECTED to randomly assign a District Court Judge to 7 | the present matter and to send Petitioner a prisoner civil rights complaint form. 8 This Findings and Recommendation is submitted to the assigned United States District 9 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 10 | Rules of Practice for the United States District Court, Eastern District of California. Within 11 | THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 12 | written objections with the court and serve a copy on all parties. Such a document should be 13 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 14 | United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 15 | U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 16 | time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 17 | 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 18 19 IT IS SO ORDERED. 20] Dated: _ July 1, 2021 [Jee hey — 1 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28