Reed v. Kernan

Filing 15

FINDINGS and RECOMMENDATIONS to Grant Respondent's Motion to Dismiss the Petition 12 , signed by Magistrate Judge Michael J. Seng on 11/21/2017: 30-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MYCHAL REED,
Petitioner,

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v.

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DANIEL PARAMO, Warden
Respondent.

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Case No. 1:17-cv-01347-AWI-MJS (HC)
FINDINGS AND RECOMMENDATIONS TO
GRANT RESPONDENT’S MOTION TO
DISMISS THE PETITION
(ECF NO. 12)
THIRTY (30) DAY OBJECTION DEADLINE

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas

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corpus under 28 U.S.C. § 2254. Respondent Daniel Paramo, Warden of R.J. Donovan

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Correctional Facility, is hereby substituted as the proper named respondent pursuant to

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Rule 25(d) of the Federal Rules of Civil Procedure. Respondent is represented by

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Pamela B. Hooley of the Office of the California Attorney General.

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I.

Relevant Procedural History

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Petitioner is currently in the custody of the California Department of Corrections

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and Rehabilitation pursuant to the 2010 judgment of the Superior Court of California,

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County of San Diego. (ECF No. 12-2 at 4.) He is serving a term of life without the

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possibility of parole on a murder conviction. (Id.) In this proceeding, he challenges

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disciplinary proceedings that occurred while he was incarcerated at California State

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Prison, Corcoran. (ECF No. 1.)

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More specifically, on January 20, 2016, Petitioner was charged in a CDCR Form

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115 Rules Violation Report with Behavior Which Could Lead to Violence. (ECF No. 12-2

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at 9.) It was alleged that, on January 18, 2016, during a cell search, Petitioner

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demanded that an officer return a bag that covered Petitioner’s typewriter and, when the

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officer did not comply, Petitioner followed him and called him a “fucken bitch.” (Id.)

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The RVR was adjudicated on February 18, 2016. (Id. at 10.) Petitioner pled not

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guilty. (Id.) The hearing officer found Petitioner guilty of the charge but, in the interests of

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justice, dismissed the formal RVR and reported the misconduct as a Custodial

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Counseling Chrono on a CDCR Form 128A. Petitioner was counseled and reprimanded.

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He was not assessed a loss of credits, nor was a term of disciplinary segregation

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imposed.

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Thereafter, Petitioner filed an administrative grievance, claiming that the RVR was

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“phony” and written in retaliation for Petitioner’s prior grievances. Additionally, he alleged

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that he was denied an interpreter required under the ADA because he is hearing

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impaired, and also was denied various other procedural and substantive due process

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protections. (Id. at 14-18.) After exhausting his administrative remedies, he presented his

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claims to the California state courts by way of writs of habeas corpus, proceeding

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eventually to the California Supreme Court where his petition was summarily denied.

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(ECF Nos. 12-1 through 12-4.)

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On October 6, 2017, Petitioner filed the instant petition challenging his disciplinary

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proceedings. (ECF No. 1.) On November 1, 2017, Respondent filed a motion to dismiss,

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arguing that the Court lacks habeas jurisdiction over the petition. (ECF No. 12.) On

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November 17, 2017, Petitioner filed an opposition. (ECF No. 13.) On November 20,

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2017, Respondent filed a reply. (ECF No. 14.) The matter is submitted.

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II.

Jurisdiction

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Relief by way of a writ of habeas corpus extends to a prisoner under a judgment

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of a state court if the custody violates the Constitution, laws, or treaties of the United

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States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362,

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375 n.7 (2000). However, federal courts lack habeas jurisdiction over claims for

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constitutional violations that are not within the “core” of habeas corpus. Nettles v.

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Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 645, 196

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L. Ed. 2d 542 (2017). The core of habeas corpus includes only those claims that

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challenge the fact or duration of the conviction or sentence. Id. at 934. “[W]hen a

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prisoner's claim would not necessarily spell speedier release, that claim does not lie at

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the core of habeas corpus[.]” Skinner v. Switzer. 562 U.S. 521, 535 n.13 (2011) (citation

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and internal quotation marks omitted). Such claims must be brought, if at all, in a civil

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rights complaint. Nettles, 830 F.3d at 934.

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With respect to disciplinary proceedings, the Ninth Circuit has concluded that the

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mere fact that a disciplinary decision may be considered as a factor in denying parole is

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insufficient to confer habeas jurisdiction on the court. Nettles, 830 F.3d at 934-35. Thus,

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a prisoner serving an indeterminate sentence, who will not directly benefit from the

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restoration of good time credits, may be foreclosed from seeking habeas relief in relation

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to disciplinary proceedings. See id. at 928-29.

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Here, Petitioner did not lose any credits in relation to the disciplinary proceeding.

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Even if he had lost credits, he, like Nettles, would not directly benefit from the restoration

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of lost good time credits due to the nature of his sentence. Because there is no relief the

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Court could offer that would necessarily spell speedier release, the Court does not have

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habeas jurisdiction over Petitioner’s claims. While Petitioner contends that the

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disciplinary decision has affected the potential for him to receive clemency or a

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commutation of his sentence (ECF No. 13.), the disciplinary decision is but one factor

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that will be considered in determining whether to grant these requests. In other words,

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reversal of the disciplinary decision will not necessarily result in the grant of clemency or

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a commutation of Petitioner’s sentence. Cf. id. at 935; Cal Penal Code § 4800, et seq. In

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this regard, his claim does not fall within the core of habeas corpus.

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Based on the foregoing, the Court does not have habeas jurisdiction over the

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petition and the claims must be brought, if at all, in a § 1983 civil rights action.

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III.

Conversion to § 1983 Action

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In an appropriate case a habeas petition may be construed as a section 1983

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complaint. Wilwording v. Swenson, 404 U.S. 249, 251, 92 S. Ct. 407, 30 L. Ed. 2d 418

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(1971). Although the Court may construe a habeas petition as a civil rights action, it is

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not required to do so. Since the time when the Wilwording case was decided there have

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been significant changes in the law. For instance, the filing fee for a habeas petition is

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five dollars, and if leave to proceed in forma pauperis is granted, the fee is forgiven.

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However, prisoners proceeding in forma pauperis in civil rights cases are required to pay

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the $350 filing fee by way of periodic deductions from the prisoner's trust account. See

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28 U.S.C. 1915(b)(1). A prisoner who might be willing to file a habeas petition for which

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he or she would not have to pay a filing fee might feel otherwise about a civil rights

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complaint for which the $350 fee would be deducted from income to his or her prisoner

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account. Also, a civil rights complaint which is dismissed as malicious, frivolous, or for

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failure to state a claim would count as a "strike" under 28 U.S.C. § 1915(g), which is not

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true for habeas cases.

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In view of these potential pitfalls for Petitioner if the petition were construed as a

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civil rights complaint, the Court will recommend the case be dismissed without prejudice

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to Petitioner presenting the claims in a civil rights complaint pursuant to 42 U.S.C.

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§ 1983, if he so chooses. Any such complaint will be assigned a separate civil number.

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IV.

Conclusion and Recommendations

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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1. Respondent’s motion to dismiss be GRANTED, and

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2. The petition for writ of habeas corpus be dismissed without prejudice for

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lack of jurisdiction.

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The findings and recommendations are 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

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thirty (30) days after being served with the findings and recommendations, any party

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may file written objections with the Court and serve a copy on all parties. Such a

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document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Any reply to the objections shall be served and filed within fourteen

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(14) days after service of the objections. The parties are advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

November 21, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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