United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel on a petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. He seeks leave to proceed in forma pauperis.
See 28 U.S.C. § 1915(a). Examination of the in
forma pauperis affidavit reveals that petitioner is unable to
afford the costs of suit. Accordingly, the application for
leave to proceed in forma paupers is granted.
Rule 4 of the Rules Governing Section 2254 Cases, the court
is required to conduct a preliminary review of all petitions
for writ of habeas corpus filed by state prisoners. The court
must summarily dismiss a petition if it “plainly
appears . . . that the petitioner is not entitled to relief .
. . .” The court has conducted the review required
under Rule 4 and concludes that summary dismissal of the
petition is required.
challenges the residency restriction imposed as a condition
of his parole on or around June 30, 2016. ECF No. 1 at
But that challenge is not cognizable under section 2254. A
prisoner's claim which, if successful, would not
necessarily lead to immediate or speedier release falls
outside the “core of habeas corpus” and must be
pursued in an action brought pursuant to 42 U.S.C. §
1983. Nettles v. Grounds, No. 12-16935, 2016 U.S.
App. LEXIS 13573 (9th Cir. July 26, 2016). Because
petitioner's challenge to the residency restriction
imposed as a condition of his parole “will neither
affect the ‘fact or duration' of his parole nor
‘necessarily imply' the invalidity of his
state-court conviction or sentence, ” habeas relief is
not proper. See Thornton v. Brown, 757 F.3d 834, 841
(9th Cir. Cal. 2014).
habeas relief were proper, dismissal would be appropriate on
the ground that petitioner's claims are not
exhausted. A district court may not grant a petition
for a writ of habeas corpus unless “the applicant has
exhausted the remedies available in the courts of the State,
” or unless there is no State corrective process or
“circumstances exist that render such process
ineffective to protect the rights of the applicant.” 28
U.S.C. § 2254(b)(1). A petitioner satisfies the
exhaustion requirement by presenting the “substance of
his federal habeas corpus claim” to the state courts.
Picard v. Connor, 404 U.S. 270, 278 (1971); see
also Duncan v. Henry, 513 U.S. 364, 365 (1995). For a
California prisoner to exhaust, he must present his claims to
the California Supreme Court on appeal in a petition for
review or on post-conviction in a petition for a writ of
habeas corpus. See Carey v. Saffold, 536 U.S. 223,
239-40 (2002) (describing California's habeas corpus
procedure); Gatlin v. Madding, 189 F.3d 882, 888
(9th Cir. 1999) (to exhaust, prisoner must present claims on
appeal to California Supreme Court in a petition for review).
Unless the respondent specifically consents to the court
entertaining unexhausted claims, a petition containing such
claims must be dismissed. See 28 U.S.C. §
2254(b)(3); Picard, 404 U.S. at 275.
the petition identifies a petition filed in the state
superior court as petitioner's only post-conviction
motion or petition for habeas corpus in state court. ECF No.
1 at 6. According to petitioner, “efforts to appeal
[the] denial [of that] petition for writ of habeas corpus
would be futile.” Id. at 5, 9. Petitioner also
explains that he never appealed his convictions. Id.
at 7, 9, 10. Having reviewed the instant petition and its
attachments, it is apparent that petitioner failed to exhaust
state court remedies because his claims have not been
presented to the California Supreme Court. Further, there is
no allegation that state court remedies are no longer
available to petitioner.
these reasons, the petition for a writ of habeas corpus must
be summarily dismissed.
accordance with the above, IT IS HEREBY ORDERED that
petitioner's application for leave to proceed in forma
pauperis (ECF No. 2) is granted.
IT IS HEREBY RECOMMENDED that petitioner's application
for writ of habeas corpus be summarily dismissed.
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within fourteen
days after being served with these findings and
recommendations, any party may file written objections with
the court and serve a copy on all parties. Such a document
should be captioned “Objections to Magistrate
Judge's Findings and Recommendations.” Any reply to
the objections shall be served and filed within fourteen days
after service of the objections. Failure to file objections
within the specified time may waive the right to appeal the
District Court's order. Turner v. Duncan, 158
F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951
F.2d 1153 (9th Cir. 1991). In his objections petitioner may
address whether a certificate of appealability should issue
in the event he files an appeal of the judgment in this case.
See Rule 11, Federal Rules Governing Section 2254
Cases in the United States District Courts (the district
court must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant).
 This challenge may be moot given that
petitioner is no longer on parole, but is confined to state
prison. See Maleng v. Cook, 490 U.S. 488, 490-91
(1989) (28 U.S.C. § 2254(a) requires “that the
habeas petitioner be ‘in custody' under the
conviction or sentence under attack at the time his petition
 For ease of reference, all references
to page numbers in the petition are to those assigned via the