Vega v. Davey

Filing 5

ORDER DISMISSING 1 Petition for Writ of Habeas Corpus without Leave to Amend for Failure to State a Cognizable Claim, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, and DIRECTING the CLerk to CLOSE the CASE signed by Magistrate Judge Sheila K. Oberto on 6/3/2014. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 FRANCISCO VEGA, JR.,

Case No. 1:14-cv-00660-SKO-HC

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ORDER DISMISSING THE PETITION FOR
WRIT OF HABEAS CORPUS WITHOUT LEAVE
TO AMEND FOR FAILURE TO STATE A
COGNIZABLE CLAIM (D0C. 1),
DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY,
AND DIRECTING THE CLERK TO CLOSE
THE CASE

Petitioner,

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v.

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15 DAVE DAVEY, Warden,
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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.

Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has

consented to the jurisdiction of the United States Magistrate Judge
to conduct all further proceedings in the case, including the entry
of final judgment, by manifesting Petitioner’s consent in a writing
signed by Petitioner and filed by Petitioner on May 16, 2014.
Pending before the Court is the petition, which was filed on May 5,
2014.
I.

Screening the Petition

Rule 4 of the Rules Governing ' 2254 Cases in the United States
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1 District Courts (Habeas Rules) requires the Court to make a
2 preliminary review of each petition for writ of habeas corpus.

The

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

Habeas Rule 4;

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

Habeas Rule

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

Notice pleading is not

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

Rule 4, Advisory Committee

13 Notes, 1976 Adoption; O=Bremski v. Maass, 915 F.2d at 420 (quoting
14 Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)).

Allegations in

15 a petition that are vague, conclusory, or palpably incredible are
16 subject to summary dismissal.

Hendricks v. Vasquez, 908 F.2d at

17 491.
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The Court may dismiss a petition for writ of habeas corpus

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

Advisory Committee Notes to Habeas Rule 8, 1976

22 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir.
23 2001).

However, a petition for habeas corpus should not be

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

Jarvis v.

26 Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
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Here, Petitioner alleges that he is an inmate of the California

28 State Prison at Corcoran, California, serving a sentence of life
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1 without the possibility of parole imposed by the Superior Court of
2 the State of California, County of Santa Clara, for murder with
3 special circumstances sustained on or about May 23, 2008.
4 Petitioner alleges he has suffered violations of state visiting
5 regulations and state statutes due to his prison’s failure to give
6 inmates sufficient opportunities to visit with their visitors.
7 Petitioner seeks an increase in the number of visiting tables and in
8 the duration and frequency of visits.
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II.

Conditions of Confinement

This Court has a duty to determine its own subject matter

11 jurisdiction, and lack of subject matter jurisdiction can be raised
12 on the Court’s own motion at any time.

Fed. R. Civ. P. 12(h)(3);

13 CSIBI v. Fustos, 670 F.2d 134, 136 n.3 (9th Cir. 1982) (citing City
14 of Kenosha v. Bruno, 412 U.S. 507, 511-512 (1973)).
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A court will not infer allegations supporting federal

16 jurisdiction.

A federal court is presumed to lack jurisdiction

17 unless the contrary affirmatively appears; thus, federal subject
18 matter jurisdiction must always be affirmatively alleged.

Fed. R.

19 Civ. P. 8(a); Stock West, Inc. v. Confederated Tribes of the
20 Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).
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A federal court may only grant a state prisoner’s petition for

22 writ of habeas corpus if the petitioner can show "he is in custody
23 in violation of the Constitution or laws or treaties of the United
24 States."

28 U.S.C. § 2254(a).

A habeas corpus petition is the

25 correct method for a prisoner to challenge the legality or duration
26 of his confinement.

Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991)

27 (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973)); Advisory
28 Committee Notes to Habeas Rule 1, 1976 Adoption.
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In contrast, a civil rights action pursuant to 42 U.S.C. § 1983

2 is the proper method for a prisoner to challenge the conditions of
3 that confinement.

McCarthy v. Bronson, 500 U.S. 136, 141 42 (1991);

4 Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee
5 Notes to Habeas Rule 1, 1976 Adoption.
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Regarding prison disciplinary proceedings, a constitutional

7 claim concerning the application of rules administered by a prison
8 or penal administrator that challenges the duration of a sentence is
9 a cognizable claim of being in custody in violation of the
10 Constitution pursuant to 28 U.S.C. §2254.

See, e.g., Superintendent

11 v. Hill, 472 U.S. 445, 454 (1985) (determining procedural due
12 process claim concerning loss of time credits resulting from
13 disciplinary procedures and findings).

The Supreme Court has held

14 that challenges to prison disciplinary adjudications that have
15 resulted in a loss of time credits must be raised in a federal
16 habeas corpus action and not in a § 1983 action because such a
17 challenge is to the very fact or duration of physical imprisonment,
18 and the relief sought is a determination of entitlement of immediate
19 or speedier release.

Preiser v. Rodriguez, 411 U.S. 475, 500.

20 Thus, such claims are within the core of habeas corpus jurisdiction.
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Cases in this circuit have recognized a possibility of habeas

22 jurisdiction in suits that do not fall within the core of habeas
23 corpus.

Bostic v. Carlson, 884 F.3d 1267 (9th Cir. 1989)

24 (expungement of disciplinary finding likely to accelerate
25 eligibility for parole); Docken v. Chase, 393 F.3d 1024 (9th Cir.
26 2004) (a claim challenging the constitutionality of the frequency of
27 parole reviews, where the prisoner was seeking only equitable
28 relief, was held sufficiently related to the duration of
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1 confinement).

However, relief pursuant to § 1983 remains an

2 appropriate remedy for claims concerning administrative decisions
3 made in prison where success would not necessarily imply the
4 invalidity of continuing confinement.

Docken v. Chase, 393 F.3d at

5 1030 (characterizing Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997)
6 as holding that a § 1983 suit is an appropriate remedy for
7 challenges to conditions [there, administrative placement in a sex
8 offender program affecting eligibility for parole] which do not
9 necessarily imply the invalidity of continuing confinement); Ramirez
10 v. Galaza, 334 F.3d 850, 852, 858 (9th Cir. 2003).
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Here, Petitioner’s claims do not relate to or affect the

12 duration of his confinement; they concern only the conditions of his
13 confinement.

Petitioner has submitted complete documentation of his

14 attempts to exhaust administrative and state court remedies with
15 respect to his claims, but neither Petitioner’s express allegations
16 nor the submissions contain specific facts that demonstrate that as
17 a result of the challenged procedures, the legality or duration of
18 Petitioner’s confinement, as distinct from the conditions of his
19 confinement, was affected.
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Thus, the Court concludes that Petitioner has failed to state

21 facts that would entitle him to relief in a proceeding pursuant to
22 28 U.S.C. § 2254 because this Court’s review is limited to matters
23 that would affect the legality or duration of Petitioner’s
24 confinement.
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III.

Remedy

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Because Petitioner has already submitted complete documentation

27 of the challenged process, it does not appear possible that if leave
28 to amend were granted, Petitioner could allege a tenable claim
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1 relating to the legality or duration of his confinement.
2 Accordingly, Petitioner’s habeas petition will be dismissed without
3 leave to amend.
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Although the Court lacks habeas corpus jurisdiction over the

5 claims concerning conditions of confinement, the Court could
6 construe Petitioner’s claims as a civil rights complaint brought
7 pursuant to 42 U.S.C. § 1983.
8 249, 251 (1971).

See, Wilwording v. Swenson, 404 U.S.

However, the Court declines to construe the

9 petition as a civil rights complaint because of various differences
10 in the procedures undertaken in habeas proceedings on the one hand,
11 and civil rights actions on the other.
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First, if the petition were converted to a civil rights

13 complaint, Petitioner would be obligated to pay the $350 filing fee
14 for a civil action, whether in full or through withdrawals from his
15 prison trust account in accordance with the availability of funds.
16 28 U.S.C. '' 1914, 1915(b).

The dismissal of this action at the

17 pleading stage would not terminate Petitioner's duty to pay the $350
18 filing fee.

Here, the petition was not accompanied by the $350

19 filing fee.
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Another omission from the petition that affects the Court’s

21 decision not to construe it as a civil rights complaint is
22 Petitioner’s failure to identify the capacity in which the named
23 respondent would be sued for purposes of a civil rights claim, which
24 is critical to the issue of sovereign immunity.

Additionally, if

25 the petition were converted to a civil rights complaint, the Court
26 would be obligated to screen it pursuant to the screening provisions
27 of the Prisoner Litigation Reform Act of 1995.
28 1915A(b); 42 U.S.C. § 1997e(c)(1).
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28 U.S.C. §

It is not clear that all of

1 Petitioner’s allegations state civil rights claims.

If the pleading

2 ultimately were dismissed for failure to state a claim upon which
3 relief may be granted, such a dismissal could count as a “strike”
4 against Petitioner for purposes of 28 U.S.C. § 1915(g) and any
5 future civil rights action he might bring.
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Based on the foregoing, the court concludes that the petition

7 must be dismissed so Petitioner himself may determine whether or not
8 he wishes to raise his present claims through a properly submitted
9 civil rights complaint.
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IV.

Certificate of Appealability

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Unless a circuit justice or judge issues a certificate of

12 appealability, an appeal may not be taken to the Court of Appeals
13 from the final order in a habeas proceeding in which the detention
14 complained of arises out of process issued by a state court.

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15 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
16 (2003).

A district court must issue or deny a certificate of

17 appealability when it enters a final order adverse to the applicant.
18 Rule 11(a) of the Rules Governing Section 2254 Cases.
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A certificate of appealability may issue only if the applicant

20 makes a substantial showing of the denial of a constitutional right.
21 ' 2253(c)(2).

Under this standard, a petitioner must show that

22 reasonable jurists could debate whether the petition should have
23 been resolved in a different manner or that the issues presented
24 were adequate to deserve encouragement to proceed further.

Miller-

25 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
26 473, 484 (2000)).

A certificate should issue if the Petitioner

27 shows that jurists of reason would find it debatable whether: (1)
28 the petition states a valid claim of the denial of a constitutional
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1 right, and (2) the district court was correct in any procedural
2 ruling.

Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

In determining this issue, a court conducts an overview of the

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4 claims in the habeas petition, generally assesses their merits, and
5 determines whether the resolution was debatable among jurists of
6 reason or wrong.

Id.

An applicant must show more than an absence

7 of frivolity or the existence of mere good faith; however, the
8 applicant need not show that the appeal will succeed.

Miller-El v.

9 Cockrell, 537 U.S. at 338.
Here, it does not appear that reasonable jurists could debate

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11 whether the petition should have been resolved in a different
12 manner.

Petitioner has not made a substantial showing of the denial

13 of a constitutional right.

Accordingly, the Court will not issue a

14 certificate of appealability.
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V.

Disposition

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Based on the foregoing, it is ORDERED that:

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1) The petition for writ of habeas corpus is DISMISSED without

18 leave to amend for Petitioner’s failure to state facts that would
19 entitle him to relief in a proceeding pursuant to 28 U.S.C. § 2254;
2) The Court DECLINES to issue a certificate of appealability;

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3) The Clerk is DIRECTED to close the action because the

23 dismissal terminates it in its entirety.
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Dated:

June 3, 2014

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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