The opinion of the court was delivered by: ANTHONY BATTAGLIA, Magistrate Judge
Order Granting in Part and Denying in Part Motion to Dismiss [Doc.
Petitioner Joel Brown, a state prisoner proceeding pro se,
filed a Petition for a Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254 challenging his May 19, 2004 conviction in
Riverside County Superior Court Case No. CR-23726. The Petitioner
is currently serving an indeterminate term of twenty-seven (27)
years to life at Calipatria State Prison for first degree murder.
See Lodgements, Exh. 1. Respondents have filed a Motion to
Dismiss and lodged relevant portions of the state court record.
Petitioner has filed an Opposition. Upon review and for the
reasons set forth herein, it is recommended that Respondents'
Motion to Dismiss be GRANTED IN PART and DENIED IN PART.
On or about July 10, 2003, Petitioner filed a petition for Writ
of Habeas Corpus with Imperial County Superior Court in
California alleging violations similar to those asserted in the
instant petition. [Pet. for Writ, Imperial Sup. Ct., Case No.
W-0459]. On August 8, 2003, the Superior Court of the State of
California in and for the County of Imperial entered an Order
Denying Petition for Writ of Habeas Corpus citing Petitioner's
failure to present any evidence of exhaustion of administrative
remedies, however, recognizing and agreeing with Petitioner's
assessment that the CDC's administrative remedies could not grant relief and noting Petitioner's failure
to state sufficient facts upon which relief by writ could be
granted. [Sup. Ct. of Imperial County, On February 3, 2005, Case
On or about August 19, 2003, Petitioner filed a Petition for
Writ of Habeas Corpus with the California Court of Appeal, Fourth
Appellate District alleging the same Eighth Amendment violations
and alleging that the Imperial County Superior Court had violated
his Due Process rights. [Pet. for Writ, Cal. Ct. of App., Case
No. D042759]. On September 18, 2003, Petitioner's claims were
again denied, with the California Court of Appeal citing failure
to exhaust administrative remedies. [Cal. Ct. of App., September
18, 2003, Case No. W0459]. On October 2, 2003, Petitioner filed a
Petition for Writ of Habeas Corpus with the California Supreme
Court opposing the California Court of Appeal's decision and
laying out similar claims of Eighth Amendment violations and also
alleging that the lower court had violated his Due Process
rights. [Pet. Writ., Sup. Ct. Cal., October 2, 2003, Case No.
S119461]. On May 19, 2004, the California Supreme Court denied
Petitioner's Writ without comment. [Sup. Ct. of Cal., May 19,
2004, Case No. S119461].
On February 3, 2005, Petitioner filed a petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court relying
on facts that were exhausted in the California Supreme Court Case
No. S119461. On February 23, 3005, this Court dismissed the
Petition for failure to satisfy the filing fee requirement and
for failing to identify a cognizable federal habeas claim.
Petitioner was ordered to either pay the filing fee or submit
adequate proof of his inability to pay and was ordered to cure
his pleadings. The Court also ordered Petitioner to file a
separate complaint pursuant to § 1983 if he wished to proceed
with any or all of the civil rights claims set forth in his
habeas petition. Petitioner responded on March 18, 2005, by
filing a motion to proceed in forma pauperis, and rather than
filing an amended petition, Petitioner filed objections to the
Court's February 23, 2005 Order of Dismissal.
On April 8, 2005 the Court entered an order denying
Petitioner's request to proceed in forma pauperis. [Order Deny.
in Form. Paup., U.S. Dist. Ct. South. Dist. of Cal., April 8,
2005, Case No. 05CV0216]. The Court again reiterated that
Petitioner had not clearly defined his claims and that the Court
was unsure as to whether Petitioner meant to assert claims under
28 U.S.C. § 2254 or under 42 U.S.C. § 1983. In addressing the objections raised by Petitioner,
the Court noted two identifiable liberty interests that could
only be restored via a habeas corpus action. First, the Court
noted Petitioner's claim that the CDC's failure to release him
due to overcrowding, a practice common in other states,
constituted a violation of the Equal Protection Clause of the
Fourteenth Amendment. Second, the Court noted Petitioner's claim
that the CDC's restrictions on participation in programs which
allow inmates to earn custody credits that could ultimately
reduce the length of their sentence also raised a liberty
interest. However, the Court noted that these claims were not
sufficiently articulated to satisfy the requirements of Rule 2(c)
of the Rules Governing Section 2254 Cases where the claims
contained only references to prior petitions with the requisite
facts buried in attachments. As such, the Court found the
Petition failed to specify all grounds for relief available to
the petitioner and failed to state the facts supporting each
ground and dismissed the action without prejudice to allow
Petitioner to file an amended petition.
On or about May 23, 2005, Petitioner filed this First Amended
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
[First Amend. Pet. for Writ., U.S. Dist. Ct. South. Dist. of Cal,
Case No. 06CV0216-BTM]. On or about August 24, 2005, Respondent
filed a Motion to Dismiss Petitioner's Writ of Habeas Corpus
arguing that the Petition was barred by procedural default and on
the basis that the Petition fails to raise a cognizable claim
under § 2254.
The procedural default doctrine forecloses review of a state
prisoner's federal habeas claims, if those claims were defaulted
in a state court pursuant to an independent and adequate state
procedural rule. Coleman v. Thompson, 501 U.S. 722, 729-30
(1991). For a state procedural rule to be "independent," the
state law basis for the decision must not be interwoven*fn2
with federal law. Michigan v. Long, 463 U.S. 1032, 1040-41
(1983); Harris v. Reed, 489 U.S. 255, 265 (1989). In order for
a state procedural rule to be "adequate," it "must have been
`firmly established and regularly followed' by the time as of
which it is to be applied." Ford v. Georgia, 498 U.S. 411, 424
(1991) (quoting James v. Kentucky, 466 U.S. 341, 348 (1984)).
In the instant case, the Court must determine whether the state courts were regularly and consistently applying the relevant
procedural default rule "at the time the claim should have been
raised." Fields v. Calderon, 125 F.3d 757, 760 (9th Cir. 1997).
A state procedural bar rule is inadequate to preclude federal
habeas review if the state rule is not consistently applied.
Loveland v. Hatcher, 231 F.3d 640 (9th Cir. 2000) (citing
Moran v. McDaniel, 80 F.3d 1261, 1269 (9th Cir. 1996)); see
also Lambright v. Stewart, 241 F.3d 1201 (9th Cir. 2001). "In
all cases in which a state prisoner has defaulted his federal
claims in state court pursuant to an independent and adequate
state procedural rule, federal habeas review of the claims is
barred unless the prisoner can demonstrate cause for the default
and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims
will result in a fundamental miscarriage of justice." Coleman v.
Thompson, 501 U.S. 722, 750 (1991).
2. Whether a Prisoner Should Proceed under 28 U.S.C. § 2254 or
Under 42 U.S.C. § 1983
The Supreme Court has held that a prisoner may use § 1983 to
challenge the conditions of his confinement, but habeas corpus is
the only avenue for a challenge to the fact or duration of
confinement, at least when the remedy requested would result in
the prisoner's immediate or speedier release from that
confinement. Wilkinson v. Dotson, 125 S.Ct. 1242 (2005). The
Supreme Court sets forth an implied exception to § 1983's
coverage where the claims seek, but not where they simply relate
to, core habeas corpus relief, i.e., where a state prisoner
requests present or future release. Preiser v. Rodriguez,
411 U.S. 475, 499-500 (1973). Section 1983 remains available for
procedural challenges where success in the action would not
necessarily spell immediate or speedier release for the prisoner.
Wolff v. McDonnell, 418 U.S. 539 (1974). However, habeas
remedies do not displace § 1983 actions where success in the
civil rights suit would not necessarily vitiate the legality of
state confinement, which was not previously invalidated. Edwards
v. Balisok, 520 U.S. 641(1997). A prisoner may not use § 1983 to
obtain damages where success would necessarily imply the
unlawfulness of a conviction or sentence, which was not
previously invalidated. Heck v. Humphrey, 512 U.S. 477 (1994).
In the parole context, the divide between habeas and § 1983
civil rights actions, grows ever murkier with respect to the
question of whether a prisoner should proceed pursuant to
28 U.S.C. § 2254 or under 42 U.S.C. § 1983. In Docken v. Chase,
the Ninth Circuit recently held that "when prison inmates seek
only equitable relief in challenging aspects of their parole
review, that, so long as they prevail, could potentially affect the duration of their
confinement, such relief is available under the federal habeas
statute." 393 F.3d 1024, 1031 (9th Cir. 2004) (Emphasis added).
Under Docken, even when, as here, petitioner's claims do not
constitute the kind of "core" challenge contemplated ...