Shelton v. California Board of Prison Terms

Filing 11

FINDINGS and RECOMMENDATIONS to Grant Respondent's 9 Motion to Dismiss Petition signed by Magistrate Judge Theresa A. Goldner on 2/6/2009. Motion referred to Judge Anthony W. Ishii, Objections to F&R due by 2/24/2009. (Esteves, C)

1 2 3 4 5 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner is a state prisoner proceeding pro se on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 17, 2008, Petitioner filed his petition for writ of habeas corpus in this Court. (Doc. 1). Petitioner, who, at the time of filing of the petition, was incarcerated in North Kern State Prison, Delano, Wasco, California, as a result of a parole violation, challenges the revocation of parole itself and, more specifically, challenges a purportedly illegal condition of parole restricting his ability to associate with his wife. (Doc. 1, p. 12). On May 23, 2008, the Court ordered Respondent to file a response. (Doc. 4). That same day, Petitioner filed with the Court a notice of change of address to a street address in Oakhurst, California. (Doc. 5). On August 20, 2008, Respondent filed a motion to dismiss the petition, arguing that because Petitioner had completed his revocation period and is once again on parole, the revocation issue is moot, and also that the purportedly illegal condition of parole is not subject to habeas review. (Doc. 9). Petitioner has not filed an opposition to Respondent's motion to dismiss. 1 CALIFORNIA BOARD OF PRISON TERMS, Respondent. v. MICHAEL SHELTON, Petitioner, ) ) ) ) ) ) ) ) ) ) ) ) 1:08-cv-00435-AWI-TAG HC FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS PETITION (Doc. 9) ORDER DIRECTING OBJECTIONS BE FILED WITHIN FIFTEEN DAYS

UNITED STATES DISTRICT COURT

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DISCUSSION A. Procedural Grounds for Motion to Dismiss Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-603 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss after the court orders a response, and the court should use Rule 4 standards to review the motion. In this case, Respondent's motion to dismiss is based on a claim of mootness and failure to state a cognizable habeas claim. Because Respondent's motion is similar in procedural standing to a motion to dismiss for failure to exhaust state remedies or for state procedural default and Respondent has not yet filed a formal answer, the Court will review Respondent's motion pursuant to its authority under Rule 4. B. Mootness The case or controversy requirement of Article III of the Federal Constitution deprives the Court of jurisdiction to hear moot cases. Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 70 104 S. Ct. 373 (1983); N.A.A.C.P., Western Region v. City of Richmond, 743 F.2d 1346, 1352 (9th Cir. 1984). A case becomes moot if the "the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Murphy v. Hunt, 455 U.S. 478, 481, 102 S. Ct. 1181 (1982). The Federal Court is "without power to decide questions that cannot affect the rights of the litigants before them." North Carolina v. Rice, 404 U.S. 244, 246, 92 S. Ct. 402 (1971) (per curiam)(quoting Aetna Life Ins. Co. v. Hayworth, 300 U.S. 227, 240-241, 57 S. Ct. 461 (1937)). 2

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Here, Petitioner's primary objection appears to be to the condition of parole precluding him from associating with his wife. Petitioner's objection to his parole revocation appears to derive from the same complaint, i.e., that the parole board should not have revoked his parole based on his violation of an improper condition of parole, i.e., that he not associate with his wife. The extent to which Petitioner's objections to the parole revocation extends beyond the board's implicit "endorsement" of a condition of parole Petitioner considers illegal is unclear. However, ultimately, it is irrelevant because, having served his revocation and now being once again on parole, the revocation issue is moot. In support of the motion to dismiss, Respondent has submitted documents establishing that Petitioner was placed on parole on May 5, 2008, having completed his period of incarceration related to his purportedly unlawful revocation. (Doc. 9, Exh. A). This documentation is further supported by the notice of change of address filed by Petitioner on May 23, 2008, indicating his change of address from North Kern State Prison to a private address in Oakhurst, California. (Doc. 5). Thus, to the extent that the petition is challenging the parole revocation itself, there is no case or controversy because there is nothing the Court can do at this juncture that would affect the period of incarceration for revocation, Petitioner having already completed that period of incarceration for his parole revocation. Hence, the issue is moot. Iron Arrow, 464 U.S. at 70; N.A.A.C.P., Western Region, 743 F.2d at 1352. C. Failure to State a Cognizable Habeas Claim Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus, and as mentioned, to dismiss the petition if it plainly appears from the face of the petition that the petitioner is not entitled to relief. See Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.1990). A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the "legality or duration" of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991)(quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973)); Advisory Committee Notes to Rule 1 of the Rules 3

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Governing Section 2254 Cases. In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 141-142 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574. Section 2254's custody requirement may be met even though a petitioner is not physically confined. Jones v. Cunningham, 371 U.S. 236, 239-240, 83 S.Ct. 373 (1963). Thus, a petitioner on parole is "in custody" for purposes of § 2254 because the parole restrictions "significantly restrain petitioner's liberty to do those things which in this country free men are entitled to do." Id. at 243. However, in contesting a purportedly illegal condition of parole, Petitioner is not challenging the fact or duration of his parole custody, but is instead, necessarily, challenging a condition under which that parole custody is to be served. Petitioner is thus challenging a condition of his confinement, albeit constructive confinement, not the fact or duration of that confinement. Thus, Petitioner is not entitled to habeas corpus relief, and this petition must be dismissed. Should Petitioner wish to pursue his claims, Petitioner must do so by way of a civil rights complaint pursuant to 42 U.S.C. § 1983. D. State Law Claims Not Entitled to Habeas Review The basic scope of habeas corpus is prescribed by statute. Subsection (c) of Section 2241 of Title 28 of the United States Code provides that habeas corpus shall not extend to a prisoner unless he is "in custody in violation of the Constitution." 28 U.S.C. § 2254(a) states: The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to a 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. (emphasis added). See also Rule 1 to the Rules Governing § 2254 Cases. The Supreme Court

22 has held that "the essence of habeas corpus is an attack by a person in custody upon the legality 23 of that custody . . ." Preiser, 411 U.S. at 484. Furthermore, in order to succeed in a petition 24 pursuant to 28 U.S.C. § 2254, Petitioner must demonstrate that the adjudication of his claims in 25 state court resulted in a decision that was contrary to, or involved an unreasonable application of 26 clearly established Federal law, as determined by the Supreme Court of the United States; or 27 resulted in a decision that was based on an unreasonable determination of the facts in light of the 28 4

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evidence presented in the State court proceeding. Here, Petitioner fails to allege a violation of the federal Constitution in his petition. Petitioner complains of the parole board's application of California law and maintains that the imposition of a condition of parole precluding him from associating with his wife is unlawful under state law. (E.g., Doc. 1, p. 20). However, nowhere in the petition does Petitioner raise a cognizable federal claim grounded in a violation of federal law. "[T]he availability of a claim under state law does not of itself establish that a claim was available under the United States Constitution." Sawyer v. Smith, 497 U.S. 227, 239, 110 S. Ct. 2822 (1990)(quoting Dugger v. Adams, 489 U.S. 401, 409, 109 S. Ct. 1211 (1989)). Further, Petitioner does not allege that the adjudication of his claims in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, . . . or resulted in a decision that was based on an unreasonable determination of the facts . . . ." 28 U.S.C. § 2254. In the absence of a cognizable federal claim, this Court may not review California's application of its own laws. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475 (1991) ("[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions."). For all of the foregoing reasons, the Court will recommend that Respondent's motion to dismiss the petition be granted.1 RECOMMENDATIONS Accordingly, the Court RECOMMENDS that: 1. Respondent's motion to dismiss the petition (Doc. 9), be granted; and 2. The petition for writ of habeas corpus (Doc. 1), be DISMISSED because the petition does not allege grounds that would entitle Petitioner to habeas corpus relief. These Findings and Recommendations are submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of
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R e s p o n d e n t also contends that the petition should be dismissed because of lack of exhaustion. (Doc. 9, p. 5 ) . However, in light of the Court's recommendations that the motion to dismiss be granted on grounds of mootness a n d failure to state a cognizable federal habeas claim, the Court does not find it necessary to address this additional b a s i s for dismissal.

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the Local Rules of Practice for the United States District Court, Eastern District of California. Within fifteen (15) days after being served with a copy, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Report and Recommendation." Petitioner and Respondent are forewarned that no extensions of time to file objections or replies will be granted. The District Judge will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Judge's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED. Dated: February 6, 2009 j6eb3d /s/ Theresa A. Goldner UNITED STATES MAGISTRATE JUDGE

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