United States District Court, E.D. California
CHARLES D. VILLACRES, Petitioner,
CA CDCR & BPH, et al.,  Respondents.
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
a state prisoner proceeding pro se, has filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. On
June 10, 2016, petitioner submitted the certified request to
proceed in forma pauperis, along with the certified trust
account statement. (ECF No. 9 at 6-8.)
of the affidavit reveals petitioner is unable to afford the
costs of this action. Accordingly, leave to proceed in forma
pauperis is granted. 28 U.S.C. § 1915(a).
April 7, 2016, petitioner filed a document entitled,
"Petition for Acceptance of Petition for Writ of Habeas
Corpus. (ECF No. 1-1.) Petitioner states that he erroneously
submitted his "Notice of Appeal" and
"COA" to the Ninth Circuit Court of Appeals, after
his petition for writ of habeas corpus was denied by the
California Supreme Court. (Id.) Petitioner claims
that the Ninth Circuit instructed petitioner to submit his
petition directly to the district court for review, and
provided a copy of the letter and his 156 page filing from the
only document addressed to the attention of the Eastern
District is petitioner's "Petition for Acceptance .
. . ." Petitioner did not file a petition for writ of
habeas corpus directed to the Eastern District, and does not
identify the proper respondent, or set forth the grounds he
seeks to pursue in this court. Moreover, the 156 pages of
exhibits are equally unclear. In his April 5, 2016 letter to
the Ninth Circuit, petitioner claims he was denied parole on
May 30, 2013, that all of his petitions for writs of habeas
corpus filed in state court and the Eastern District of
California federal court were denied, but that he was granted
a new appeal on April 15, 2015, by the Ninth Circuit.
However, review of the electronic records for the Ninth
Circuit for the last three years reflects only one case: Case
No. 15-16022 (9th Cir.), which was petitioner's appeal
from his prior habeas, Case No. 2:13-cv-2195 GEB CMK (E.D.
Cal.), in which petitioner challenged the 2012 denial of
parole. However, Case No. 15-16022 did not grant petitioner a
"new appeal." Id. Rather, the Ninth
Circuit found that petitioner's May 20, 2015 appeal from
a November 12, 2014 order was dismissed for lack of
jurisdiction because the order challenged was not final or
appealable. Case No. 15-16022 (9th Cir. June 10, 2015) (ECF
No. 3). Petitioner did not file an appeal after final
judgment was entered in Case No. 2:13-cv-2195 GEB CMK (E.D.
Cal. September 18, 2015). Rather, petitioner states that he
did not "further litigate his case" because he was
told in March of 2015 that he would die from terminal lung
cancer in six months or less. (ECF No. 1 at 1.)
court is sympathetic to petitioner's plight: he is faced
with the prospect that he might die from terminal lung cancer
while still incarcerated. However, even though petitioner is
terminally ill, he is still required to comply with the
pleading requirements of the Federal Rules of Civil
Procedure. In order to commence an action, he must file a
petition for writ of habeas corpus as required by Rule 3 of
the Rules Governing Section 2254 cases. Petitioner must also
specify the grounds for relief in his petition. See
Rule 2(c), Rules Governing § 2254 Cases. Given that time
is of the essence, the undersigned will attempt to provide
petitioner guidance in how to craft his pleading.
although it appears he seeks habeas relief, petitioner
includes allegations in his exhibits that do not implicate
the fact or duration of his confinement. Habeas corpus relief
under 28 U.S.C. § 2254 is only available for challenges
to the fact or duration of a prisoner's confinement.
Petitioner contends that lower California courts failed to
address grievance issues and allowed false allegations to
stand. (ECF No. 1 at 4.) Petitioner included copies of a
grievance he filed, (ECF No. 1 at 11-12), as well as state
habeas petitions concerning the denial of authorization to
obtain pure nutritional supplements as an alternative
treatment for his lung cancer (ECF No. 1 at 37-38; 55-60).
However, such claims do not sound in habeas because they do
not implicate the fact or duration of petitioner's
confinement. If petitioner wishes to challenge the conditions
of his present confinement, he must file a civil rights
complaint under 42 U.S.C. § 1983. It appears that
petitioner is pursuing some of these claims in a civil rights
complaint that is presently pending. Villacres v.
CDCR, Case No. 2:16-cv-0305 AC (E.D. Cal.).
to the extent that petitioner is again attempting to
raise a due process challenge to a 2013, 2014 or 2015 denial
of parole, he is reminded of the limited review district
courts may perform under Swarthout v. Cooke, 562
U.S. 216 (2011) (per curiam). Such review is limited to
whether the prisoner was given the opportunity to be heard
and received a statement of the reasons why parole was
denied. Id. at 862-63; Miller v. Oregon Bd. of
Parole and Post-Prison Supervision, 642 F.3d 711, 716
(9th Cir. 2011) ("The Supreme Court held in Cooke that
in the context of parole eligibility decisions the due
process right is procedural, and entitles a prisoner to
nothing more than a fair hearing and a statement of reasons
for a parole board's decision."). This procedural
question is "the beginning and the end of" a
federal habeas court's inquiry into whether due process
has been violated when a state prisoner is denied parole.
Cooke, 131 S.Ct. at 862. Here, petitioner argues
that at 76 years of age with no criminal history and a near
perfect prison programming record, terminal cancer and severe
rheumatoid arthritis, he is no longer a danger to society.
(ECF No. 1 at 1.) However, such argument implicates the
substance of the parole hearing, which this court is barred
from considering under Cooke.
to the extent he is seeking to challenge the denial of his
request for compassionate release, petitioner is informed
that this court has no authority to order compassionate
release. As another magistrate judge in this district opined:
A plea for compassionate release is not one which federal
courts, sitting in habeas, or any other situation, are
entitled to act upon. "There is no constitutional or
inherent right of a convicted person to be conditionally
released before the expiration of a valid sentence."
Greenholtz v. Inmates of Nebraska Penal and Correctional
Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668
(1979). "[N]either § 2241 nor § 2254 vest this
Court with habeas corpus jurisdiction to order a
compassionate release." Fox v. Warden Ross
Correctional Inst., 2012 WL 3878143, *2 (S.D. Ohio Sept.
6, 2012). California's law authorizing a court to recall
a sentence is not mandatory, but only permissive, and
contains no language permitting, let alone mandating, a
compassionate release. Gonzales v. Marshall, 2008 WL
5115882, *5 (C.D. Cal. Dec.4, 2008), citing Cal. Penal Code
Tucker v. Department of Corrections, 2013 WL
1091282, *1 (E.D. Cal. Mar.15, 2013) (Findings and
Recommendations by Hollows, M.J.), adopted Apr. 25, 2013
(Mendez, D.J.). Claims that prison officials declined to
follow this law are not cognizable in federal court. See
Ransom v. Adams, 313 Fed.App'x 948, 949 (9th Cir.
2009) (affirming summary dismissal of petitioner's claim
that he was entitled to compassionate release under Section
3076(d), because the assertion that state officials failed to
follow state law "is not cognizable" in federal
petitioner also contends that the denial of his compassionate
release request subjects him to a disproportionate sentence.
(ECF No. 1 at 4.) Petitioner is serving a 15 year to life
sentence, with the possibility of parole, for a second degree
murder conviction and a four year weapon enhancement he
sustained in Orange County Superior Court in 1991. (ECF No. 1
criminal sentence that is "grossly
disproportionate" to the crime for which a defendant is
convicted may violate the Eighth Amendment. Lockyer v.
Andrade, 538 U.S. 63, 72 (2003); Rummel v.
Estelle, 445 U.S. 263, 271 (1980). However, outside of
the capital punishment context, the Eighth Amendment
prohibits only sentences that are extreme and grossly
disproportionate to the crime. United States v.
Bland, 961 F.2d 123, 129 (9th Cir. 1992) (quoting
Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)
(Kennedy, J., concurring)). Such instances are
"exceedingly rare" and occur in only
"extreme" cases. Lockyer, 538 U.S. at 73;
Rummel, 445 U.S. at 272. "A punishment within
legislatively mandated guidelines is presumptively valid.
‘Generally, so long as the sentence imposed does not
exceed the statutory maximum, it will not be ...