Lathan v. Martel

Filing 8

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 6/1/2017 GRANTING petitioner's 7 motion to proceed IFP; and RECOMMENDING the instant 6 petition for writ of habeas corpus be summarily dismissed. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 KERRY L. LATHAN, 11 12 13 No. 2:17-cv-0464 JAM CKD P Petitioner, v. ORDER & FINDINGS AND RECOMMENDATIONS MICHAEL MARTEL, 14 Respondent. 15 16 17 18 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a motion to proceed in forma pauperis. Examination of the in forma pauperis application reveals that petitioner is unable to afford 19 the costs of suit. Accordingly, the motion to proceed in forma pauperis will be granted. See 28 20 U.S.C. § 1915(a); ECF No. 7. 21 I. FACTS AND PROCEDURAL HISTORY 22 On March 2, 2017 petitioner filed a document seeking to appeal a decision of the 23 California Supreme Court. ECF No. 1. This court ordered petitioner to file a habeas corpus 24 petition on the court approved form within thirty days from the date of the order. ECF No. 3. 25 Petitioner complied and filed a 28 U.S.C. § 2254 petition challenging his improper “R” suffix 26 designation. The information contained on the form itself is sparse, but the attachments are 27 voluminous. In his grounds for relief, petitioner states that the CDCR and BPH unlawfully 28 entered an “R” suffix designation in his C-file “which they refuse to remove causing possible life 1 1 endangerment even as evidence proves this allegation totally false.” ECF No. 6 at 4. As his 2 second claim for relief petitioner alleges that the use of the “R” suffix designation contradicts the 3 findings of the BPH and CDCR. 4 The court also takes judicial notice of petitioner’s pending civil rights action in Lathan v. 5 CDCR, 2:16-cv-0757 TLN CMK P, which raises the same challenge to his “R” suffix 6 designation. 7 II. LEGAL ANALYSIS 8 Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254 provides for 9 summary dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and 10 any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” In the 11 instant case, it is plain from the petition and appended exhibits that petitioner is not entitled to 12 federal habeas relief on his claims challenging his “R” suffix designation. Therefore, the 13 undersigned recommends summarily dismissing the pending habeas petition for the reasons 14 outlined below. 15 Title 28 U.S.C. § 2254 empowers federal courts to “entertain an application for a writ of 16 habeas corpus in behalf of a person in custody pursuant to the judgment of a State court ... on the 17 ground that he is in custody in violation of the Constitution or laws or treaties of the United 18 States.” See 28 U.S.C. § 2254(a). “[T]he writ of habeas corpus is limited to attacks upon the 19 legality or duration of confinement.” Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979) 20 (internal citations omitted); see Preiser v. Rodriguez, 411 U.S. 475, 490 (1973) (emphasizing that 21 a petition for habeas corpus “is the appropriate remedy for [a] state prisoner[ ] attacking the 22 validity of the fact or length of [his] confinement”). Accordingly, “habeas jurisdiction is absent, 23 and a [42 U.S.C.] § 1983 action proper, where a successful challenge to a prison condition will 24 not necessarily shorten the prisoner's sentence.” Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 25 2003). While habeas corpus and a civil rights action are not necessarily mutually exclusive, 26 Docken v. Chase, 393 F.3d 1024, 1026 (9th Cir. 2004), there must be a sufficient nexus linking 27 the challenged prison condition to the duration of the prisoner’s confinement. See Docken, 393 28 F.3d at 1028 (quoting Ramirez, 334 F.3d at 858). 2 1 Here, petitioner has chosen to use both habeas corpus and a civil rights action to challenge 2 his allegedly improper “R” suffix designation. However, federal law limits him to proceeding 3 under 42 U.S.C. § 1983 since there is no allegation that the removal of the “R” suffix designation 4 will lead to his speedier release from custody. Petitioner is not challenging his conviction or 5 sentence, nor does he allege that the “R” custody designation has affected the length of his 6 confinement. While petitioner attached a copy of his May 12, 2015 parole hearing, the court 7 notes that the BPH denied parole based on numerous unsuitability factors including the brutal 8 manner in which the offense was committed, petitioner’s prior weapons and robbery arrests, his 9 unstable social history, his lack of credibility during the hearing, his lack of programming while 10 in custody, and a Comprehensive Risk Assessment indicating a moderate risk to reoffend. ECF 11 No. 6 at 184-192. Even if petitioner’s “R” suffix was removed from his C-file, the fact and length 12 of petitioner’s confinement would remain unchanged. For all of these reasons, the writ of habeas 13 corpus is not the proper remedy for seeking redress of petitioner’s “R” suffix designation. 14 15 16 17 Accordingly, IT IS HEREBY ORDERED that petitioner’s motion to proceed in forma pauperis (ECF No. 7) is granted. IT IS FURTHER RECOMMENDED that the instant petition for a writ of habeas corpus (ECF No. 6) be summarily dismissed. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 20 after being served with these findings and recommendations, petitioner may file written 21 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 22 Findings and Recommendations.” If petitioner files objections, he shall also address whether a 23 certificate of appealability should issue and, if so, why and as to which issue(s). Where, as here, 24 the petition was dismissed on procedural grounds, a certificate of appealability “should issue if 25 the prisoner can show: (1) ‘that jurists of reason would find it debatable whether the district court 26 was correct in its procedural ruling’; and (2) ‘that jurists of reason would find it debatable 27 whether the petition states a valid claim of the denial of a constitutional right.’” Morris v. 28 Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 3 1 (2000)). Petitioner is advised that failure to file objections within the specified time may waive 2 the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: June 1, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 10 11 12/lath0464.156.docx 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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