United States District Court, E.D. California
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner has consented to the jurisdiction of the United
States Magistrate Judge. (ECF No. 4).
is currently in the custody of the California Department of
Corrections and Rehabilitation (“CDCR”) serving
an imprisonment term of life without the possibility of
parole. (ECF No. 1 at 1). On April 10, 2017, Petitioner filed a
federal petition for writ of habeas corpus, which sought a
parole hearing date and asserted that the CDCR erroneously
dismissed his request for a parole hearing. (ECF No. 1). On
May 4, 2017, the Court found that Petitioner's claim is
not cognizable in federal habeas and granted Petitioner leave
to assert his claims in a civil rights complaint under 42
U.S.C. § 1983. (ECF No. 5).
17, 2017, the Court received Petitioner's notice of
appeal of the Court's order. (ECF No. 6). On May 30,
2017, as the appeal was pending, the Court received an
amended petition for writ of habeas corpus. (ECF No. 9). On
June 15, 2017, the Ninth Circuit dismissed the appeal for
lack of jurisdiction. (ECF No. 12).
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).
amended petition, Petitioner again asserts that the CDCR
erroneously dismissed his request for a parole hearing under
the Elderly Parole Program. (ECF No. 9 at 2-3). Petitioner
seeks consideration for parole suitability. (ECF No. 9 at 8).
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, Petitioner will be required to amend his
pleading to name the proper defendants and to seek the
appropriate relief. The filing fee for § 1983 civil
rights cases is $350, and 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. §
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