United States District Court, E.D. California
ORDER AND FINDINGS & RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
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.
forth below, respondent's motion to dismiss should be
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.)
was released from state prison on parole on April 30, 2016.
(ECF No. 1 at 1.)
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).
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
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.)
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.)
instant federal petition was filed on August 21, 2017. (ECF
Section 2241 or 2254?
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.
petitioners are limited from seeking relief under 28 U.S.C.
§ 2241 to the extent they may instead seek relief
under 28 U.S.C. § 2254. 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.
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).
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.
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).
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).
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.
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,  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.