Randolph v. Matevousian

Filing 7

FINDINGS and RECOMMENDATION to Dismiss 1 Petition for Lack of Habeas Jurisdiction signed by Magistrate Judge Sheila K. Oberto on 4/24/2017. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 5/30/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DEVONNE RANDOLPH,
Petitioner,

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v.

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FINDINGS AND RECOMMENDATION
TO DISMISS PETITION FOR
LACK OF HABEAS JURISDICTION

WARDEN MATEVOUSIAN,

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No. 1:17-cv-00397-LJO-SKO HC

Respondent.

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Screening Memorandum

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Petitioner Devonne Randolph, a federal prisoner confined in the United States
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Penitentiary, Atwater, California, proceeds pro se with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2241. Petitioner contends that correctional officers violated his and other

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black prisoners’ rights to due process by using narcotic identification kits (“NIK tests”) on coffee-

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stained brown paper napkins to create false positive drug testing results to be used to convict

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black, but not white, prisoners of narcotics possession charges. Petitioner moves that the court
order controlled testing to resolve the resulting disciplinary actions.

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I.

Preliminary Screening
Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct 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 petition . . . that the petitioner is not entitled to relief." Rule 4 of the

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Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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A petition for habeas corpus should not be dismissed without leave to amend unless it appears

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that no tenable claim for relief can be pleaded were such leave to be granted. Jarvis v. Nelson,
440 F.2d 13, 14 (9th Cir. 1971).

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II.

Bivens1 Complaint or Habeas Corpus Petition?
Challenges to the conditions of federal prison life are properly brought in a civil rights

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under 42 U.S.C. § 1983 or in a Bivens action. McCarthy v. Bronson, 500 U.S. 136, 142 (1991).

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A federal petition for writ of habeas corpus concerns whether a petitioner is in custody in

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violation of the Constitution. 28 U.S.C. § 2241. "Habeas corpus is the exclusive remedy for a
state prisoner who challenges the fact or duration of his confinement and seeks immediate or

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speedier release, even though such a claim may come within the literal terms of § 1983." Preiser
v. Rodriguez, 411 U.S. 475, 488-89 (1973). See also Nettles v. Grounds, 788 F.3d 992, 1004 (9th
Cir. 2015).

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Although Petitioner apparently has been convicted of narcotics possession using a false
positive NIK test as evidence, the petition does not seek relief from any penalty imposed as a
result of a disciplinary action. Instead, Petitioner seeks a court order for controlled testing to
resolve whether NIK tests of coffee-stained brown napkins produce test results that falsely

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indicate the presence of narcotics. His claim is properly advanced in a civil rights complaint

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pursuant to Bivens, not in a habeas petition. Accordingly, the undersigned recommends that the

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Court dismiss the petition without prejudice to Petitioner’s re-alleging his claim in a civil rights

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action.

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Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

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III.

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Certificate of Appealability
A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a

district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v.

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Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a
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certificate of appealability is 28 U.S.C. § 2253, which provides:
(a) In a habeas corpus proceeding or a proceeding under section 2255
before a district judge, the final order shall be subject to review, on appeal, by
the court of appeals for the circuit in which the proceeding is held.

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(b) There shall be no right of appeal from a final order in a proceeding
to test the validity of a warrant to remove to another district or place for
commitment or trial a person charged with a criminal offense against the
United States, or to test the validity of such person's detention pending
removal proceedings.

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(c) (1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals from—

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(A) the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State court; or

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(B) the final order in a proceeding under section 2255.

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(2) A certificate of appealability may issue under paragraph (1)
only if the applicant has made a substantial showing of the denial of a
constitutional right.

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(3) The certificate of appealability under paragraph (1) shall
indicate which specific issues or issues satisfy the showing required by
paragraph (2).

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If a court denies a habeas petition, the court may only issue a certificate of appealability

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"if jurists of reason could disagree with the district court's resolution of his constitutional claims

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or that jurists could conclude the issues presented are adequate to deserve encouragement to

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proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Although the petitioner is not required to prove the merits of his case, he must demonstrate

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"something more than the absence of frivolity or the existence of mere good faith on his . . .

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part." Miller-El, 537 U.S. at 338.

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Reasonable jurists would not find the Court's determination that Petitioner is not entitled

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to advance his alleged claims in an action for writ of habeas corpus to be debatable or wrong, or
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conclude that the issues presented required further adjudication. Accordingly, the Court should
decline to issue a certificate of appealability.

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IV.

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The undersigned recommends that the Court dismiss the Petition for writ of habeas corpus

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without prejudice to Petitioner’s advancing his claim in a complaint for civil rights relief and that

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Conclusion and Recommendation

the Court decline to issue a certificate of appealability.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty

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(30) days after being served with these Findings and Recommendations, Petitioner may file

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written objections with the Court. The document should be captioned AObjections to Magistrate

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Judge=s Findings and Recommendations.@ Petitioner is advised that failure to file objections

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within the specified time may constitute waiver of the right to appeal the District Court's order.

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Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d
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1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.

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Dated:

April 24, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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