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Tilton v. Kernan

United States District Court, E.D. California

May 7, 2018

SCOTT KERNAN, et al., Respondents.



         I. Introduction

         Petitioner is a former state prisoner, on parole, proceeding with a petition for writ of habeas corpus, filed under 28 U.S.C. § 2241. This action is referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). Respondent filed a motion to dismiss this action on the grounds that petitioner failed to state any cognizable federal habeas claims. Petitioner filed an opposition; respondent filed a reply.[1]

         As set forth below, respondent's motion to dismiss should be granted.

         II. Background

         On November 13, 2002, petitioner pled nolo contendere to one count of continuous sexual abuse of a child under age 14. People v. Tilton, No. F042261, 2003 WL 22310463, at *1 (Cal.Ct.App. Oct. 9, 2003). Petitioner was sentenced to an upper state prison term of 16 years; the plea agreement did not include a cap on the prison term. Id. Petitioner states the sentence included a fifteen percent good conduct credit. (ECF No. 1 at 25.)

         Petitioner was released from state prison on parole on April 30, 2016. (ECF No. 1 at 1.)

         Petitioner filed a previous federal petition for writ of habeas corpus challenging his 2002 conviction in Tilton v. Tilton, No. 1:07-cv-1795 LJO TAG (E.D. Cal.). On July 18, 2008, the petition was denied as barred by the one year statute of limitations, 28 U.S.C. § 2244(d)(1).

         Petitioner filed a petition for writ of habeas corpus in the Kern County Superior Court, HC# 15220A, which was denied in a reasoned decision on November 4, 2016. (ECF No. 1 at 93.) The Kern County Superior Court referenced a prior decision issued in KCSC# HC14730A. (ECF No. 1 at 93; see also No. 1 at 83-85.)

         Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Fifth Appellate District, which was denied on February 17, 2017. (ECF No. 1 at 96.)

         Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, which was denied without comment on July 19, 2017. (ECF No. 1 at 6, 98.)

         The instant federal petition was filed on August 21, 2017. (ECF No. 1.)

         III. Section 2241 or 2254?

         Petitioner claims to seek relief under 28 U.S.C. § 2241. Respondent's motion addresses the petition as if it were filed under 28 U.S.C. § 2254.

         State petitioners are limited from seeking relief under 28 U.S.C. § 2241[2] to the extent they may instead seek relief under 28 U.S.C. § 2254.[3] See Greenawalt v. Stewart, 105 F.3d 1287, 1287-88 (9th Cir. 1997) (per curiam). Generally, a petitioner who wishes to challenge the legality of his state conviction or sentence must file a 28 U.S.C. § 2254 petition.

         Because petitioner is on parole, he is “in custody” for purposes of § 2254. See, e.g., Jones v. Cunningham, 371 U.S. 236, 242-43 (1963), Goldyn v. Hayes, 444 F.3d 1062, 1064 n.2 (9th Cir. 2006).

         Here, petitioner states that he does not challenge the underlying conviction, but argues that because his sentence expired, there is no state court judgment imposing petitioner's current imprisonment, so he must proceed under § 2241.

         However, as explained in more detail below, petitioner is mistaken that his sentence has expired. Moreover, the gravamen of the petition is that petitioner is subjected to an unconstitutional parole scheme, essentially arguing that he is in custody in violation of the Constitution. 28 U.S.C. § 2254(a). Although petitioner objects to having to pay for counseling and polygraph testing and registering his address, such objections are in the context of his mistaken belief that he is subject to an unconstitutional parole scheme because his sentence is allegedly expired. Thus, the undersigned construes the instant petition as brought under § 2254. See Thornton v. Cate, 2012 WL 1581002 (S.D. Cal. May 4, 2012) (explaining some courts allow prisoners or parolees to proceed under both § 2254 or § 2241 when challenging the conditions of parole).

         Moreover, although petitioner previously challenged his 2002 conviction, his challenge to the parole term is not barred as second or successive. See Hill v. Alaska, 297 F.3d 895, 899 (9th Cir. 2002) (no second or successive authorization required for parole-related claim because prisoner challenged calculation of parole term, and did not have opportunity to raise it at time he was challenging conviction and sentence in first petition).

         Accordingly, petitioner has not demonstrated that he is precluded from seeking relief under § 2254, and the undersigned construes the petition as filed under 28 U.S.C. § 2254.

         IV. The Petition

         Petitioner contends that on April 30, 2016, he completed his term of incarceration imposed under the Determinate Sentencing Law (“DSL”). Despite the completion of his sentence, petitioner argues that he was subjected to a separate term of imprisonment and punishment by the imposition of the parole scheme enacted by the California legislature, by means of a Bill of Attainder, [4] rendering it unconstitutional. (ECF No. 1 at 23, 28.) Petitioner argues that the parole scheme is unconstitutional because it imposes greater punishment than what the statutory law defining his crime allows; denies petitioner the fundamental right to privacy, equal protection, due process, and therefore is unconstitutional as applied to petitioner. (ECF No. 1 at 28-9.) Petitioner argues that California's parole scheme does not meet the constitutional definition of parole: “[t]he essence of parole is release from prison before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.” Morrissey v. Brewer, 408 U.S. 471, 477-78 (1972) (emphasis added (ECF No. 1 at 37).). Petitioner was sentenced under the DSL, which requires prisoners to serve their complete terms and then also serve a period of parole, which he argues conflicts with the Supreme Court's definition of parole, citing Morrissey. Petitioner argues he is not currently serving a court-imposed sentence. Petitioner also argues that California's parole scheme violates the Double Jeopardy Clause because it subjects petitioner to a second punishment; violates the Takings Clause, because he is required to enroll in a sex-offender counseling program and undertake periodic polygraph tests, both of which he must pay for; violates the Eighth Amendment because the parole conditions impose excessive fines and the parole inflicts cruel and unusual punishment; and violates the Due Process Clause because it denies petitioner the fundamental right to privacy. Petitioner argues that imposing any parole condition, including a requirement that he notify law enforcement of his address, violates the Eighth Amendment. As relief, inter alia, petitioner seeks an order staying enforcement of parole and enjoining respondents from applying and enforcing a term of parole on petitioner, essentially seeking release from parole.

         V. Moti ...

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