Simmons v. Kernan et al

Filing 16

ORDER DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS WITHOUT PREJUDICE. The deputy clerk hereby certifies that on 11/14/2017 a copy of this order was served by sending it via first-class mail to the address of each non-CM/ECF user listed on the Notice of Electronic Filing. Signed by Judge Charles R. Breyer on 11/14/2017. (lsS, COURT STAFF) (Filed on 11/14/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MELVIN JOSEPH SIMMONS, D66671,

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Petitioner,

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United States District Court
Northern District of California

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v.
DAVID BAUGHMAN, Warden, et al.,

Case No. 17-cv-03809-CRB (PR)
ORDER DISMISSING PETITION FOR
A WRIT OF HABEAS CORPUS
WITHOUT PREJUDICE

Respondent(s).
Petitioner, a state prisoner at California State Prison, Sacramento (SAC), filed a pro se

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petition for a writ of habeas corpus under 28 U.S.C. § 2254 purportedly challenging a 2016

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conviction for possession of a weapon in prison from Del Norte County Superior Court.

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But the court dismissed the petition with leave to amend on August 25, 2017 because “the

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claims in the petition – ‘discrimination based on sex, race, religion or national origin,’ restrictions

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on ‘freedom of speech’ and ‘religious freedom,’ and ‘price-fixing’ Pet. at 5, 8 – are conclusory

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and do not even appear cognizable in habeas under § 2254.” Aug. 25, 2017 (ECF No. 8) at 1. The

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court explained:

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“‘Federal law opens two main avenues to relief on complaints
related to imprisonment: a petition for habeas corpus, 28 U.S.C. §
2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat.
§ 1979, as amended, 42 U.S.C. § 1983. Challenges to the
lawfulness of confinement or to particulars affecting its duration are
the province of habeas corpus.’” Hill v. McDonough, 547 U.S. 573,
579 (2006) (quoting Muhammad v. Close, 540 U.S. 749, 750
(2004)). “An inmate’s challenge to the circumstances of his
confinement, however, may be brought under § 1983.” Id.
Habeas is the “exclusive remedy” for the prisoner who seeks
“‘immediate or speedier release’” from confinement. Skinner v.
Switzer, 562 U.S. 521, 533-34 (2011) (quoting Wilkinson v. Dotson,
544 U.S. 74, 82 (2005)). “Where the prisoner’s claim would not
‘necessarily spell speedier release,’ however, suit may be brought
under § 1983.’” Id. In fact, a § 1983 action is the exclusive remedy
for claims by state prisoners that do not “lie at the ‘core of habeas

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corpus.’” Nettles v. Grounds, 830 F.3d 922, 932 (9th Cir. 2016) (en
banc) (quoting Preiser v. Rodriguez, 411 U.S. 475, 487 (1973)).
The instant petition for a writ of habeas corpus will be dismissed
with leave to amend to set forth claims challenging the fact or
duration of petitioner’s confinement, if possible and if that is what
petitioner wishes. But petitioner must “specify all the grounds for
relief available to him” and “state the facts supporting each ground.”
Rule 2(c), Rules Governing Section 2254 Cases in the United States
District Courts, 28 U.S.C. foll. § 2254; see also Hendricks v.
Vasquez, 908 F.2d 490, 491-92 (9th Cir. 1990) (habeas petitioner
must state his claims with sufficient specificity). Conclusory
allegations in a habeas petition fail to state a claim and do not
suffice to shift the burden to the state to answer an order to show
cause. See Allard v. Nelson, 423 F.2d 1216, 1217 (9th Cir. 1970).
If petitioner instead wishes to bring claims regarding the
circumstances of his confinement, or something else outside the core
of habeas corpus, he must do so by filing a new and separate
prisoner civil action under § 1983. See Nettles, 830 F.3d at 932.

United States District Court
Northern District of California

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Aug. 25, 2017 Order at 1-2. The court gave petitioner 28 days to file an amended petition, as set

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forth above, and warned him that “[f]ailure to file a proper amended petition within the designated

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time will result in the dismissal of this action.” Id. at 3.

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Petitioner then filed a motion for relief from the 2016 judgment of conviction from Del

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Norte County Superior Court under Federal Rules of Civil Procedure 59 and 60. The court

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promptly denied the motion on the ground that “a petition for a writ of habeas corpus under 28

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U.S.C. § 2254 is the “exclusive remedy” for a state prisoner seeking “‘immediate or speedier

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release’” from confinement. Skinner v. Switzer, 562 U.S. 521, 533-34 (2011) (quoting Wilkinson

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v. Dotson, 544 U.S. 74, 82 (2005)).” Aug. 29, 2017 Order (ECF No. 10) at 1. And again warned

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petitioner that he had 28 days to file a proper amended petition:

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On August 25, 217, the court dismissed petitioner’s original petition
for a writ of habeas corpus (ECF No. 1) with leave to amend to set
forth claims challenging the fact or duration of his confinement, and
made clear that petitioner must “specify all the grounds for relief
available to him and state the facts supporting each ground.” ECF
No. 8 at 2 (citations and internal quotation marks omitted).
Petitioner is reminded that failure to file a proper amended petition
within the designated time (28 days) will result in the dismissal of
this action.
Aug. 29, 2017 Order at 1-2.

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Petitioner then filed an amended petition (ECF No. 13), again purportedly challenging a

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2016 conviction for possession of a weapon in prison from Del Norte County Superior Court, to
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wh he now indicates he pleaded no contest, but again raisin conclusory claims that do not
hich
i
ng
y
t

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app cogniza under § 2254 – e.g., deprivation of “private real and per
pear
able
n
rsonal proper
rty,” “false

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imp
prisonment,” “bondage, servitude, sl
”
lavery,” “vo marriage ceremony” and “unjust
oid

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enr
richment,” Am. Pet. at 5-6 – and which fail to sh the burde to respon
A
hift
en
ndent to answ an order
wer

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to show cause. See Allard, 423 F.2d at 1217. The amended pe
s
,
t
etition accor
rdingly will b
be

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DIS
SMISSED.

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But in the interest of justice, the dismissal i without pr
t
o
e
is
rejudice to p
petitioner fili a new
ing

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beas action in which he sets forth cla
i
s
aims challen
nging the fac or duration of his conf
ct
n
finement
hab

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wit specificity and suppor
th
y
rting factual allegations.

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United States District Court
Northern District of California

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IT IS SO ORDER
S
RED.
Da
ated: Novem
mber 14, 2017
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__________
___________
__________
________
CH
HARLES R. BREYER
Un
nited States D
District Judg
ge

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