The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS (Doc. 52) ) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS
Petitioner is a state prisoner proceeding pro se on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On January 24, 2008, Petitioner filed the instant petition. (Doc. 1). Respondent was originally ordered to file a response to the petition on October 15, 2008. (Doc. 15). Respondent filed a motion to dismiss the petition on February 13, 2009. (Doc. 27). On September 11, 2009, the Court issued Findings and Recommendations to grant the motion to dismiss as to Petitioner's challenge to a 2004 prison disciplinary hearing and to deny the motion to dismiss as to Petitioner's challenge to a 2006 gang validation. (Doc. 30). On March 25, 2010, the District Judge adopted the Findings and Recommendations and dismissed Petitioner's claim regarding the 2004 disciplinary hearing. (Doc. 36). The matter was referred to the Magistrate Judge for further proceedings on the remaining claim.
Petitioner then appealed the dismissal of his claim regarding the 2004 disciplinary hearing to the Ninth Circuit, which, on May 19, 2010, dismissed the appeal for lack of jurisdiction. (Doc. 40). Mandate was issued by the Ninth Circuit on July 20, 2010. (Doc. 42). On July 20, 2010, the Court ordered Respondent to file a response to the remaining claim. (Doc.43). On October 19, 2010, Respondent moved to file a second motion to dismiss as to the remaining claim. (Doc. 47). Along with the motion, Respondent filed a proposed motion to dismiss. (Id., Attach. A). On November 17, 2010, the Court granted Respondent's motion to file a second motion to dismiss and directed the Clerk of the Court to file the proffered motion. (Doc. 51). The Clerk of the Court then filed the motion to dismiss as Document 52. On January 11, 2011, Petitioner filed his opposition to the motion to dismiss. (Doc. 53).
A. Procedural Grounds for Motion to Dismiss
Respondent has filed the instant motion to dismiss the petition for lack of habeas jurisdiction. Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases.
The Ninth Circuit has allowed Respondent's to file a motion to dismiss in lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a Respondent can file a motion to dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12.
In this case, Respondent's motion to dismiss is based on a lack of habeas jurisdiction.
Because Respondent's motion to dismiss is similar in procedural standing to a motion to dismiss for failure to exhaust state remedies or for state procedural default and Respondent has not yet filed a formal answer, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.
B. Lack of Habeas Jurisdiction.
Petitioner was convicted in the Sacramento County Superior Court in 1989 of kidnaping and sentenced to an indeterminate term of life with the possibility of parole. (Doc. 9, Ex. A). Petitioner's Minimum Eligible Parole Date ("MEPD") was February 1996. (Doc. 9, p. 2). On June 7, 2006, Petitioner alleges that he was placed in the SHU without having been found guilty of any prison disciplinary violation, but rather on the basis of five written notes found in the possession of other inmates that indicated that Petitioner was a member of a Mexican prison gang. (Doc. 9, p. 9). On July 26, 2006, Petitioner was "validated" by Respondent as a member of a prison gang, and the period of Petitioner's SHU confinement was extended through June 2012. (Id.). Petitioner attended his fifth parole hearing on January 18, 2007, but was found not suitable for parole. (Doc. 52, Ex. 1).
Petitioner raises three grounds for relief in the first amended petition. First, Petitioner contends that Respondent violated his First, Fourth, Fifth, Eighth, and Fourteenth Amendment constitutional rights by "extending" his SHU incarceration by six years based on an erroneous gang validation, which will result in "meaningless" parole hearings during that time because the BPH never grants parole to an inmate who has been gang validated. Second, Petitioner contends that Respondent's system of gang validation is unconstitutional and arbitrary and capricious. Third, Petitioner contends that federal due process was violated because "some evidence" did not support his gang validation and subsequent parole denial. (Doc. 9).
Respondent's motion to dismiss argues that this Court lacks habeas jurisdiction because the actions complained of, i.e., gang validation and SHU confinement, are not habeas issues per se, nor do they impact the fact or duration of Petitioner's sentence as a "lifer." (Doc. 52). Respondent reasons that SHU inmates still have opportunities to engage in programs that will improve their prospects for parole, and that any negative impact of SHU restrictions is too attenuated to have a direct and certain impact on a prisoner's chances for release on parole. (Id.). For the reasons set forth below, the Court agrees with Respondent and recommends that the petition be dismissed.
1. The Gang Validation And SHU Confinement Did Not Directly Extend
A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the "legality or duration" of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Hill v. McDonough, 547 U.S. 573, 579, 128 S.Ct. 2096 (2006)(challenges to the lawfulness of confinement or to particulars affecting its duration are the province of habeas corpus); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. While the United States Supreme Court has not addressed whether a challenge to a condition of confinement may be brought in habeas corpus, see Docken v. Chase, 393 F.3d 1024, ...