United States District Court, E.D. California
PETER T. EDELBACHER, Petitioner,
CALIFORNIA BOARD OF PAROLE HEARINGS, Respondent.
FINDINGS AND RECOMMENDATION TO CONVERT PETITION FOR
WRIT OF HABEAS CORPUS TO CIVIL RIGHTS ACTION UNDER 42 U.S.C.
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
is currently in the custody of the California Department of
Corrections and Rehabilitation. On January 10, 2017,
Petitioner filed the instant petition for writ of habeas
corpus in the United States District Court for the Northern
District of California. (ECF No. 1). On May 4, 2017, the
petition was transferred to this Court. (ECF No. 9). In the
petition, Petitioner is challenging the Board of Parole
Hearings (“Board”) denying him consideration for
release under the Elder Parole Program. (ECF No. 1 at
of the Rules Governing Section 2254 Cases requires
preliminary review of a habeas petition and allows a district
court to dismiss a petition before the respondent is ordered
to file a response if it “plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court.”
Federal Habeas Jurisdiction
statute, federal courts “shall entertain an application
for a writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court only on the ground
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 claim falls within the “core of
habeas corpus” when a prisoner challenges “the
fact or duration of his confinement” and “seeks
either immediate release from that confinement or the
shortening of its duration.” Preiser v.
Rodriguez, 411 U.S. 475, 489 (1973). The Ninth Circuit
has adopted a rule that a “state prisoner's claim
[that] does not lie at ‘the core of habeas corpus'
. . . must be brought, ‘if at all, ' under §
1983.” Nettles v. Grounds, 830 F.3d 922, 934
(9th Cir. 2016) (en banc) (quoting Preiser, 411 U.S.
at 487; Skinner v. Switzer, 562 U.S. 521, 535 n.13
(2011)). Therefore, if “success on [Petitioner]'s
claims would not necessarily lead to his immediate or earlier
release from confinement, [Petitioner]'s claim does not
fall within ‘the core of habeas corpus, ' and he
must instead bring his claim under § 1983.”
Nettles, 830 F.3d at 935 (quoting Skinner,
562 U.S at 535 n.13).
Petitioner asserts that the Board improperly denied
Petitioner consideration for release under the Elder Parole
Program and appears to be seeking a court order for the Board
to schedule and hold a parole suitability hearing. (ECF No. 1
at 5, 19). However, success on Petitioner's claim would
not necessarily lead to his immediate or earlier release from
confinement. See Nettles, 830 F.3d at 935 (noting
that under California law, the parole board must consider all
relevant reliable information in determining suitability for
parole and has the authority to deny parole on the basis of
any grounds presently available to it). Based on the
foregoing, Petitioner's claim is not cognizable in
federal habeas corpus.
Conversion to § 1983 Civil Rights Action
may convert his petition to a civil rights action under 42
U.S.C. § 1983. See Nettles, 830 F.3d at 936
(“If the complaint is amenable to conversion on its
face, meaning that it names the correct defendants and seeks
the correct relief, the court may recharacterize the petition
so long as it warns the pro se litigant of the consequences
of the conversion and provides an opportunity for the
litigant to withdraw or amend his or her complaint.”)
(quoting Glaus v. Anderson, 408 F.3d 382, 388 (7th
Cir. 2005)). The Court notes, however, that habeas corpus and
prisoner civil rights actions differ in a variety of
respects, such as the proper defendants, filing fees,
exhaustion requirements, and restrictions on future filings
(e.g., the Prison Litigation Reform Act's three-strikes
rule). Nettles, 830 F.3d at 936 (citing Robinson
v. Sherrod, 631 F.3d 839, 841 (7th Cir. 2011);
Glaus, 408 F.3d at 388).
Petitioner chooses to convert the instant matter to a civil
rights action, the filing fee for § 1983 civil rights
cases is $350. Petitioner is required to pay the full amount
by way of deductions from income to Petitioner's trust
account, even if granted in forma pauperis status.
See 28 U.S.C. § 1915(b)(1).
also may, at his option, voluntarily dismiss his habeas
petition without prejudice to refiling his claims as a §
1983 civil rights action. However, Petitioner is forewarned
that dismissal and refiling may subject Petitioner to a