(HC) Wilhelm v. People of the State of California ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEVE WILHELM, Case No. 1:20-cv-01659-EPG-HC 12 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF 13 v. HABEAS CORPUS 14 PEOPLE OF THE STATE OF ORDER DIRECTING CLERK OF COURT CALIFORNIA, TO ASSIGN DISTRICT JUDGE AND TO 15 SEND PETITIONER PRISONER CIVIL Respondent. RIGHTS COMPLAINT FORM 16 17 18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. Given that the instant petition is not cognizable in federal habeas 20 corpus, the undersigned recommends that the petition for writ of habeas corpus be dismissed. 21 I. 22 DISCUSSION 23 On November 23, 2020, Petitioner filed the instant petition for writ of habeas corpus, 24 which challenges denial of parole on due process grounds. (ECF No. 1). Rule 4 of the Rules 25 Governing Section 2254 Cases requires preliminary review of a habeas petition and allows a 26 district court to dismiss a petition before the respondent is ordered to file a response, if it “plainly 27 appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” See McFarland v. Scott, 512 U.S. 849, 856 (1994). 1 A. Federal Habeas Corpus Jurisdiction 2 By statute, federal courts “shall entertain an application for a writ of habeas corpus in 3 behalf of a person in custody pursuant to the judgment of a State court only on the ground that he 4 is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 5 § 2254(a). A claim falls within the “core of habeas corpus” when a prisoner challenges “the fact 6 or duration of his confinement” and “seeks either immediate release from that confinement or the 7 shortening of its duration.” Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). The Ninth Circuit 8 has adopted the rule that a “state prisoner’s claim [that] does not lie at ‘the core of habeas 9 corpus’ . . . must be brought, ‘if at all,’ under § 1983.” Nettles v. Grounds, 830 F.3d 922, 934 10 (9th Cir. 2016) (en banc) (quoting Preiser, 411 U.S. at 487; Skinner v. Switzer, 562 U.S. 521, 11 535 n.13 (2011)). Therefore, if “success on [Petitioner]’s claims would not necessarily lead to his 12 immediate or earlier release from confinement, [Petitioner]’s claim does not fall within ‘the core 13 of habeas corpus,’ and he must instead bring his claim under § 1983.” Nettles, 830 F.3d at 935 14 (quoting Skinner, 562 U.S. at 535 n.13). 15 In the petition, Petitioner asserts due process violations in connection with the Board of 16 Parole Hearings’ denial of parole. (ECF No. 1 at 5).1 Petitioner contends that “the Board did not 17 consider his insights into the offense and other relevant factors that demonstrates his suitability 18 for parole, including the stressful circumstances and depression Petitioner experienced leading 19 up to the crime and his good postconviction conduct.” (Id.). Petitioner also argues that the Board 20 relied on mischaracterizations of evidence and conjecture and the state reasons for denial were 21 not supported by evidence rationally indicative of current dangerousness. (Id. at 5–6). 22 The Court finds that success on Petitioner’s claims would not necessarily lead to a grant 23 of parole, but rather a new parole hearing. See Richardson v. Bd. of Prison Hearings, 785 F. 24 App’x 433, 434 (9th Cir. 2019) (holding that petition asserting Eighth and Fourteenth 25 Amendment violations arising from denial of request for early parole would not necessarily 26 result in immediate release from prison but rather entitlement to a new parole hearing). Under 27 California law, the parole board must consider all relevant reliable information in determining 1 suitability for parole and has the authority to deny parole on the basis of any grounds presently 2 available to it. Nettles, 830 F.3d at 935. As success on Petitioner’s claims would not necessarily 3 lead to his immediate or earlier release from confinement, these claims do not fall within “the 4 core of habeas corpus,” and thus, are not cognizable in federal habeas corpus. See Nettles, 830 5 F.3d at 935. Accordingly, Petitioner has failed to state cognizable claims for federal habeas 6 corpus relief with respect to his claims challenging the denial of parole, and dismissal is 7 warranted. 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 that habeas corpus and 14 prisoner civil rights actions differ in a variety of respects, such as the proper defendants, filing 15 fees,2 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). 18 The Court finds that it would be inappropriate to construe the habeas petition as a civil 19 rights complaint under 42 U.S.C. § 1983. Respondent People of the State of California is not the 20 correct defendant in a civil rights action challenging the Board of Parole Hearings’ denial of 21 parole. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“[A] plaintiff must plead that each 22 Government-official defendant, through the official’s own individual actions, has violated the 23 Constitution.”); Krainski v. Nev. ex rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 24 963, 967 (9th Cir. 2010) (internal quotation marks and citations omitted) (“The Eleventh 25 Amendment bars suits against the State or its agencies for all types of relief, absent unequivocal 26 consent by the state. The Eleventh Amendment jurisdictional bar applies regardless of the nature 27 2 The filing fee for § 1983 civil rights cases is $350, and Petitioner is required to pay the full amount by way of deductions from income to Petitioner’s trust account, even if granted in forma pauperis status. See 28 U.S.C. 1 | of relief sought and extends to state instrumentalities and agencies.”). This conclusion, however, 2 | does not preclude Petitioner from pursuing his claims in a properly filed civil action brought 3 | pursuant to 42 U.S.C. § 1983. 4 I. 5 RECOMMENDATION & ORDER 6 Accordingly, the undersigned HEREBY RECOMMENDS that the petition for writ of 7 | habeas corpus be dismissed for lack of jurisdiction. 8 Further, the Clerk of Court is DIRECTED to randomly assign a District Court Judge to 9 | the present matter and to send Petitioner a prisoner civil rights complaint form. 10 This Findings and Recommendation is submitted to the assigned United States District 11 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 12 | Rules of Practice for the United States District Court, Eastern District of California. Within 13 | THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 14 | written objections with the court and serve a copy on all parties. Such a document should be 15 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 16 | United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 17 | U.S.C. § 636(b)(1)(C). Petitioner is advised that failure to file objections within the specified 18 | time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 19 | 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 IT IS SO ORDERED. 22| Dated: _ December 16, 2020 [spe ey 3 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28