Gaugush v. The Secretary of the California Department of Corrections and Rehabilitation

Filing 7

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/20/2017 GRANTING 2 Motion to Proceed IFP and RECOMMENDING that the 1 Petition for Writ of Habeas Corpus be summarily dismissed. Referred to Judge William B. Shubb. Objections to F&R due within 14 days after being served with these Findings and Recommendations. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER WALTER GAUGUSH,

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Petitioner,

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No. 2:16-cv-2130-WBS-EFB P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

THE SECRETARY OF THE
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,
Respondent.

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Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. He seeks leave to proceed in forma pauperis. See 28

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U.S.C. § 1915(a). Examination of the in forma pauperis affidavit reveals that petitioner is unable

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to afford the costs of suit. Accordingly, the application for leave to proceed in forma paupers is

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granted.
Under Rule 4 of the Rules Governing Section 2254 Cases, the court is required to conduct

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a preliminary review of all petitions for writ of habeas corpus filed by state prisoners. The court

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must summarily dismiss a petition if it “plainly appears . . . that the petitioner is not entitled to

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relief . . . .” The court has conducted the review required under Rule 4 and concludes that

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summary dismissal of the petition is required.

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Petitioner challenges the residency restriction imposed as a condition of his parole on or

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around June 30, 2016.1 ECF No. 1 at 24.2 But that challenge is not cognizable under section

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2254. A prisoner’s claim which, if successful, would not necessarily lead to immediate or

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speedier release falls outside the “core of habeas corpus” and must be pursued in an action

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brought pursuant to 42 U.S.C. § 1983. Nettles v. Grounds, No. 12-16935, 2016 U.S. App. LEXIS

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13573 (9th Cir. July 26, 2016). Because petitioner’s challenge to the residency restriction

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imposed as a condition of his parole “will neither affect the ‘fact or duration’ of his parole nor

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‘necessarily imply’ the invalidity of his state-court conviction or sentence,” habeas relief is not

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proper. See Thornton v. Brown, 757 F.3d 834, 841 (9th Cir. Cal. 2014).

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Even if habeas relief were proper, dismissal would be appropriate on the ground that

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petitioner’s claims are not exhausted.3 A district court may not grant a petition for a writ of

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habeas corpus unless “the applicant has exhausted the remedies available in the courts of the

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State,” or unless there is no State corrective process or “circumstances exist that render such

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process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1). A petitioner

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satisfies the exhaustion requirement by presenting the “substance of his federal habeas corpus

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claim” to the state courts. Picard v. Connor, 404 U.S. 270, 278 (1971); see also Duncan v.

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Henry, 513 U.S. 364, 365 (1995). For a California prisoner to exhaust, he must present his claims

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to the California Supreme Court on appeal in a petition for review or on post-conviction in a

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petition for a writ of habeas corpus. See Carey v. Saffold, 536 U.S. 223, 239-40 (2002)

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(describing California’s habeas corpus procedure); Gatlin v. Madding, 189 F.3d 882, 888 (9th

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Cir. 1999) (to exhaust, prisoner must present claims on appeal to California Supreme Court in a

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This challenge may be moot given that petitioner is no longer on parole, but is confined
to state prison. See Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (28 U.S.C. § 2254(a) requires
“that the habeas petitioner be ‘in custody’ under the conviction or sentence under attack at the
time his petition is filed.”).
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For ease of reference, all references to page numbers in the petition are to those assigned
via the court’s electronic filing system.
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The court may raise the failure to exhaust issue sua sponte and may summarily dismiss
on that ground. See Stone v. San Francisco, 968 F.2d 850, 856 (9th Cir. 1992).
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petition for review). Unless the respondent specifically consents to the court entertaining

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unexhausted claims, a petition containing such claims must be dismissed. See 28 U.S.C.

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§ 2254(b)(3); Picard, 404 U.S. at 275.

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Here, the petition identifies a petition filed in the state superior court as petitioner’s only

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post-conviction motion or petition for habeas corpus in state court. ECF No. 1 at 6. According to

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petitioner, “efforts to appeal [the] denial [of that] petition for writ of habeas corpus would be

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futile.” Id. at 5, 9. Petitioner also explains that he never appealed his convictions. Id. at 7, 9, 10.

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Having reviewed the instant petition and its attachments, it is apparent that petitioner failed to

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exhaust state court remedies because his claims have not been presented to the California

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Supreme Court. Further, there is no allegation that state court remedies are no longer available to

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petitioner.

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For these reasons, the petition for a writ of habeas corpus must be summarily dismissed.

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In accordance with the above, IT IS HEREBY ORDERED that petitioner’s application for

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leave to proceed in forma pauperis (ECF No. 2) is granted.

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Further, IT IS HEREBY RECOMMENDED that petitioner’s application for writ of
habeas corpus be summarily dismissed.

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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, any party 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.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. Failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

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Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991). In his objections petitioner may address whether a certificate of appealability should issue

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in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing

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Section 2254 Cases in the United States District Courts (the district court must issue or deny a

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certificate of appealability when it enters a final order adverse to the applicant).

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DATED: April 20, 2017.

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