Villacres v. CA CDCR & BPH

          ORDER

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 10, 2016, petitioner submitted the certified request to proceed in forma pauperis, along with the certified trust account statement. (ECF No. 9 at 6-8.)

         Examination of the affidavit reveals petitioner is unable to afford the costs of this action. Accordingly, leave to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).

         Insufficient Pleading

         On April 7, 2016, petitioner filed a document entitled, "Petition for Acceptance of Petition for Writ of Habeas Corpus. (ECF No. 1-1.) Petitioner states that he erroneously submitted his "Notice of Appeal" and "COA" to the Ninth Circuit Court of Appeals, after his petition for writ of habeas corpus was denied by the California Supreme Court. (Id.) Petitioner claims that the Ninth Circuit instructed petitioner to submit his petition directly to the district court for review, and provided a copy of the letter^[2] and his 156 page filing from the circuit.

         The only document addressed to the attention of the Eastern District is petitioner's "Petition for Acceptance . . . ." Petitioner did not file a petition for writ of habeas corpus directed to the Eastern District, and does not identify the proper respondent, or set forth the grounds he seeks to pursue in this court. Moreover, the 156 pages of exhibits are equally unclear. In his April 5, 2016 letter to the Ninth Circuit, petitioner claims he was denied parole on May 30, 2013, that all of his petitions for writs of habeas corpus filed in state court and the Eastern District of California federal court were denied, but that he was granted a new appeal on April 15, 2015, by the Ninth Circuit. However, review of the electronic records for the Ninth Circuit for the last three years reflects only one case: Case No. 15-16022 (9th Cir.), which was petitioner's appeal from his prior habeas, Case No. 2:13-cv-2195 GEB CMK (E.D. Cal.), in which petitioner challenged the 2012 denial of parole. However, Case No. 15-16022 did not grant petitioner a "new appeal." Id. Rather, the Ninth Circuit found that petitioner's May 20, 2015 appeal from a November 12, 2014 order was dismissed for lack of jurisdiction because the order challenged was not final or appealable. Case No. 15-16022 (9th Cir. June 10, 2015) (ECF No. 3). Petitioner did not file an appeal after final judgment was entered in Case No. 2:13-cv-2195 GEB CMK (E.D. Cal. September 18, 2015). Rather, petitioner states that he did not "further litigate his case" because he was told in March of 2015 that he would die from terminal lung cancer in six months or less. (ECF No. 1 at 1.)

         The court is sympathetic to petitioner's plight: he is faced with the prospect that he might die from terminal lung cancer while still incarcerated. However, even though petitioner is terminally ill, he is still required to comply with the pleading requirements of the Federal Rules of Civil Procedure. In order to commence an action, he must file a petition for writ of habeas corpus as required by Rule 3 of the Rules Governing Section 2254 cases. Petitioner must also specify the grounds for relief in his petition. See Rule 2(c), Rules Governing § 2254 Cases. Given that time is of the essence, the undersigned will attempt to provide petitioner guidance in how to craft his pleading.

         First, although it appears he seeks habeas relief, petitioner includes allegations in his exhibits that do not implicate the fact or duration of his confinement. Habeas corpus relief under 28 U.S.C. § 2254 is only available for challenges to the fact or duration of a prisoner's confinement. Petitioner contends that lower California courts failed to address grievance issues and allowed false allegations to stand. (ECF No. 1 at 4.) Petitioner included copies of a grievance he filed, (ECF No. 1 at 11-12), as well as state habeas petitions concerning the denial of authorization to obtain pure nutritional supplements as an alternative treatment for his lung cancer (ECF No. 1 at 37-38; 55-60). However, such claims do not sound in habeas because they do not implicate the fact or duration of petitioner's confinement. If petitioner wishes to challenge the conditions of his present confinement, he must file a civil rights complaint under 42 U.S.C. § 1983.^[3] It appears that petitioner is pursuing some of these claims in a civil rights complaint that is presently pending. Villacres v. CDCR, Case No. 2:16-cv-0305 AC (E.D. Cal.).

         Second, to the extent that petitioner is again^[4] attempting to raise a due process challenge to a 2013, 2014 or 2015 denial of parole, he is reminded of the limited review district courts may perform under Swarthout v. Cooke, 562 U.S. 216 (2011) (per curiam). Such review is limited to whether the prisoner was given the opportunity to be heard and received a statement of the reasons why parole was denied. Id. at 862-63; Miller v. Oregon Bd. of Parole and Post-Prison Supervision, 642 F.3d 711, 716 (9th Cir. 2011) ("The Supreme Court held in Cooke that in the context of parole eligibility decisions the due process right is procedural, and entitles a prisoner to nothing more than a fair hearing and a statement of reasons for a parole board's decision."). This procedural question is "the beginning and the end of" a federal habeas court's inquiry into whether due process has been violated when a state prisoner is denied parole. Cooke, 131 S.Ct. at 862. Here, petitioner argues that at 76 years of age with no criminal history and a near perfect prison programming record, terminal cancer and severe rheumatoid arthritis, he is no longer a danger to society. (ECF No. 1 at 1.) However, such argument implicates the substance of the parole hearing, which this court is barred from considering under Cooke.

         Third, to the extent he is seeking to challenge the denial of his request for compassionate release, petitioner is informed that this court has no authority to order compassionate release. As another magistrate judge in this district opined:

A plea for compassionate release is not one which federal courts, sitting in habeas, or any other situation, are entitled to act upon. "There 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 Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). "[N]either § 2241 nor § 2254 vest this Court with habeas corpus jurisdiction to order a compassionate release." Fox v. Warden Ross Correctional Inst., 2012 WL 3878143, *2 (S.D. Ohio Sept. 6, 2012). California's law authorizing a court to recall a sentence is not mandatory, but only permissive, and contains no language permitting, let alone mandating, a compassionate release. Gonzales v. Marshall, 2008 WL 5115882, *5 (C.D. Cal. Dec.4, 2008), citing Cal. Penal Code § 1170(d).

Tucker v. Department of Corrections, 2013 WL 1091282, *1 (E.D. Cal. Mar.15, 2013) (Findings and Recommendations by Hollows, M.J.), adopted Apr. 25, 2013 (Mendez, D.J.). Claims that prison officials declined to follow this law are not cognizable in federal court. See Ransom v. Adams, 313 Fed.App'x 948, 949 (9th Cir. 2009) (affirming summary dismissal of petitioner's claim that he was entitled to compassionate release under Section 3076(d), because the assertion that state officials failed to follow state law "is not cognizable" in federal court).

         Fourth, petitioner also contends that the denial of his compassionate release request subjects him to a disproportionate sentence. (ECF No. 1 at 4.) Petitioner is serving a 15 year to life sentence, with the possibility of parole, for a second degree murder conviction and a four year weapon enhancement he sustained in Orange County Superior Court in 1991. (ECF No. 1 at 28.)

         A criminal sentence that is "grossly disproportionate" to the crime for which a defendant is convicted may violate the Eighth Amendment. Lockyer v. Andrade, 538 U.S. 63, 72 (2003); Rummel v. Estelle, 445 U.S. 263, 271 (1980). However, outside of the capital punishment context, the Eighth Amendment prohibits only sentences that are extreme and grossly disproportionate to the crime. United States v. Bland, 961 F.2d 123, 129 (9th Cir. 1992) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring)). Such instances are "exceedingly rare" and occur in only "extreme" cases. Lockyer, 538 U.S. at 73; Rummel, 445 U.S. at 272. "A punishment within legislatively mandated guidelines is presumptively valid. ‘Generally, so long as the sentence imposed does not exceed the statutory maximum, it will not be ...