Jones v. Unknown

Filing 7

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 4/30/15 recommending that the petition be dismissed for failure to state a cognizable claim for federal habeas corpus relief. F&R referred to Judge John A. Mendez. Objections to F&R due within fourteen days. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDWARD JONES,

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Petitioner,

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No. 2:14-cv-2475 JAM KJN P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

ROBERT M. FOX, Warden,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. Petitioner has now filed a request to proceed in forma pauperis.
Examination of the affidavit reveals petitioner is unable to afford the costs of this action.

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Accordingly, leave to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas

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Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus.

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The Court must summarily dismiss a petition “[i]f it plainly appears from the petition and any

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attached exhibits that the petitioner is not entitled to relief in the district court. . . .” Id.;

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

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490 (9th Cir. 1990). Allegations in a petition that are vague, conclusory, or palpably incredible

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are subject to summary dismissal. Hendricks, 908 F.2d at 491.

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Further, the Court may dismiss a petition for writ of habeas corpus either on its own

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motion under Habeas Rule 4, pursuant to the respondent’s motion to dismiss, or after an answer

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to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see

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Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001). However, a petition for habeas corpus

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should not be dismissed without leave to amend unless it appears that no tenable claim for relief

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can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

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Here, petitioner is serving a sentence of 17 years to life in state prison based on his nolo

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contendere plea to second degree murder in November of 1989. Petitioner claims that respondent

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refuses to “obey and implement” the three judge court orders issued in the class actions of

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Coleman v. Brown, 2:90-cv-0520 KJM DAD, and Plata v. Brown, C01-1351 THE. Further,

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petitioner alleges that the decision of California’s Board of Parole Hearings (“BPH”), made on

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April 30, 2014, denying petitioner’s request for advancement of his parole hearing, was arbitrary

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and capricious.

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First, alleged violations of orders issued in class actions must be raised within the class

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action. If petitioner believes that prison officials are failing to abide by procedures established as

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a result of such class actions, or violating court orders issued therein, he should raise such

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concerns through counsel for the plaintiff class in such class actions.

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Second, even if the class actions accomplished changes in procedures for the BPH,

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individual determinations concerning parole still remain within the purview of the BPH. In other

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words, the BPH retains jurisdiction over parole decisions. Thus, the BPH determines whether

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petitioner is eligible for parole based on review of the suitability factors as applied to petitioner,

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regardless of orders issued in the class actions referenced by petitioner.

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Third, as to petitioner’s claim regarding the BPH’s denial of his request to advance his

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next parole hearing, petitioner has not cited any federal authority demonstrating that he did not

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receive the process he was due, if any, when the BPH denied his request. But in any event,

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district courts in our circuit have consistently rejected claims advanced by state prisoners that the

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BPH violates either federal law or any provision of the U.S. Constitution when it denies a petition

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to advance parole hearings. See Johnson v. Duffy, 2014 WL 3956689 (E.D. Cal. Aug. 13, 2014)
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(petitioner’s challenge to the BPH’s decision to deny his request to advance his next parole

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hearing date fails to state a cognizable claim for federal habeas corpus relief); Saffold v. Hill,

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2013 WL 6283893 at *1 (E.D. Cal. Dec.4, 2013) (same); Sardella-Lagomarsino v. Swarthout,

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2013 WL 1628242 at *3 (E.D. Cal. Apr.15, 2013) (“if due process does not require an evidentiary

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review of a decision denying parole . . . then there can be no due process right to an evidentiary

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review of a decision denying a request to advance a suitability hearing.”); Johnson v. Hartley,

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2013 WL 440990 at *2 (E.D. Cal. Feb. 5, 2013) (“Although there are certain minimal procedural

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due process protections implicated by a board’s decision to deny parole as set forth in the

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Supreme Court’s decision in Swarthout v. Cooke, such decision does not apply to a board’s

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decision not to advance a parole hearing.”) (internal citations omitted); Aranda v. Grounds, 2012

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WL 5289401 at *2 (N.D. Cal. Oct.25, 2012) (“petitioner’s claims that the Board violated his

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federal right to due process in denying his application to advance his parole hearing are without

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merit.”); Charity v. Ochoa, 2012 WL 4471592 at *1 (E.D. Cal. June 15, 2012) (“petitioner’s

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challenge to the Board’s decision not to hold his next parole hearing sooner involves only the

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Board’s compliance or non-compliance with state statutes and regulations governing the

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scheduling of parole suitability hearings, so it does not present a federal question.”). Such

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decisions are persuasive on the issue and this case is no different than those which resulted in the

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decisions cited above. Thus, petitioner fails to state a cognizable claim for federal habeas relief.

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Finally, petitioner claims he is “illegally housed in an open dorm setting.” (ECF No. 1 at

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4.) However, such a claim concerns petitioner’s conditions of confinement, not the fact or

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duration of his conviction. Claims concerning conditions of confinement are not cognizable in a

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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Thus, such claim must be raised

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in a civil rights complaint under 42 U.S.C. § 1983.

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Therefore, IT IS HEREBY ORDERED that petitioner is granted leave to proceed in forma
pauperis; and

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IT IS RECOMMENDED that the petition be dismissed for failure to state a cognizable

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claim for federal habeas corpus relief.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, petitioner may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections,

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he shall also address whether a certificate of appealability should issue and, if so, why and as to

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which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the

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applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

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2253(c)(3). Petitioner is advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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Dated: April 30, 2015

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/jone2472.156

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