Banales v. Ochoa
Filing
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FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus 1 , be DISMISSED for failure to state a claim upon which Habeas Corpus relief can be granted re 1 Petition for Writ of Habeas Corpus;ORDER DIRECTING Clerk of the Court to Assign Case to U.S. District Judge, signed by Magistrate Judge Jennifer L. Thurston on 09/08/2011. (Referred to Judge Ishii) (Objections to F&R due by 10/14/2011) (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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INOCENCIO BANALES,
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Petitioner,
v.
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J. TIM OCHOA, Warden,
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Respondent.
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1:11-cv-01432-JLT HC
FINDINGS AND RECOMMENDATIONS TO
DISMISS PETITION FOR WRIT OF HABEAS
CORPUS; ORDER DIRECTING OBJECTIONS
TO BE FILED WITHIN TWENTY DAYS
ORDER DIRECTING CLERK OF THE COURT
TO ASSIGN CASE TO U. S. DISTRICT
JUDGE
Petitioner is a state prisoner proceeding pro se on a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. On August 15, 2011, Petitioner filed his petition for writ of
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habeas corpus in the United States District Court for the Southern District of California. (Doc.
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1). On August 26, 2011, the case was transferred to this Court. (Doc. 3).
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Petitioner contends that his constitutional rights were violated when Respondent
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“validated” Petitioner as a member of the Mexican Mafia, a prison gang, based solely, according
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to Petitioner, on information derived from an envelope found in the possession of another
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inmate. Respondent’s actions did not result in the loss of any credits that would directly affect
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the length of Petitioner’s sentence. However, without any statutory basis for such an allegation,
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Petitioner alleges that once he has been validated he must serve his entire sentence.
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DISCUSSION
Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary
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review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it
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plainly appears from the face of the petition . . . that the petitioner is not entitled to relief." Rule
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4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490
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(9th Cir.1990). A federal court may only grant a petition for writ of habeas corpus if the
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petitioner can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. §
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2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the “legality
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or duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991), quoting,
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Preiser v. Rodriguez, 411 U.S. 475, 485, 93 S. Ct. 1827 (1973); Ramirez v. Galaza, 334 F.3d
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850, 859 (9th Cir. 2003)(“[H]abeas jurisdiction is absent, and a § 1983 action proper, where a
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successful challenge to a prison condition will not necessarily shorten the prisoner’s sentence.”);
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Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases.
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The Ninth Circuit has also held that “[h]abeas corpus jurisdiction also exists when a
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petitioner seeks expungement of a disciplinary finding from his record if expungement is likely
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to accelerate the prisoner’s eligibility for parole.” Bostic v. Carlson, 884 F.2d 1267, 1269 (9th
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Cir. 1989); see also Docken v. Chase, 393 F. 3d 1024, 1031 (9th Cir. 2004)(“[W]e understand
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Bostic’s use of the term ‘likely’ to identify claims with a sufficient nexus to the length of
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imprisonment so as to implicate, but not fall squarely within, the ‘core’ challenges identified by
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the Preiser Court.”)
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In contrast to a habeas corpus challenge to the length or duration of confinement, a civil
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rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the
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conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser,
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411 U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee Notes to Rule 1 of the Rules
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Governing Section 2254 Cases.
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In this case, Petitioner complains that Respondent violated his constitutional rights by
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improperly “validating” Petitioner as a member of a prison gang. Petitioner does not challenge
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either his underlying conviction or his sentence. Moreover, the process Petitioner has
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challenged, i.e., the prison gang validation process, did not result in the loss of any credits by
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Petitioner, nor, apparently, placement in a restrictive setting such as the Secure Housing Unit.
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The Ninth Circuit, ruling on a case appealed from this Court, has held that such a claim fails to
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invoke this Court’s habeas jurisdiction, citing Preiser and Ramirez. Burton v. Adams, 415 Fed.
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Appx. 816, 817 (9th Cir. 2011)(not selected for official publication).
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Petitioner is thus challenging the conditions of his confinement, not the fact or duration of
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that confinement. Hence, Petitioner is not entitled to habeas corpus relief, and this petition must
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be dismissed. Should Petitioner wish to pursue his claims, Petitioner must do so by way of a
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civil rights complaint pursuant to 42 U.S.C. § 1983.
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ORDER
For the foregoing reasons, it is HEREBY ORDERED that the Clerk of the Court assign
this case to a United States District Judge.
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RECOMMENDATIONS
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For the foregoing reasons, the Court HEREBY RECOMMENDS that the petition for writ
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of habeas corpus (Doc. 1), be DISMISSED for failure to state a claim upon which habeas corpus
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relief can be granted.
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This Findings and Recommendation is submitted to the United States District Court
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Judge assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and
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Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of
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California. Within twenty (20) days after being served with a copy, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the objections
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shall be served and filed within ten (10) court days (plus three days if served by mail) after
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service of the objections. The Court will then review the Magistrate Judge’s ruling pursuant to
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28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951
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F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated: September 8, 2011
9j7khi
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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