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Marc Sardella-Lagomarsino v. Gary Swarthout

April 12, 2013

MARC SARDELLA-LAGOMARSINO, PETITIONER,
v.
GARY SWARTHOUT, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges that on September 23, 2011, the Board of Parole Hearings ("BPH") violated his right to due process by denying his September 21, 2011 request for an advanced parole hearing.*fn1

Pending before the court is respondent's motion to dismiss. After carefully considering the record, the undersigned recommends that respondent's motion be granted.

II. Discussion

California Penal Code Section 3041.5 provides that inmates may request that the BPH advance their next parole suitability hearing:

(d)(1) An inmate may request that the board exercise its discretion to advance a hearing set pursuant to paragraph (3) of subdivision (b) to an earlier date, by submitting a written request to the board, with notice, upon request, and a copy to the victim which shall set forth the change in circumstances or new information that establishes a reasonable likelihood that consideration of the public safety does not require the additional period of incarceration of the inmate.

(2) The board shall have sole jurisdiction, after considering the views and interests of the victim to determine whether to grant or deny a written request made pursuant to paragraph (1), and its decision shall be subject to review by a court or magistrate only for a manifest abuse of discretion by the board. The board shall have the power to summarily deny a request that does not comply with the provisions of this subdivision or that does not set forth a change in circumstances or new information as required in paragraph (1) that in the judgment of the board is sufficient to justify the action described in paragraph (4) of subdivision (b).

Cal. Penal Code § 3041.5(d)(1), (2).

Petitioner argues that the BPH improperly denied his request to advance his next parole suitability hearing. (Dkt. 1 at 17.) Petitioner argues that when the BPH found him unsuitable for parole in 2010, it instructed him to stay disciplinary free, earn positive chronos, cooperate with clinical evaluation, etc. (Id. at 19.) Petitioner argues that when he applied for an advanced hearing, he provided the BPH with proof that he had completed several more self-help groups, had positive chronos, had remained disciplinary free, etc. (Id.) Petitioner alleges that the BPH denied his request to advance his hearing because he had provided "no new evidence." (Id. at 21.) Petitioner argues that the BPH wrongly denied his request because he did submit new evidence. (Id. at 22.)

In his opposition to the pending motion, petitioner also argues that the BPH could not have sent his request to the victim, as required by law, because his request was denied only two days after being submitted. (Dkt. No. 17 at 5.)

Respondent first argues that this action should be dismissed because success on petitioner's claim will not necessarily accelerate his release from prison.

Habeas is the "exclusive remedy" for the prisoner who seeks "'immediate or speedier release'" from confinement. Skinner v. Switzer, 131 S. Ct. 1289, 1293 (2011) (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)). "Where the prisoner's claim would not 'necessarily spell speedier release,' however, suit may be brought under § 1983." Skinner, 131 S.Ct. at 1293 (quoting Wilkinson, 544 U.S. at 82).

Although petitioner's ultimate goal is a speedier release from incarceration, the immediate relief sought on this ground is a speedier opportunity to attempt to convince the BPH that he should be released; that is too attenuated from any past finding by the BPH of parole unsuitability for such a claim to sound in habeas. Rather this claim is a challenge to the constitutionality of state procedures for scheduling parole suitability hearings and could properly proceed pursuant to an action under 42 U.S.C. ยง 1983. Skinner v. Switzer, 131 S. Ct. at 1298 ("Success in his suit for DNA testing would not 'necessarily imply' the invalidity of his conviction"); id., citing Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) ("Success ... does not mean immediate release from confinement or a shorter stay in prison" but "at most [a] new eligibility review ...." or "a new parole hearing...."). Moreover, the Supreme Court in Wilkinson expressly noted that a claim seeking "an injunction barring future unconstitutional procedures did not fall within habeas' exclusive domain." Id. at 81. Even earlier, the Ninth Circuit had found that the challenge of inmates to a sex offender treatment program as a violation of, inter alia, ...


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