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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KERRY L. LATHAN,

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No. 2:17-cv-0464 JAM CKD P

Petitioner,
v.

ORDER & FINDINGS AND
RECOMMENDATIONS

MICHAEL MARTEL,

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Respondent.

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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

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the costs of suit. Accordingly, the motion to proceed in forma pauperis will be granted. See 28

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U.S.C. § 1915(a); ECF No. 7.

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I.

FACTS AND PROCEDURAL HISTORY

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On March 2, 2017 petitioner filed a document seeking to appeal a decision of the

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California Supreme Court. ECF No. 1. This court ordered petitioner to file a habeas corpus

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petition on the court approved form within thirty days from the date of the order. ECF No. 3.

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Petitioner complied and filed a 28 U.S.C. § 2254 petition challenging his improper “R” suffix

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designation. The information contained on the form itself is sparse, but the attachments are

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voluminous. In his grounds for relief, petitioner states that the CDCR and BPH unlawfully

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entered an “R” suffix designation in his C-file “which they refuse to remove causing possible life
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endangerment even as evidence proves this allegation totally false.” ECF No. 6 at 4. As his

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second claim for relief petitioner alleges that the use of the “R” suffix designation contradicts the

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findings of the BPH and CDCR.

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The court also takes judicial notice of petitioner’s pending civil rights action in Lathan v.

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CDCR, 2:16-cv-0757 TLN CMK P, which raises the same challenge to his “R” suffix

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designation.

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II.

LEGAL ANALYSIS

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Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254 provides for

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summary dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and

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any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” In the

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instant case, it is plain from the petition and appended exhibits that petitioner is not entitled to

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federal habeas relief on his claims challenging his “R” suffix designation. Therefore, the

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undersigned recommends summarily dismissing the pending habeas petition for the reasons

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outlined below.

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Title 28 U.S.C. § 2254 empowers federal courts to “entertain an application for a writ of

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habeas corpus in behalf of a person in custody pursuant to the judgment of a State court ... on the

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ground that he is in custody in violation of the Constitution or laws or treaties of the United

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States.” See 28 U.S.C. § 2254(a). “[T]he writ of habeas corpus is limited to attacks upon the

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legality or duration of confinement.” Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979)

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(internal citations omitted); see Preiser v. Rodriguez, 411 U.S. 475, 490 (1973) (emphasizing that

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a petition for habeas corpus “is the appropriate remedy for [a] state prisoner[ ] attacking the

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validity of the fact or length of [his] confinement”). Accordingly, “habeas jurisdiction is absent,

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and a [42 U.S.C.] § 1983 action proper, where a successful challenge to a prison condition will

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not necessarily shorten the prisoner's sentence.” Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir.

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2003). While habeas corpus and a civil rights action are not necessarily mutually exclusive,

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Docken v. Chase, 393 F.3d 1024, 1026 (9th Cir. 2004), there must be a sufficient nexus linking

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the challenged prison condition to the duration of the prisoner’s confinement. See Docken, 393

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F.3d at 1028 (quoting Ramirez, 334 F.3d at 858).
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Here, petitioner has chosen to use both habeas corpus and a civil rights action to challenge

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his allegedly improper “R” suffix designation. However, federal law limits him to proceeding

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under 42 U.S.C. § 1983 since there is no allegation that the removal of the “R” suffix designation

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will lead to his speedier release from custody. Petitioner is not challenging his conviction or

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sentence, nor does he allege that the “R” custody designation has affected the length of his

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confinement. While petitioner attached a copy of his May 12, 2015 parole hearing, the court

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notes that the BPH denied parole based on numerous unsuitability factors including the brutal

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manner in which the offense was committed, petitioner’s prior weapons and robbery arrests, his

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unstable social history, his lack of credibility during the hearing, his lack of programming while

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in custody, and a Comprehensive Risk Assessment indicating a moderate risk to reoffend. ECF

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No. 6 at 184-192. Even if petitioner’s “R” suffix was removed from his C-file, the fact and length

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of petitioner’s confinement would remain unchanged. For all of these reasons, the writ of habeas

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corpus is not the proper remedy for seeking redress of petitioner’s “R” suffix designation.

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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.

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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. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” If petitioner files objections, he shall also address whether a

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certificate of appealability should issue and, if so, why and as to which issue(s). Where, as here,

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the petition was dismissed on procedural grounds, a certificate of appealability “should issue if

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the prisoner can show: (1) ‘that jurists of reason would find it debatable whether the district court

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was correct in its procedural ruling’; and (2) ‘that jurists of reason would find it debatable

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whether the petition states a valid claim of the denial of a constitutional right.’” Morris v.

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Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484
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(2000)). Petitioner is advised that failure to file objections within the specified time may waive

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

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Dated: June 1, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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12/lath0464.156.docx

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