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BROWN v. RYAN

October 20, 2005.

JOEL BROWN Petitioner,
v.
STUART J. RYAN, Warden-Acting, et al., Respondents.



The opinion of the court was delivered by: ANTHONY BATTAGLIA, Magistrate Judge

Order Granting in Part and Denying in Part Motion to Dismiss [Doc. No. 15]
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.

Procedural History

  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 No. W-0459].*fn1

  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.

  Legal Standard

  1. Procedural Default

  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 ...


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