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Myers v. Lozano

United States District Court, E.D. California

October 21, 2019

CLARENCE MYERS, Petitioner,
v.
JARED LOZANO, Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2017 prison disciplinary violation for possession of a cellular telephone. Presently before the court is petitioner's motion to proceed in forma pauperis (ECF No. 2) and his petition (ECF No. 1) for screening. For the reasons set forth below the court will recommend that the petition be dismissed without leave to amend.

         I. In Forma Pauperis

         Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

         II. Screening Requirement

         The court is required to screen all actions brought by prisoners who seek any form of relief, including habeas relief, from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a habeas petition or portion thereof if the prisoner raises claims that are legally “frivolous or malicious” or fail to state a basis on which habeas relief may be granted. 28 U.S.C. § 1915A(b)(1), (2). This means the court must dismiss a habeas petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief[.]” Rule 4 Governing Section 2254 Cases.

         Rule 11 of the Rules Governing Section 2254 Cases provides that “[t]he Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.” Drawing on the Federal Rules of Civil Procedure, when considering whether a petition presents a claim upon which habeas relief can be granted, the court must accept the allegations of the petition as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and construe the petition in the light most favorable to the petitioner, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Pro se pleadings are held to a less stringent standard than those drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520 (1972), but “[i]t is well-settled that ‘[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.'” Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (quoting James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)). See also Corjasso v. Ayers, 278 F.3d 874, 878 (9th Cir. 2002) (“Pro se habeas petitioners may not be held to the same technical standards as litigants represented by counsel.”); Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“[T]he petitioner is not entitled to the benefit of every conceivable doubt; the court is obligated to draw only reasonable factual inferences in the petitioner's favor.”).

         III. The Petition

         Petitioner alleges that he was accused of being in possession of a cellular telephone (“cell phone”) on April 18, 2017. (ECF No. 1 at 6.) He further states that at the time he was housed in a dormitory with approximately 140 other inmates. He states the cell phone was found in a common area shared by petitioner and three other inmates. Petitioner claims he was issued a Rules Violation Report (RVR) and found guilty in violation of his right to due process. (ECF No. 1 at 4.)

         Petitioner argues that “[e]ven under the some evidence standard, [he] had a right not to be falsely accused, ” the RVR is supposed to be signed by the Reporting Employee, the search team supervisor classified the RVR, the issuing officer also claimed to be the Investigative Employee, petitioner was told to turn over his defense documents only to be later told that they were disposed of, officers denied his witnesses, the RVR hearing was conducted where the Reporting Employee could listen to the testimony, and the appeal was ignored and denied. (ECF No. 1 at 8.) Petitioner seeks to have the guilty finding reversed and vacated. (ECF No. 1 at 10.)

         IV. Analysis

         “Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under . . . 42 U.S.C. § 1983.” Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curium). “Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus, Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); requests for relief turning on circumstances of confinement may be presented in a § 1983 action.” Muhammad, 540 U.S. at 750.

         “[H]abeas jurisdiction is absent, and a § 1983 action is proper, where a successful challenge to a prison condition will not necessarily shorten the prisoner's sentence.” Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003). “[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from illegal custody.” Preiser, 411 U.S. at 484. “[W]hen a prisoner's claim would not ‘necessarily spell speedier release,' that claim does not lie at ‘the core of habeas corpus,' and may be brought, if at all, under § 1983.” Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011) (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)). The “core of habeas corpus” is an attack on “the fact or duration of his confinement, ” in which a prisoner “seeks either immediate release from that confinement or the shortening of its duration.” Preiser, 411 U.S. at 489.

         Petitioner's claim is materially similar to the challenge considered by the Ninth Circuit in Nettles v. Grounds, 830 F.3d 922, 934-35 (9th Cir. 2016) (en banc). In Nettles, a prisoner serving a life sentence with the possibility of parole was found guilty of a disciplinary violation and, as a result, suffered a revocation of thirty days good conduct credits. 830 F.3d at 927. The court found that success on the merits of petitioner's challenged disciplinary proceeding would not necessarily impact the fact or duration of his confinement, and therefore his challenge did not fall within “the core of habeas corpus.” Id. at 931, 934. The court reasoned that “[s]uccess on the merits of Nettles' claim ...


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