Santos v. Holland et al

Filing 10

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gary S. Austin on 10/23/2012 recommending that action be dismissed. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 11/29/2012. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MATTA J. SANTOS,

1:12-CV-01651 LJO GSA HC

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Petitioner,

FINDINGS AND RECOMMENDATION
REGARDING PETITION FOR WRIT OF
HABEAS CORPUS

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v.
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K. HOLLAND, et al.,

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Respondents.
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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.

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DISCUSSION

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Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review

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of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly

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appears . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 2254 Cases;

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see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.1990). A federal court may only grant a

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petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the

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Constitution . . . ." 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a

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prisoner to challenge “the lawfulness of confinement or to particulars affecting its duration.” Hill v.

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McDonough, 547 U.S. 573, 579 (2006); Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991); Preiser v.

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Rodriguez, 411 U.S. 475, 485 (1973); Advisory Committee Notes to Rule 1 of the Rules Governing

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Section 2254 Cases. In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper

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method for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500

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U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee

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Notes to Rule 1 of the Rules Governing Section 2254 Cases. Additionally, “habeas jurisdiction is

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absent, and a § 1983 action proper, where a successful challenge to a prison condition will not

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necessarily shorten the prisoner's sentence.” Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir.2003).

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In this case, Petitioner claims he has been wrongfully validated as a member of the Mexican
Mafia gang. He alleges that as a result of his gang validation he has been placed in the secured

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housing unit (“SHU”) in violation of his due process rights. He further complains that his placement

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in the SHU will forever bar him from being granted parole.

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Petitioner's claims concern the conditions of his confinement and are not cognizable in

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federal habeas corpus. McCarthy, 500 U.S. at 141-42. Petitioner alleges the length of his sentence is

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indirectly affected because he will always be denied parole since he is in the SHU and because he is

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considered a gang member. First, he does not point to any California regulations precluding parole

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for a SHU inmate, nor is the Court aware of any such authority. Second, Petitioner’s status as a gang

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member is a result of his own actions. Moreover, while gang membership is a factor that may be

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taken into account by the Board of Parole Hearings in its parole determination, it is only one of many

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factors, and all factors must be considered. Cal. Code Regs., tit. 15, § 2402(b). The presence of one

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negative factor does not foreclose a grant of parole. Rather, the ultimate decision is whether the

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inmate will pose an unreasonable risk of danger to society if released. Cal. Code Regs., tit. 15,

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§ 2402(a). Whether or not Petitioner’s present SHU status will have an impact on a future parole

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decision is completely speculative. It may be a negative factor, a non-factor, or one of many factors

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considered. Therefore, it is not known what effect, if any, a grant of relief in this case will have on a

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future parole decision. Accordingly, habeas jurisdiction does not lie in this case. Ramirez, 334 F.3d

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at 859.

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Since Petitioner’s challenges to his classification as a validated gang member concern the
conditions of confinement, he must bring his claims by way of a civil rights complaint pursuant to 42

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U.S.C. § 1983. The instant petition should be dismissed for lack of jurisdiction.

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RECOMMENDATION

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Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for lack
of jurisdiction.

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This Findings and Recommendation is submitted to the Honorable Lawrence J. O’Neill,

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United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule

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304 of the Local Rules of Practice for the United States District Court, Eastern District of California.

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Within thirty (30) days after service of the Findings and Recommendation, Petitioner may file

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written objections with the Court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s ruling

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pursuant to 28 U.S.C. § 636(b)(1)(C). Petitioner is 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 F.2d

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1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
6i0kij

October 23, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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