United States District Court, E.D. California
ORDER DISMISSING PETITION FOR LACK OF JURISDICTION (Doc. 1)
ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE ORDERING DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
JENNIFER L. THURSTON, Magistrate Judge.
Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed his written consent to the jurisdiction of the United States Magistrate Judge on November 4, 2014. (Doc. 4).
The instant petition was filed on October 16, 2014.. Petitioner alleges that he is indefinitely confined at Coalinga State Hospital as a sexually violent predator. (Doc. 1, p. 2). However, Petitioner does not challenge either his status as a sexually violent predator or the predicate convictions upon which that status is based. Instead, Petitioner contends that hospital staff have intentionally or through indifference, permitted other inmates to enter Petitioner's room and assault him. (Doc. 1, pp. 3-4). Petitioner acknowledges that he has never presented this claim at any level of state court. The Court also takes judicial notice of the fact that, on numerous occasions in the past, Petitioner has filed petitions in this Court seeking injunctive relief for allegedly unconstitutional prison and hospital conditions.
Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the face of the petition... that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez , 908 F.2d 490 (9th Cir.1990). 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, 93 S.Ct. 1827 (1973); Ramirez v. Galaza , 334 F.3d 850, 859 (9th Cir. 2003)("[H]abeas jurisdiction is absent, and a § 1983 action proper, where a successful challenge to a prison condition will not necessarily shorten the prisoner's sentence"); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases.
The Ninth Circuit has also held that "[h]abeas corpus jurisdiction also exists when a petitioner seeks expungement of a disciplinary finding from his record if expungement is likely to accelerate the prisoner's eligibility for parole." Bostic v. Carlson , 884 F.2d 1267, 1269 (9th Cir. 1989); see also Docken v. Chase , 393 F.3d 1024, 1031 (9th Cir. 2004)("[W]e understand Bostic's use of the term likely' to identify claims with a sufficient nexus to the length of imprisonment so as to implicate, but not fall squarely within, the core' challenges identified by the Preiser Court.")
In contrast to a habeas corpus challenge to the length or duration of confinement, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of 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, as mentioned, Petitioner alleges that hospital staff have been negligent or have actively conspired to permit other detainees to enter his room, resulting in an assault on Petitioner. Although Petitioner does not expressly request any particular relief, he does not in his petition that relief in the form of monetary damages and injunctive relief should be available to him. (Doc. 1, p. 4). At no point in the petition does Petitioner challenge either the fact or duration of his incarceration as a sexually violent predator.
Petitioner is thus challenging the conditions of his confinement, not the fact or duration of that confinement. No relief requested by Petitioner in his petition would affect the fact or duration of Petitioner's sentence. Therefore, Petitioner is not entitled to habeas corpus relief, and this petition must be dismissed. Should Petitioner wish to pursue his claims, Petitioner must do so by way of a civil rights complaint pursuant to 42 U.S.C. § 1983. Thus, the Court must dismiss this petition for lack of jurisdiction.
Moreover, the Court declines to issue a certificate of appealability. A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell , 537 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:
(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings.
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from-
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process ...