Vera v. Gipson

Filing 7

FINDINGS and RECOMMENDATIONS to Dismiss Petitioner's First through Fourth Claims Without Leave to Amend and to Refer the Matter back to the Magistrate Judge for Proceedings on the Remaining Claim(s); Objection Deadline: 30 Days signed by Magistrate Judge Sheila K. Oberto on 7/16/2013. Referred to Judge Anthony W. Ishii. Objections to F&R due by 8/19/2013. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 GUILLERMO VERA,

Case No. 1:13-cv-00814-AWI-SKO-HC

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15 CONNIE GIPSON,

FINDINGS AND RECOMMENDATIONS TO
DISMISS PETITIONER’S FIRST THROUGH
FOURTH CLAIMS WITHOUT LEAVE TO
AMEND (DOC. 1)
AND TO REFER THE MATTER BACK TO THE
MAGISTRATE JUDGE FOR PROCEEDINGS ON
THE REMAINING CLAIM(S)

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OBJECTIONS DEADLINE: 30 DAYS

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Petitioner,
v.

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Respondent.

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

The matter has been referred to the Magistrate Judge

pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304.
Pending before the Court is the petition, which was filed on May 30,
2013.
I.

Screening the Petition

Rule 4 of the Rules Governing § 2254 Cases in the United States

28 District Courts (Habeas Rules) requires the Court to make a
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1 preliminary review of each petition for writ of habeas corpus.

The

2 Court must summarily dismiss a petition "[i]f it plainly appears
3 from the petition and any attached exhibits that the petitioner is
4 not entitled to relief in the district court....”

Habeas Rule 4;

5 O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also,
6 Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).

Habeas Rule

7 2(c) requires that a petition 1) specify all grounds of relief
8 available to the Petitioner; 2) state the facts supporting each
9 ground; and 3) state the relief requested.

Notice pleading is not

10 sufficient; rather, the petition must state facts that point to a
11 real possibility of constitutional error.

Rule 4, Advisory

12 Committee Notes, 1976 Adoption; O’Bremski v. Maass, 915 F.2d at 420
13 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)).
14 Allegations in a petition that are vague, conclusory, or palpably
15 incredible are subject to summary dismissal.

Hendricks v. Vasquez,

16 908 F.2d at 491.
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The Court may dismiss a petition for writ of habeas corpus

18 either on its own motion under Habeas Rule 4, pursuant to the
19 respondent's motion to dismiss, or after an answer to the petition
20 has been filed.

Advisory Committee Notes to Habeas Rule 8, 1976

21 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir.
22 2001).

However, a petition for habeas corpus should not be

23 dismissed without leave to amend unless it appears that no tenable
24 claim for relief can be pleaded were such leave granted.

Jarvis v.

25 Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
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Here, Petitioner, an inmate of the California Substance Abuse

27 Treatment Facility at Corcoran, California (CSATF), challenges a
28 decision of California’s Board of Parole Hearings (BPH) which he
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1 describes as occurring on February 15, 2013.

(Pet., doc. 1, 1.)

2 However, Petitioner also submits an affidavit describing a parole
3 hearing scheduled to take place before the BPH on February 15, 2012,
4 to which Petitioner was not taken.

Instead, on Friday February 10,

5 2012, or on February 17, 2012, Petitioner was transported to a
6 hearing without being notified of the reasons for the hearing.
7 at 20.)

(Id.

At the beginning of the hearing, Petitioner requested a

8 postponement, but the translating officer did not or was unable to
9 communicate that to the hearing officer, who then ordered that
10 Petitioner be removed momentarily from the proceeding.

The hearing

11 proceeded in Petitioner’s absence, and he did not have an
12 opportunity to present his case.

A correctional officer gave

13 Petitioner some papers but did not read them to Petitioner.
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(Id.)

Petitioner’s allegations in the petition are truncated and

15 somewhat unclear.

He has attached documentation concerning numerous

16 prison appeals which do not appear to relate directly to the claims
17 before the Court.

The Court will set forth Petitioner’s allegations

18 to the extent that they can reasonably be understood.

Petitioner

19 raises the following claims in the petition: 1) a governmental
20 entity, which appears to be a California court, failed to notify
21 Petitioner that a pending case would be dismissed for failure to
22 prosecute based on Petitioner’s inability to gain access to the law
23 library, and the court thereby interfered with Petitioner’s access
24 to an appeal (pet. 4-5); 2) Petitioner suffered “mail fraud” or
25 “censorship” when on September 27, 2012, he gave records and an
26 informal reply to a correctional officer to mail, the officer
27 refused to sign the proof of service, and Petitioner received a
28 notice from a state court on October 17, 2012, that the records had
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1 not been received (id. at 4-6); 3) the CDCR refused to provide
2 Petitioner with the file review that Commissioner Lopez had ordered
3 and, therefore, was in contempt of Commissioner Lopez’s order (id.
4 at 7, 40, 67); 4) a preliminary injunction or temporary restraining
5 order is appropriate because the Kern County Superior Court failed
6 to grant Petitioner a default judgment in his habeas proceeding (id.
7 at 7, 31); and 5) a parole hearing was held on or about February 10
8 or 17, 2012, without notice to Petitioner, without his presence, and
9 without his having an opportunity to present his case (id. at 20,
10 67).
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II.

Claims concerning Conditions of Confinement

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Because the petition was filed after April 24, 1996, the

13 effective date of the Antiterrorism and Effective Death Penalty Act
14 of 1996 (AEDPA), the AEDPA applies to the petition.

Lindh v.

15 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484,
16 1499 (9th Cir. 1997).
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A federal court may only grant a state prisoner’s petition for

18 writ of habeas corpus if the petitioner can show that "he is in
19 custody in violation of the Constitution or laws or treaties of the
20 United States."

28 U.S.C. § 2254(a).

A habeas corpus petition is

21 the correct method for a prisoner to challenge the legality or
22 duration of his confinement.

Badea v. Cox, 931 F.2d 573, 574 (9th

23 Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973));
24 Advisory Committee Notes to Habeas Rule 1, 1976 Adoption.
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In contrast, a civil rights action pursuant to 42 U.S.C.

26 § 1983 is the proper method for a prisoner to challenge the
27 conditions of that confinement.

McCarthy v. Bronson, 500 U.S. 136,

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1 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574;
2 Advisory Committee Notes to Habeas Rule 1.
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Here, Petitioner’s first claim concerning interference with

4 access to the courts does not directly concern the legality or
5 duration of Petitioner’s confinement; rather, it relates to the
6 conditions under which Petitioner was confined.

Petitioner’s second

7 claim concerning interference with his outgoing legal mail also
8 relates to the conditions of Petitioner’s confinement and not the
9 legality or duration of that confinement.

Because the claims

10 concern prison conditions, they should be brought in a civil rights
11 action.

Thus, even if leave to amend were granted, Petitioner would

12 not be able to state a tenable habeas claim.
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Accordingly, Petitioner’s two conditions claims should be

14 dismissed without leave to amend.
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III.

State Law Claims

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Petitioner’s third claim concerning contempt of a state

17 officer’s order and his fourth claim concerning the state court’s
18 failure to grant a default judgment in a habeas proceeding relate to
19 actions of state judicial or executive officers that were
20 necessarily undertaken pursuant to state law.
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Petitioner’s third claim alleges that the California Department

22 of Corrections and Rehabilitation (CDCR) refused to provide
23 Petitioner with a file review that Commissioner Lopez had ordered,
24 and thus the CDCR was in contempt of Commissioner Lopez’s order.
25 The nature and context of the order for a file review are unclear,
26 but the gravamen of Petitioner’s complaint is that the CDCR’s
27 omission was not in compliance with the order of a state officer who
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1 apparently was a commissioner of the BPH, and who necessarily was
2 acting according to state law.
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Similarly, with respect to Petitioner’s fourth claim that a

4 state court failed to award Petitioner a default judgment in his
5 habeas corpus proceeding, the Kings County Superior Court
6 expressly informed Petitioner that his motion for default judgment
7 would not be processed because there were no default judgments in
8 habeas corpus.

(Id. at 31.)

The court was thus acting pursuant to

9 its interpretation and application of state law.
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Federal habeas relief is available to state prisoners only to

11 correct violations of the United States Constitution, federal laws,
12 or treaties of the United States.

28 U.S.C. § 2254(a).

Federal

13 habeas relief is not available to retry a state issue that does not
14 rise to the level of a federal constitutional violation.

Wilson v.

15 Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v. McGuire,
16 502 U.S. 62, 67-68 (1991).

Alleged errors in the application of

17 state law are not cognizable in federal habeas corpus.

Souch v.

18 Schaivo, 289 F.3d 616, 623 (9th Cir. 2002) (an ex post facto claim
19 challenging state court’s discretionary decision concerning
20 application of state sentencing law presented only state law issues
21 and was not cognizable in a proceeding pursuant to 28 U.S.C.
22 § 2254); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).
23 Court accepts a state court's interpretation of state law.
24 v. Day, 110 F.3d at 1389.

The

Langford

In a habeas corpus proceeding, this Court

25 is bound by the California Supreme Court’s interpretation of
26 California law unless the interpretation is deemed untenable or a
27 veiled attempt to avoid review of federal questions.
28 Woodford, 255 F.3d 926, 964 (9th Cir. 2001).
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Murtishaw v.

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Here, there is no basis for a conclusion that the CDCR or the

2 state court attempted to avoid review of federal questions.

This

3 Court is bound by the state court’s interpretation and application
4 of state law.

Because Petitioner’s third and fourth claims present

5 solely questions of state law, they are not cognizable in a
6 proceeding pursuant to 28 U.S.C. § 2254.
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Accordingly, Petitioner’s claims concerning the CDCR’s failure

8 to comply with the order of a state commissioner and a state court’s
9 failure to grant Petitioner’s motion for a default judgment should
10 be dismissed without leave to amend.

In sum, Petitioner’s first,

11 second, third, and fourth claims should be dismissed without leave
12 to amend.
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Petitioner’s pro se petition may be construed as setting forth

14 an additional claim, the fifth, relating to the parole proceedings
15 and the state authorities’ failure to provide him with a file review
16 or access to documents before the hearing, notice of the hearing, an
17 opportunity to be present at the hearing, and an opportunity to be
18 heard.

Petitioner cites to cases that articulate due process

19 standards.

Accordingly, the Court understands that Petitioner

20 raises an additional due process claim or claims relating to the
21 denial of an opportunity to have access to his records and the
22 denial of notice and the opportunity to be present and to be heard.
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In light of the additional claim that would remain pending

24 before the Court if these findings and recommendations were adopted
25 by the District Judge, it will be recommended that after the
26 District Judge has completed consideration of the findings and
27 recommendations, the matter be referred back to the Magistrate Judge
28 for further proceedings on the remaining claim, including
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1 preparation of an order to the Respondent to respond to the
2 remaining due process claim or claims in the petition.
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IV.

Recommendations

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Accordingly, it is RECOMMENDED that:

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1) Petitioner’s first, second, third, and fourth claims be

6 DISMISSED without leave to amend because they are not cognizable in
7 this proceeding pursuant to 28 U.S.C. § 2254; and
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2) The matter be REFERRED back to the Magistrate Judge for

9 further proceedings on the remaining due process claim or claims,
10 including preparation of an order directing Respondent to respond to
11 the remaining due process claim or claims in the petition.
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These findings and recommendations are submitted to the United

13 States District Court Judge assigned to the case, pursuant to the
14 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local
15 Rules of Practice for the United States District Court, Eastern
16 District of California.

Within thirty (30) days after being served

17 with a copy, any party may file written objections with the Court
18 and serve a copy on all parties.

Such a document should be

19 captioned AObjections to Magistrate Judge=s Findings and
20 Recommendations.@

Replies to the objections shall be served and

21 filed within fourteen (14) days (plus three (3) days if served by
22 mail) after service of the objections.

The Court will then review

23 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C).
24 The parties are advised that failure to file objections within the
25 specified time may waive the right to appeal the District Court=s
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1 order.

Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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5 IT IS SO ORDERED.
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Dated:

July 16, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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