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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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 VICENTE FRANCISCO LOPEZ, 5 No. C 10-4734 CW Plaintiff, 6 v. 7 ORDER GRANTING DEFENDANT'S MOTION TO DISMISS GREG LEWIS, 8 9 Defendant. ________________________________/ United States District Court For the Northern District of California 10 11 Respondent Greg Lewis, Acting Warden of Pelican Bay State 12 Prison (PBSP), moves to dismiss Petitioner Vincent Lopez's 13 petition for a writ of habeas corpus on the grounds that the 14 petition fails to invoke federal habeas corpus jurisdiction and is 15 barred by the one-year statute of limitations and by the principle 16 of procedural default. Petitioner opposes the motion and 17 Respondent has filed a reply. The matter was taken under 18 19 submission and decided on the papers. Having considered all the 20 papers filed by the parties, the Court grants the motion to 21 dismiss. 22 BACKGROUND 23 On July 20, 2007, Petitioner was removed from the general 24 population and placed in administrative segregation because he was 25 suspected of committing battery on another inmate with a weapon. 26 On October 4, 2007, Petitioner appeared before Senior Hearing 27 28 Officer Lt. G.A. Kelley for a disciplinary hearing regarding the 1 July 20, 2007 incident. 2 disciplinary hearing, he was not allowed to call witnesses to 3 testify on his behalf, even though he had requested that they be 4 present. 5 Fourteenth Amendment right to due process by denying him the 6 Petitioner alleges that, at the Petitioner claims that Respondent violated his opportunity to present witnesses at his hearing. 7 On December 25, 2009, Petitioner filed a petition for a writ 8 9 of habeas corpus in the Del Norte County superior court. On United States District Court For the Northern District of California 10 February 26, 2010, the court denied the petition on the ground 11 that Petitioner failed to raise his claims in a timely fashion and 12 did not show that his delay was justified or that it fell within 13 an exception to the timeliness bar. 14 Corpus, HCPB09-5251. In re Lopez, On Habeas On March 18, 2010, the California court of 15 appeal denied Petitioner's petition for a writ of habeas corpus 16 and, on September 15, 2010, the California Supreme Court denied 17 18 the petition, citing In re Robbins, 18 Cal. 4th 770, 780 (1998). DISCUSSION 19 20 21 22 23 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 24 not extend the duration of his time in custody and, thus, this 25 26 27 28 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 2 1 the Constitution or laws or treaties of the United States." 2 U.S.C. § 2254(a). 3 addressed the intersection between 42 U.S.C. 4 § 1983 and writs of habeas corpus and held that “when a state 5 prisoner is challenging the very fact or duration of his physical 6 28 In Preiser v. Rodriguez, the Supreme Court confinement,” and where “the relief he seeks is a determination 7 that he is entitled to immediate release or a speedier release 8 9 from that imprisonment,” the prisoner's “sole federal remedy is a United States District Court For the Northern District of California 10 writ of habeas corpus.” 411 U.S. 475, 500 (1973). Conversely, “a 11 § 1983 action is a proper remedy for a state prisoner who is 12 making a constitutional challenge to the conditions of his prison 13 life, but not to the fact or length of his custody.” 14 Habeas jurisdiction is absent where a successful challenge to a Id. at 499. 15 prison condition will not necessarily shorten the prisoner's 16 sentence. Ramirez v. Galaza 334 F.3d 850, 859 (9th Cir. 2003). 17 18 Petitioner argues that he is not seeking a shorter sentence, 19 but seeks release from solitary confinement to the general 20 population with full privileges. 21 relief he requests, release from solitary confinement, is 22 sufficient to provide this Court with habeas jurisdiction over his 23 petition. Petitioner argues that the Petitioner is incorrect. A release from solitary 24 confinement may make his incarceration more pleasant, but it will 25 26 not reduce the duration of his confinement, which is a 27 prerequisite for federal habeas jurisdiction. 28 his constitutional rights are violated by the conditions of his 3 If Petitioner feels 1 confinement, he may file a civil rights complaint under 42 U.S.C. 2 § 1983, if he is able properly to exhaust his administrative 3 remedies and meet the applicable statute of limitations. 4 5 6 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 7 prejudice to refiling as a § 1983 claim. Because the Court lacks 8 9 jurisdiction over this petition, it need not address Respondent's United States District Court For the Northern District of California 10 additional arguments for dismissal. 11 The Clerk of the Court shall close this case. 12 13 IT IS SO ORDERED. 14 15 16 17 Dated: 3/13/2012 CLAUDIA WILKEN United States District Judge 18 19 20 21 22 23 24 25 26 27 28 4

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