The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS [Doc. 30]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner filed the instant petition for writ of habeas corpus on July 13, 1999. On November 12, 2009, Respondent filed a motion to dismiss. Petitioner filed an opposition on December 23, 2009.
On February 18, 2010, the undersigned issued Findings and Recommendation recommending that Respondent's motion to dismiss the petition be granted, but Petitioner be given leave to file an amended petition.
On May 21, 2010, Petitioner filed objections to the Findings and Recommendation.
On September 28, 2010, Judge Ishii adopted the Findings and Recommendation. Petitioner filed an amended petition on November 8, 2010. Respondent filed a motion to dismiss on March 29, 2011. Petitioner filed an opposition on May 6, 2011, and Respondent filed a reply on May 17, 2011.
I. Procedural Grounds for Motion to Dismiss
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits 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 respondents 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.
II. Failure to State Cognizable Claim
Respondent initially argues that Petitioner's "request for relief is not cognizable as a federal habeas action because providing Montes with any additional credits will not shorten his sentence or ensure his release on parole." (Motion to Dismiss, at 2.) In the alternative, Respondent argues even assuming the claims are cognizable in a federal habeas action, "he failed to allege any facts that could support a federal due process claim." (Id.)
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); 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.
In this case, Petitioner alleges that his due process rights were violated when he was validated as an associate to a prison gang. Petitioner claims that as a result of the gang validation, he was housed in the security housing unit and lost the opportunity to earn credits against his sentence. However, because Petitioner is an indeterminately sentenced ...