Brisette v. California Supreme Court et al

Filing 35

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 7/26/16 RECOMMENDING that Petitioners request to stay and grant leave to amend (as stated), (ECF No. 28 ) be denied; Respondent's motion to dismiss, filed April 4, 20 16 (ECF No. 24 ), be granted and this action be dismissed; however, petitioner should advise the district judge, if petitioner so desires, that petitioner wishes to proceed in this case as a civil rights action. Petitioner should demonstrate in his request that a viable federal civil rights claim exists. If the district judge believes that such amendment is advisable after review of the objections, petitioner should be allowed to proceed in a civil rights action with an amended complaint, naming proper defendants, and setting forth a federal claim, after paying the normal filing fee for civil actions. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days.(Dillon, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

PHILLIP BRISETTE,

12

No. 2:16-cv-0208 GEB GGH P

Petitioner,

13

v.

14

ERIC ARNOLD,

15

FINDINGS AND RECOMMENDATIONS

Respondent.

16
17

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a

18

writ of habeas corpus pursuant to 28 U.S.C. § 2254.

19

INTRODUCTION AND BACKGROUND

20

Petitioner initiated this action in the Northern District of California as a petition for

21

peremptory writ of mandate on December 7, 2015. After an amended petition was filed on

22

January 26, 2016, the action was transferred to this district on February 1, 2016. The petition

23

alleges that petitioner had been charged with a violation of CCR Title 15, section 3016(c),

24

introduction of a controlled substance into the institution for sales and distribution. (ECF No. 10

25

at 6.) The amended petition raises the following claim: that in processing his administrative

26

appeal, respondent violated petitioner’s due process rights by denying a hearing or interview.

27

Currently before the court is respondent’s motion to dismiss for failure to state a claim and

28

for lack of exhaustion, filed April 4, 2016. Petitioner has filed an opposition, to which respondent
1

1

has filed a reply. Having reviewed all filings, the court now issues the following findings and

2

recommendations.

3

DISCUSSION

4
5
6

I.

FAILURE TO STATE A CLAIM
A. Standard

Rule 4 of the Rules Governing Section 2254 Cases provides, in pertinent part:

7

If it plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court, the judge
must dismiss the petition and direct the clerk to notify the
petitioner.

8
9
10

The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for

11

writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion

12

to dismiss, or after an answer to the petition has been filed. See Herbst v. Cook, 260 F.3d 1039

13

(9th Cir. 2001). A petition for habeas corpus should not be dismissed without leave to amend

14

unless it appears that no tenable claim for relief can be pleaded were such leave granted. See

15

Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

16
17

B. Analysis
Respondent’s first basis for dismissal is that the habeas petition fails to state a claim

18

because petitioner’s inability to receive an interview for purposes of his inmate appeal is not a

19

right protected by the Constitution or federal law. Rather, respondent argues, it is a state law

20

matter only.

21

A writ of habeas corpus is available under 28 U.S.C. § 2254(a) only on the basis of some

22

transgression of federal law binding on the state courts. Middleton v. Cupp, 768 F.2d 1083, 1085

23

(9th Cir. 1985); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). It is unavailable for

24

alleged error in the interpretation or application of state law. Middleton v. Cupp, 768 F.2d at

25

1085; see also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987); Givens v. Housewright, 786

26

F.2d 1378, 1381 (9th Cir. 1986). Habeas corpus cannot be utilized to try state issues de novo.

27

Milton v. Wainwright, 407 U.S. 371, 377, 92 S. Ct. 2174, 2178 (1972).

28

The Supreme Court has reiterated the standards of review for a federal habeas court.
2

1

Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475 (1991). In Estelle v. McGuire, the Supreme

2

Court reversed the decision of the Court of Appeals for the Ninth Circuit, which had granted

3

federal habeas relief. The Court held that the Ninth Circuit erred in concluding that the evidence

4

was incorrectly admitted under state law since, “it is not the province of a federal habeas court to

5

reexamine state court determinations on state law questions.” Id. at 67-68, 112 S. Ct. at 480. The

6

Court re-emphasized that “federal habeas corpus relief does not lie for error in state law.” Id. at

7

67, 112 S. Ct. at 480, citing Lewis v. Jeffers, 497 U.S. 764, 110 S. Ct. 3092, 3102 (1990), and

8

Pulley v. Harris, 465 U.S. 37, 41, 104 S. Ct. 871, 874-75 (1984) (federal courts may not grant

9

habeas relief where the sole ground presented involves a perceived error of state law, unless said

10

error is so egregious as to amount to a violation of the Due Process or Equal Protection clauses of

11

the Fourteenth Amendment).

12

The Supreme Court further noted that the standard of review for a federal habeas court “is

13

limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United

14

States (citations omitted).” Id. at 68, 112 S. Ct. at 480. The Court also stated that in order for

15

error in the state trial proceedings to reach the level of a due process violation, the error had to be

16

one involving “fundamental fairness,” Id. at 73, 112 S. Ct. at 482, and that “we ‘have defined the

17

category of infractions that violate “fundamental fairness” very narrowly.’” Id. at 73, 112 S. Ct.

18

at 482. Habeas review does not lie in a claim that the state court erroneously allowed or excluded

19

particular evidence according to state evidentiary rules. Jammal v. Van de Kamp, 926 F.2d 918,

20

919 (9th Cir. 1991). As more recently re-emphasized by the Supreme Court, “‘a mere error of

21

state law ... is not a denial of due process.’” Rivera v. Illinois, 556 U.S. 148, 129 S. Ct. 1446,

22

1454 (2009) (quoting Engle v. Isaac, 456 107, 121, n. 21, 102 S. Ct. 1558 [] (1982)).

23

Here, petitioner’s claim of denial of an interview for his appeal is a violation of state law

24

only. Although the California Code of Regulations do provide generally that “[a]t least one face-

25

to-face interview shall be conducted with the appellant at the first level of review, or the second

26

level if the first level of review is bypassed,” there are various exceptions. 15 C.C.R. § 3084.7(e).

27

The subsection cited by petitioner, § 3084.7(e)(4)(c), is one of those exceptions and provides that

28

where the inmate is not present at the institution, either a telephone interview may be conducted
3

1

or if the prisoner is not available for such an interview, “the reviewer may request that a suitable

2

employee in the jurisdiction where the appellant is located complete the interview and provide a

3

report.”

4

Even though California law may provide for an interview, the failure to provide one

5

would violate at most state law, not federal law. This is so because prisoners do not have a

6

“separate constitutional entitlement to a specific prison grievance procedure.” Ramirez v. Galaza,

7

334 F.3d 850, 860 (9th Cir. 2003), citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988).

8

Even the non-existence of, or the failure of prison officials to properly implement, an

9

administrative appeals process within the prison system does not raise constitutional concerns.

10

Mann, 855 F.2d at 640. See also, Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.1993); Flick v.

11

Alba, 932 F.2d 728 (8th Cir.1991); Azeez v. DeRobertis, 568 F.Supp. 8, 10 (N.D.Ill.1982) (“[A

12

prison] grievance procedure is a procedural right only, it does not confer any substantive right

13

upon the inmates. Hence, it does not give rise to a protected liberty interest requiring the

14

procedural protections envisioned by the fourteenth amendment”). Put another way, prison

15

officials are not required under federal law to process inmate grievances in a specific way or to

16

respond to them in a favorable manner. Because there is no right to any particular grievance

17

process, petitioner cannot state a cognizable federal habeas corpus claim for a violation of his due

18

process rights based on allegations that prison officials failed to give him a hearing or interview

19

in regard to his administrative appeal. See Tilford v. Chau, 2014 WL 2965320 at *15 (S.D. Cal.

20

July 1, 2014) (no right to a hearing during administrative appeal process).

21

Unlike the right to appear at an administrative hearing for a disciplinary proceeding, that

22

is a guaranteed procedural due process right; see Wolff v. McDonnell, 418 U.S. 539, 556 (1974);

23

there is no such right during the appeals process.1 Petitioner has failed to state a federal due

24

process claim.2

25

1

Petitioner did receive a hearing at his disciplinary proceeding. (ECF No. 10 at 59.)
Petitioner inserts an argument in the middle of his discussion concerning his claim of denial of
interview or hearing, that the investigator “used speculation” to “find guilt where there was not
sufficient evidence….” (ECF No. 10 at 7.) It is not clear that petitioner is raising a separate
claim here; however, if he is, it is not exhausted. It would also be barred by Nettles. See
discussion supra.
4
2

26
27
28

1

Respondent’s second contention why the petition does not state a federal habeas claim is

2

that habeas corpus is limited to challenges to the fact or duration of confinement, and that in this

3

case a grant of petitioner’s claim would not necessarily spell speedier release.

4

The Ninth Circuit has now definitively decided when a case is properly brought as a

5

habeas corpus petition, and when a civil rights action, if at all, is the appropriate type of action.

6

According to Nettles v. Grounds, __F.3d__, No. 12-16935 (9th Cir. July 26, 2016) (en banc), an

7

action is only properly brought as a habeas corpus petition if overturning the state conviction,

8

including a prison disciplinary conviction, would necessarily result in a reduction of the

9

underlying criminal sentence.3 The Ninth Circuit in Nettles overruled its past decisions which

10

believed habeas jurisdiction appropriate if overturning a disciplinary conviction could

11

“potentially” reduce the sentence, Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004), or

12

might “likely” affect the duration of the underlying sentence, Bostic v. Carlson, 884 F.2d 1267,

13

1269 (9th Cir. 1089). In Nettles itself, the vacating of a disciplinary conviction(s) would not

14

necessarily reduce the sentence, i.e., make a prisoner serving a life sentence eligible for parole,

15

since parole eligibility in California was based only in part on a disciplinary history. Therefore, it

16

could not be said that a vacating of the disciplinary would necessarily reduce the underlying

17

criminal sentence of life imprisonment with the possibility of parole.

18

The undersigned has reviewed petitioner’s exhibits and notes that petitioner was assessed

19

180 days loss of credit (as well as loss of visits and privileges). There is no indication as to

20

petitioner’s underlying sentence, however, and whether it is determinate or indeterminate. See

21

ECF No. 10 at 1 (length of sentence: “Not Applicable”). Therefore, the undersigned is unable to

22

determine whether petitioner’s claim, if successful, would lead to speedier release or is too

23

speculative. See Elder v. Swarthout, 2015 WL 4730370, at *3 (E.D.Cal. Aug. 10, 2015) (relying

24

on Nettles (pre-en banc) to find no cognizable habeas claim stated where petitioner sought

25

restoration of forfeited credits and expungement of a disciplinary conviction that was imposed

26

3

27
28

The majority opinion was joined in full by five judges, and a concurring judge who agreed with
the holding reached by the five judges, but did not join the majority only on an alternative
analysis reaching the holding based on statutory construction, as opposed to Supreme Court
precedent.
5

1

only seven years into an indeterminate sentence of 47 years to life because the connection

2

between the disciplinary conviction and the possibility of parole eligibility in the distant future

3

was merely speculative).

4

Petitioner has the burden to show that jurisdiction is proper under 28 U.S.C. section 2254.

5

He has not done so. Nothing in the petition, or the opposition to the motion to dismiss,

6

demonstrates that an invalidating of a disciplinary conviction would have more than a speculative

7

effect on the duration of his incarceration. Therefore, respondent’s motion should be granted on

8

this basis as well.

9

II.

10

EXHAUSTION

Because respondent’s position is that the case is not properly brought in habeas

11

jurisdiction, and the undersigned agrees, the argument that the habeas petition is not exhausted is

12

inapplicable.

13

III.

14

It is not appropriate to sua sponte construe a habeas petition as a civil rights action since

LEAVE TO AMEND

15

the action will probably not name the right defendants or seek appropriate civil rights relief.

16

Nettles, supra, at Section IV. In any event, the petitioner must expressly consent to a conversion

17

of the action which may necessitate the filing of an amended complaint, and may subject the

18

petitioner to a higher filing fee, as well as different exhaustion requirements. If petitioner herein

19

files objections to these Findings and Recommendations, he shall advise the district judge

20

whether he desires to transform this action into a civil rights action, in the event the district judge

21

agrees that this action may not proceed in habeas corpus. Petitioner is advised that whatever

22

relief may be available in a civil rights action, a favorable ruling in a civil rights action will not

23

direct a finding of parole eligibility. Petitioner is further advised that a civil rights action must

24

demonstrate a violation of the federal constitution or federal statutory law. Such an amendment is

25

doubtful here in that plaintiff has heretofore relied on asserted violations of state law. Finally, a

26

civil rights complaint must seek appropriate relief.

27

////

28

////
6

1

CONCLUSION

2

For the reasons stated herein, IT IS HEREBY RECOMMENDED that:

3

1. Petitioner’s request to stay and grant leave to amend (as stated), (ECF No. 28) be

4
5

denied.
2. Respondent’s motion to dismiss, filed April 4, 2016 (ECF No. 24), be granted and this

6

action be dismissed; however, petitioner should advise the district judge, if petitioner so desires,

7

that petitioner wishes to proceed in this case as a civil rights action. Petitioner should

8

demonstrate in his request that a viable federal civil rights claim exists. If the district judge

9

believes that such amendment is advisable after review of the objections, petitioner should be

10

allowed to proceed in a civil rights action with an amended complaint, naming proper defendants,

11

and setting forth a federal claim, after paying the normal filing fee for civil actions.

12

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

13

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

14

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

15

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

16

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

17

shall be served and filed within fourteen days after service of the objections. The parties are

18

advised that failure to file objections within the specified time may waive the right to appeal the

19

District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20

Dated: July 26, 2016

21

/s/ Gregory G. Hollows

22

UNITED STATES MAGISTRATE JUDGE

23
24
25
26
27

GGH:076:bris0208.mtd

28
7