United States District Court, E.D. California
September 10, 2014
ARTHUR TORLUCCI, Petitioner,
DALE A. DROZD, Magistrate Judge.
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the court will grant petitioner's application to proceed in forma pauperis. See 28 U.S.C. § 1915(a).
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, Rules Governing Section 2254 Cases. See also O'Bremski v. Maass , 915 F.2d 418, 420 (9th Cir. 1990); Gutierrez v. Griggs , 695 F.2d 1195, 1198 (9th Cir. 1983). The Advisory Committee Notes to Rule 8 of the Rules Governing Section 2254 Cases indicate that the court may dismiss a petition for writ of habeas corpus at several stages of a case, including "summary dismissal under Rule 4; a dismissal pursuant to a motion by the respondent; a dismissal after the answer and petition are considered; or a dismissal after consideration of the pleadings and an expanded record."
On July 1, 2014, petitioner commenced this action by filing a petition for writ of habeas corpus. His petition is difficult to decipher, but it is apparent from the allegations of the petition that petitioner does not seek to challenge his state court conviction and sentence. Instead, petitioner complains about a prison official's alleged failure to process his recall of sentence paperwork. According to petitioner, he is medically incapacitated and should be released from confinement pursuant to California Penal Code § 1170. (Pet. Attach. at 3 & 30.)
The court will dismiss the pending petition for failure to state a cognizable claim for relief. As an initial matter, "[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Inmates of Neb. Penal & Corr. Complex , 442 U.S. 1 (1979). Moreover, it is well established that whether the state has misapplied a state sentencing law does not state a cognizable claim for federal habeas corpus review. See Lewis v. Jeffers , 497 U.S. 764, 780 (1990) ("federal habeas corpus relief does not lie for errors of state law"); Souch v. Schaivo , 289 F.3d 616, 623 (9th Cir. 2002) (state law sentencing claims insufficient to merit federal habeas relief); Miller v. Vasquez , 868 F.2d 1116, 118-19 (9th Cir. 1989) (whether state erred in application of state sentencing laws does not state a federal constitutional claim).
Here, petitioner's claim concerns the alleged failure to recall his sentence and release him based on his medical incapacitation pursuant to California Penal Code § 1170. Petitioner's claim, however, is governed by state law and does not implicate any federal constitutional concerns. See Harris v. S.C., No. CV 14-3414-R (MAN), 2014 WL 2611386 at *4 (C.D. Cal. June 11, 2014) (rejecting petitioner's claim that California Department of Corrections and Rehabilitation and state courts misapplied Penal Code § 1170(d) because it "d[id] not implicate any federal constitutional concern rectifiable through a grant of federal habeas relief."); Valles v. Busby, No. CV 14-1360 GAF (JPR), 2014 WL 1614615 at *2-*3 (C.D. Cal. Apr. 21, 2014) (rejecting petitioner's claim that he deserved to be resentenced under Penal Code § 1170 on the grounds that he is medically incapacitated because "California's statutory scheme governing medical-incapacitation release creates no liberty interest in a prisoner seeking such release"). This case is no different than those which resulted in the decisions cited above.
Since this court can discern no manner in which petitioner could cure the defects of his allegations, the court will summarily dismiss the pending petition for writ of habeas corpus.
Petitioner has also filed three separate motions. These motions are also difficult to decipher, but petitioner appears to complain about his conditions of confinement, including his housing assignment, his meal plan, the handling of his incoming and outgoing mail, and his mental health treatment. Plaintiff is advised that these motions are not appropriate for review in a habeas corpus case. A civil rights action, not a habeas corpus proceeding, is the proper mechanism for a prisoner seeking to challenge the conditions of his confinement. 42 U.S.C. § 1983; Badea v. Cox , 931 F.2d 573, 574 (9th Cir. 1991). Accordingly, the court will deny petitioner's motions.
Finally, Rule 11 of the Federal Rules Governing Section 2254 Cases states that "the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability should be granted for any issue that petitioner can demonstrate is "debatable among jurists of reason, '" could be resolved differently by a different court, or is "adequate to deserve encouragement to proceed further.'" Jennings v. Woodford , 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle , 463 U.S. 880, 893 (1983)). For the reasons discussed above, the court finds that petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, the court will not issue a certificate of appealability in this action.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's motion to proceed in forma pauperis (Doc. No. 9) is granted.
2. Petitioner's application for a writ of habeas corpus (Doc. No. 1) is dismissed for failure to state a cognizable claim for relief;
3. Petitioner's motions concerning his conditions of confinement (Doc. Nos. 6, 7 & 8) are denied;
4. The court declines to issue a certificate of appealability; and
5. This action is closed.