Lopez v. Jacquez

Filing 10

ORDER GRANTING DEFENDANT'S 6 MOTION TO DISMISS. Signed by Judge Claudia Wilken on 3/13/2012. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 3/13/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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VICENTE FRANCISCO LOPEZ,

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No. C 10-4734 CW

Plaintiff,

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v.

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ORDER GRANTING
DEFENDANT'S MOTION
TO DISMISS

GREG LEWIS,

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Defendant.
________________________________/

United States District Court
For the Northern District of California

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Respondent Greg Lewis, Acting Warden of Pelican Bay State

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Prison (PBSP), moves to dismiss Petitioner Vincent Lopez's

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petition for a writ of habeas corpus on the grounds that the

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petition fails to invoke federal habeas corpus jurisdiction and is

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barred by the one-year statute of limitations and by the principle

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of procedural default.

Petitioner opposes the motion and

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Respondent has filed a reply.

The matter was taken under

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submission and decided on the papers.

Having considered all the

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papers filed by the parties, the Court grants the motion to

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dismiss.

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BACKGROUND

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On July 20, 2007, Petitioner was removed from the general

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population and placed in administrative segregation because he was

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suspected of committing battery on another inmate with a weapon.
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On October 4, 2007, Petitioner appeared before Senior Hearing
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Officer Lt. G.A. Kelley for a disciplinary hearing regarding the

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July 20, 2007 incident.

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disciplinary hearing, he was not allowed to call witnesses to

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testify on his behalf, even though he had requested that they be

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present.

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Fourteenth Amendment right to due process by denying him the

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Petitioner alleges that, at the

Petitioner claims that Respondent violated his

opportunity to present witnesses at his hearing.

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On December 25, 2009, Petitioner filed a petition for a writ
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of habeas corpus in the Del Norte County superior court.

On

United States District Court
For the Northern District of California

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February 26, 2010, the court denied the petition on the ground

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that Petitioner failed to raise his claims in a timely fashion and

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did not show that his delay was justified or that it fell within

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an exception to the timeliness bar.

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Corpus, HCPB09-5251.

In re Lopez, On Habeas

On March 18, 2010, the California court of

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appeal denied Petitioner's petition for a writ of habeas corpus
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and, on September 15, 2010, the California Supreme Court denied
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the petition, citing In re Robbins, 18 Cal. 4th 770, 780 (1998).
DISCUSSION

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I. Cognizable Habeas Claim
Respondent argues that, because Petitioner was sentenced to
life without the possibility of parole, see Respondent's Ex. A,
abstract of state court judgment, his disciplinary proceeding did

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not extend the duration of his time in custody and, thus, this
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Court lacks jurisdiction to adjudicate his claim.
A federal court may entertain a habeas petition from a state
prisoner “only on the ground that he is in custody in violation of
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the Constitution or laws or treaties of the United States."

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U.S.C. § 2254(a).

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addressed the intersection between 42 U.S.C.

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§ 1983 and writs of habeas corpus and held that “when a state

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prisoner is challenging the very fact or duration of his physical

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In Preiser v. Rodriguez, the Supreme Court

confinement,” and where “the relief he seeks is a determination

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that he is entitled to immediate release or a speedier release
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from that imprisonment,” the prisoner's “sole federal remedy is a

United States District Court
For the Northern District of California

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writ of habeas corpus.”

411 U.S. 475, 500 (1973).

Conversely, “a

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§ 1983 action is a proper remedy for a state prisoner who is

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making a constitutional challenge to the conditions of his prison

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life, but not to the fact or length of his custody.”

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Habeas jurisdiction is absent where a successful challenge to a

Id. at 499.

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prison condition will not necessarily shorten the prisoner's
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sentence.

Ramirez v. Galaza 334 F.3d 850, 859 (9th Cir. 2003).

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Petitioner argues that he is not seeking a shorter sentence,

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but seeks release from solitary confinement to the general

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population with full privileges.

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relief he requests, release from solitary confinement, is

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sufficient to provide this Court with habeas jurisdiction over his

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petition.

Petitioner argues that the

Petitioner is incorrect.

A release from solitary

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confinement may make his incarceration more pleasant, but it will
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not reduce the duration of his confinement, which is a

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prerequisite for federal habeas jurisdiction.

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his constitutional rights are violated by the conditions of his
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If Petitioner feels

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confinement, he may file a civil rights complaint under 42 U.S.C.

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§ 1983, if he is able properly to exhaust his administrative

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remedies and meet the applicable statute of limitations.

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Because the Court lacks jurisdiction over this petition,
Respondent's motion to dismiss is granted.

Dismissal is without

leave to amend because amendment would be futile, but without

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prejudice to refiling as a § 1983 claim.

Because the Court lacks

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jurisdiction over this petition, it need not address Respondent's

United States District Court
For the Northern District of California

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additional arguments for dismissal.

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The Clerk of the Court shall

close this case.

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IT IS SO ORDERED.

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Dated: 3/13/2012
CLAUDIA WILKEN
United States District Judge

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