United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS THE PETITION (DOC. 12) FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE
BARBARA A. McAULIFFE, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is the Respondent's motion to dismiss the petition, which was filed on August 11, 2014. Petitioner filed opposition on October 9, 2014, and Respondent filed a reply on October 17, 2014.
I. Proceeding by a Motion to Dismiss
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997).
A district court must award a writ of habeas corpus or issue an order to show cause why it should not be granted unless it appears from the application that the applicant is not entitled thereto. 28 U.S.C. § 2243. Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) permits the filing of "an answer, motion, or other response, " and thus it authorizes the filing of a motion in lieu of an answer in response to a petition. Rule 4, Advisory Committee Notes, 1976 Adoption and 2004 Amendments. This gives the Court the flexibility and discretion initially to forego an answer in the interest of screening out frivolous applications and eliminating the burden that would be placed on a respondent by ordering an unnecessary answer. Advisory Committee Notes, 1976 Adoption. Rule 4 confers upon the Court broad discretion to take "other action the judge may order, " including authorizing a respondent to make a motion to dismiss based upon information furnished by respondent, which may show that a petitioner's claims suffer a procedural or jurisdictional infirmity, such as res judicata, failure to exhaust state remedies, or absence of custody. Id.
The Supreme Court has characterized as erroneous the view that a Rule 12(b)(6) motion is appropriate in a habeas corpus proceeding. See, Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 269 n. 14 (1978); but see Lonchar v. Thomas, 517 U.S. 314, 325-26 (1996). However, in light of the broad language of Habeas Rule 4, it has been held in this circuit that motions to dismiss are appropriate in cases that proceed pursuant to 28 U.S.C. § 2254 and present issues of failure to state a colorable claim under federal law, O'Bremski v. Maass, 915 F.2d 418, 420-21 (9th Cir. 1990); procedural default in state court, White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989); and failure to exhaust state court remedies, Hillery v. Pulley, 533 F.Supp. 1189, 1194 n.12 (E.D.Cal. 1982).
Analogously, a motion to dismiss a petition for failure to allege facts entitling a petitioner to relief in a proceeding pursuant to 2254, such as Respondent's motion in the instant case, is appropriate because a federal court is a court of limited jurisdiction with a continuing duty to determine its own subject matter jurisdiction and to dismiss an action where it appears that the Court lacks jurisdiction. Fed.R.Civ.P. 12(h)(3); CSIBI v. Fustos, 670 F.2d 134, 136 n.3 (9th Cir. 1982) (citing City of Kenosha v. Bruno, 412 U.S. 507, 511-512 (1973)); Billingsley v. C.I.R., 868 F.2d 1081, 1085 (9th Cir. 1989).
Accordingly, the Court will consider Respondent's motion pursuant to Habeas Rule 4.
In the petition filed on June 2, 2014, Petitioner alleges that he suffered a denial of due process of law resulting from the failure of the California Department of Corrections and Rehabilitation (CDCR) to permit Petitioner to call witnesses at a prison disciplinary hearing held in 2012 at which Petitioner was found guilty of willfully delaying an officer in the performance of duty by depositing feces in a study cell. Petitioner was sanctioned with a loss of ninety (90) days of custody credit in addition to loss of privileges. (Pet., doc. 1 at 6, 13-26.)
Petitioner is serving an indeterminate sentence of eighteen years to life for second degree murder imposed in 1992 in the Superior Court of the State of California, County of San Diego. (Mot., exh. 1, doc. 12-1, 1-6.) Petitioner reached his minimum eligible parole date (MEPD) on May 21, 2003. (Mot., exh. 5, doc. 12-5, 56-50.) In 2012, California's Board of Parole Hearings (BPH) found that Petitioner was not suitable for parole and denied Petitioner parole consideration for seven years. (Id. at 56.)
III. Likelihood of Effect on Duration of Confinement
Respondent moves to dismiss the petition on the ground that the petition does not implicate the legality or duration of Petitioner's confinement, and thus Petitioner has not stated facts that would entitle him to relief in a proceeding pursuant to 28 U.S.C. § 2254. Respondent argues that because Petitioner is serving an indeterminate life term and has passed his MEPD, any effect of the credit loss on the duration of his confinement is too speculative to warrant proceeding pursuant to 28 U.S.C. § 2254. Petitioner is not challenging the very fact or duration of his physical imprisonment or seeking an immediate or speedier release; thus, his claim lies without the core of this Court's habeas jurisdiction. See Nelson v. Campbell, 541 U.S. 637, 643-46 (2004).
A federal court may only grant a state prisoner's petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution or laws or treaties of the United States." 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 Habeas Rule 1, 1976 Adoption. 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 ...