United States District Court, N.D. California
ROBERT G. RUSSELL, AK4805, Petitioner,
ROBERT W. FOX, Warden, Respondent.
ORDER DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS
(ECF NO. 4)
CHARLES R. BREYER United States District Judge
a state prisoner currently incarcerated at the California
Medical Facility in Vacaville, has filed a pro se
petition for a writ of habeas corpus under 28 U.S.C. §
2254 seeking release from state prison pursuant to
Proposition 57. He also seeks leave to proceed in forma
pauperis (IFP) under 28 U.S.C. § 1915.
was convicted by a jury in Santa Cruz County Superior Court
of various offenses arising from a traffic accident in which,
while driving drunk, he struck a pedestrian who was walking
on the road with his wife. Following a bench trial, the court
found that petitioner had six prior strike convictions and
six prior serious felony convictions and, on December 2,
2011, sentenced him to 50 years to life in state prison
pursuant to California's Three Strikes Law.
unsuccessfully appealed, and sought collateral relief from,
his conviction and sentence in the California courts. He also
unsuccessfully sought a federal writ of habeas corpus from
this court invalidating his state conviction and sentence.
Standard of Review
court may entertain a petition 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). It
shall “award the writ or issue an order directing the
respondent to show cause why the writ should not be granted,
unless it appears from the application that the applicant or
person detained is not entitled thereto.” Id.
§ 2243. The petition may be dismissed if it plainly
appears from the face of the petition and any exhibits
attached to it that the petitioner is not entitled to relief.
Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir.
Claims & Analysis
does not challenge his state conviction or sentence, but
rather the denial of a “prisoner release order under
Prop[osition] 57.” ECF No. 1 at 1. He claims that
“non-violent third strikers” like himself are
eligible for parole consideration and release under
Proposition 57, but that the California Department of
Corrections and Rehabilitation (CDCR) continues to exclude
them. Id. He seeks a “prisoner release
order” on that basis from this court. ECF No. 5 at 5.
Proposition 57, approved by voters in November 2016, makes
parole more available for certain felons convicted of
nonviolent crimes. Specifically, Proposition 57 added Article
I, section 32 to the California Constitution. That section
provides, in relevant part, “Parole consideration: Any
person convicted of a nonviolent felony offense and sentenced
to state prison shall be eligible for parole consideration
after completing the full term of his or her primary offense,
” defined for these purposes as “the longest term
of imprisonment imposed by the court for any offense,
excluding the imposition of an enhancement, consecutive
sentence, or alternative sentence.” Cal. Const., art.
I, § 32(a)(1).
57 only provides a prisoner who has completed his base term
with a parole consideration hearing before the California
Board of Parole Hearings (BPH). California state court cases
addressing application of Proposition 57 “uniformly
state that Proposition 57 creates a mechanism for parole
consideration, not a vehicle for resentencing, and does not
entitle [a prisoner] to seek relief in court in the first
instance.” Daniels v. Cal. Dep't of Corr. and
Rehab., No. 1-17-cv-01510-AWI-BAM, 2018 WL 489155, at *3
(E.D. Cal. Jan. 19, 2018); see also Travers v.
California, No. 3:17-cv-06126-SI, 2018 WL 707546, at *2
(N.D. Cal. Feb. 5, 2018) (citing California state court
cases). After all, the plain language of Article I, section
32 provides that a person is eligible for “parole
consideration.” Cal. Const., art. I, § 32(a)(1).
extent petitioner seeks federal habeas relief based on a
claim that he has been improperly denied a prisoner release
order based on Proposition 57, the claim must be dismissed
because the addition of § 32 to Article I of the
California Constitution only resulted in him potentially
becoming “eligible for parole consideration” and
in no way undermines the validity of the 50 years-to-life
sentence he is serving. And to the extent petitioner claims
CDCR is improperly excluding him from parole consideration
under Proposition 57, the claim must be brought in a civil
rights action under 42 U.S.C. § 1983, if it may be
brought in federal court at all.
the law of the circuit, a prisoner's claim which, if
successful, will not necessarily lead to immediate or
speedier release from custody falls outside the “core
of habeas corpus” and must be pursued (if at all) in a
civil rights action under § 1983, rather than in a
habeas action. Nettles v. Grounds, 830 F.3d 922,
931, 934-35 (9th Cir. 2016) (en banc). Here, success on a
claim that CDCR is improperly excluding petitioner from
parole consideration under Proposition 57 would result in
petitioner receiving a parole consideration hearing before
BPH, but not necessarily in his immediate or speedier release
from custody. Petitioner still must be found suitable for
parole before he may be released from state prison. Cf.
id. at 934-35 (habeas not proper remedy to challenge
disciplinary finding where reversal of finding would not
necessarily lead to grant of parole (and consequently
speedier release), because many factors are considered in
decision whether to grant parole and parole could still be
denied if disciplinary finding was reversed). Under
Nettles, petitioner's only potential recourse in
federal court on a claim of improper exclusion from parole