Barajas v. Graves

Filing 22

ORDER (1) Adopting in Part as Modified and Declining to Adopt in Part the 19 Findings and Conclusions of United States Magistrate Judge; (2) Granting in Part and Denying in Part 17 Motion to Dismiss; (3) Dismissing the Petition for a Writ of Habeas Corpus without Prejudice; and (4) Issuing a Certificate of Appealability. Signed by Judge Barry Ted Moskowitz on 8/29/2017. (All non-registered users served via U.S. Mail Service)(mxn)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

RAUL AGUIRRE BARAJAS,

ORDER:

12
Petitioner,

13
14

v.

15
16

W. L. MONTGOMERY, Warden, et
al.,

17
18
19
20
21
22

Case No. 16cv2122-BTM (KSC)

Respondents.

(1) ADOPTING IN PART AS MODIFIED
AND DECLINING TO ADOPT IN PART
THE FINDINGS AND CONCLUSIONS OF
UNITED STATES MAGISTRATE JUDGE;
(2) GRANTING IN PART AND DENYING
IN PART MOTION TO DISMISS;
(3) DISMISSING THE PETITION FOR A
WRIT OF HABEAS CORPUS WITHOUT
PREJUDICE; and
(4) ISSUING A CERTIFICATE OF
APPEALABILITY

23

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a First

24

Amended Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. (ECF

25

No. 11.) He challenges a 2013 prison disciplinary action at Pelican Bay State Prison arising

26

from his participation in a hunger strike, which resulted a guilty finding of willfully

27

delaying a peace officer in the performance of duty, and the forfeiture of ninety days of

28

good conduct custody credits. (Pet. at 1-2, 7-9.) Although Petitioner initially filed this
1
16cv2122-BTM (KSC)

1

action in the District Court for the Northern District of California, where Pelican Bay State

2

Prison is located, it was transferred to this Court because Petitioner is currently incarcerated

3

at Calipatria State Prison, located in the Southern District of California, and the preferred

4

forum for a challenge to the execution of a sentence is the custodial court. (ECF No. 5.)

5

Respondent has filed a Motion to Dismiss the Petition contending that: (a) it is untimely,

6

and (b) this Court lacks habeas jurisdiction because success on Petitioner’s claims will not

7

necessarily result in his speedier release from custody. (ECF No. 17-1 at 2-7.)

8

Presently before the Court is a Report and Recommendation (“R&R”) by United

9

States Magistrate Judge Karen S. Crawford which recommends granting Respondent’s

10

Motion to Dismiss. (ECF No. 19.) The Magistrate Judge found that this action is untimely

11

because it was commenced 41 days after expiration of the one-year statute of limitations,

12

and that the Court lacks habeas jurisdiction because success on his claims will not result in

13

Petitioner’s earlier release from custody. (R&R at 6-12.) No objections to the R&R have

14

been filed.

15

The Court has reviewed the R&R pursuant to 28 U.S.C. § 636(b)(1), which provides

16

that: “A judge of the court shall make a de novo determination of those portions of the

17

report or specified proposed findings or recommendations to which objection is made. A

18

judge of the court may accept, reject, or modify, in whole or in part, the findings or

19

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

20

The Magistrate Judge found that Petitioner is not entitled to statutory tolling during

21

the 70-day gap after the state superior court denied his habeas petition on March 9, 2015,

22

and the filing of his habeas petition in the appellate court on May 18, 2015, on the basis

23

that “precedent dictates” that an unexplained 70-day gap is unreasonable under California

24

law. (R&R at 8-9.) However, this Court is not bound by the unpublished decision of the

25

District Court for the Eastern District of California relied on by the R&R. (R&R at 9.) In

26

addition, the Magistrate Judge, in finding the 70-day delay unreasonable, failed to take into

27

account that Petitioner was apparently still housed at the Pelican Bay Security Housing

28

Unit at the relevant time (see Lodgment No. 3 at 1 [ECF No. 18-3 at 1]), and to consider
2
16cv2122-BTM (KSC)

1

what delays, if any, may have resulted. See Evans v. Chavis, 546 U.S. 189, 199-200 (2006)

2

(finding that delay of over 60 days is presumptively unreasonable, but suggesting that a

3

prison lockdown or other circumstances preventing a prisoner from timely filing could

4

rebut that presumption). The Court therefore declines to adopt the finding that Petitioner

5

is not entitled to statutory tolling during that 70-day gap. A habeas action brought pursuant

6

to 28 U.S.C. § 2254 would be timely under the one-year statute of limitations applicable to

7

such petitions if Petitioner was entitled to statutory tolling for those 70 days. (See R&R at

8

9.) The Court does not need to make a determination, however, because that one-year

9

statute of limitations does not apply to this action. As discussed below, Petitioner may not

10

proceed with his claims on federal habeas, but must present them to a federal court, if at

11

all, in a civil rights Complaint filed pursuant to 42 U.S.C. § 1983, which has a different

12

statute of limitations. Accordingly, the Court DECLINES TO ADOPT the Magistrate

13

Judge’s findings and conclusions regarding the statute of limitations, and DENIES IN

14

PART Respondent’s Motion to Dismiss on statute of limitations grounds.

15

The Magistrate Judge found that Petitioner has failed to invoke this Court’s habeas

16

jurisdiction on the basis that success on the merits of his claims would not necessarily result

17

in his earlier release from custody, because he is statutorily ineligible to accrue custody

18

credits, and because he could be denied parole even if his disciplinary infraction is

19

invalidated. (R&R at 10-12.) With the following modifications, the Court adopts the

20

finding that this Court lacks habeas jurisdiction over Petitioner’s claims.

21

A state prisoner’s claims either lie at “the core of habeas corpus” and are subject to

22

the provisions of the Anti-terrorism and Effective Death Penalty Act (“AEDPA”), or they

23

“challenge[] any other aspect of prison life” and are subject to the provisions of the Prison

24

Litigation Reform Act (“PLRA”) and “must be brought, if at all, under § 1983.” Nettles v.

25

Grounds, 830 F.3d 922, 931 (9th Cir. 2016) (en banc), cert. denied, 137 S.Ct. 645 (2017),

26

citing Preiser v. Rodriguez, 411 U.S. 475, 487 (1973), and Skinner v. Switzer, 562 U.S.

27

521, 535 n.13 (2011). A district court may construe a habeas petition which presents claims

28

which do not lie at the core of habeas as a § 1983 action “after notifying and obtaining
3
16cv2122-BTM (KSC)

1

informed consent from the prisoner.” Id. at 936 (“If the complaint is amenable to

2

conversion on its face, meaning it names the correct defendants and seeks the correct relief,

3

the court may recharacterize the petition so long as it warns the pro se litigant of the

4

consequences of the conversion and provides an opportunity for the litigant to withdraw or

5

amend his or her complaint.”)

6

Petitioner here, as with the California state prisoner in Nettles, is serving an

7

indeterminate term of life imprisonment with the possibility of parole (see Lodgment No.

8

2 at 1 [ECF No. 18-2 at 1]), and, as with Nettles, claims that his federal constitutional rights

9

were violated by the prison disciplinary action, not only because he lost custody credits but

10

because the existence of the disciplinary infraction has the potential to affect future parole

11

proceedings. Nettles, 830 F.3d at 925. The Ninth Circuit found that Nettles’ claim did not

12

lie within the core of habeas corpus because custody credits earned by inmates serving an

13

indeterminate term “go toward advancing only their minimum eligible release date, not

14

their actual release from prison,” and that success “would not necessarily lead to immediate

15

or speedier release because the expungement of the challenged disciplinary violation would

16

not necessarily lead to a grant of parole.” Id. at 934-35 (“A rules violation is merely one

17

of the factors shedding light on whether a prisoner” is suitable for parole); see also Ramirez

18

v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003) (“Here, if successful, Ramirez will not

19

necessarily shorten the length of his confinement because there has been no showing by

20

the State that the expungement [of the disciplinary infraction] Ramirez seeks is likely to

21

accelerate his eligibility for parole.”); see also In re Jenkins, 50 Cal.4th 1167, 1179-80

22

(2010) (noting that a prisoner serving an indeterminate life sentence has his or her

23

minimum parole eligibility date advanced though custody credits, but their actual release

24

from prison is wholly dependent on the parole decision). Thus, because there is no showing

25

that success on the merits would “necessarily” have an effect on the duration of his

26

confinement, Petitioner’s claims do not lie at “the core of habeas corpus” and “must be

27

brought, if at all, under § 1983.” Nettles, 830 F.3d at 927.

28

///
4
16cv2122-BTM (KSC)

1

Accordingly, the Court ADOPTS AS MODIFIED the finding of the Magistrate

2

Judge that Petitioner has not invoked this Court’s habeas jurisdiction, and that his claims

3

must be brought in federal court, if at all, in a civil rights Complaint filed pursuant to 42

4

U.S.C. § 1983. Respondent’s Motion to Dismiss is GRANTED IN PART on that basis,

5

and this action is DISMISSED without prejudice to Petitioner to proceed with his claims,

6

if he wishes, in a civil rights Complaint filed pursuant to 42 U.S.C. § 1983.

7

Although the Court may construe a habeas petition which presents claims which do

8

not lie at the core of habeas as a § 1983 action, “after notifying and obtaining informed

9

consent from the prisoner,” the Court declines to so construe this action. See Nettles, 830

10

F.3d at 936 (“If the complaint is amenable to conversion on its face, meaning it names the

11

correct defendants and seeks the correct relief, the court may recharacterize the petition so

12

long as it warns the pro se litigant of the consequences of the conversion and provides an

13

opportunity for the litigant to withdraw or amend his or her complaint.”) There are no

14

allegations against the named Respondents in this action (the California Attorney General

15

and the Warden of the correctional institution where Petitioner is currently confined, not

16

where he was confined at the time of the disciplinary action), and it is unclear who

17

Petitioner seeks to hold personally responsible for the alleged denial of his federal rights.

18

See e.g. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (“The inquiry into causation

19

must be individualized and focus on the duties and responsibilities of each individual

20

defendant whose acts or omissions are alleged to have caused a constitutional

21

deprivation.”), citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976).

22

Further, venue for such a § 1983 action lies in the Northern District of California,

23

and not in the Southern District of California. A “civil action may be brought in – (1) a

24

judicial district in which any defendant resides, if all defendants are residents of the State

25

in which the district is located; [or] (2) a judicial district in which a substantial part of the

26

events or omissions giving rise to the claim occurred, or a substantial part of property that

27

is the subject of the action is situated[.]” 28 U.S.C. § 1391(b); Costlow v. Weeks, 790

28

F.2d 1486, 1488 (9th Cir. 1986). The Magistrate Judge found that Petitioner could have
5
16cv2122-BTM (KSC)

1

chosen to file a § 1983 action if the AEDPA one-year statute of limitations had not expired.

2

(R&R at 12 n.8.) The Court DECLINES TO ADOPT that finding because the statute of

3

limitations for a § 1983 action is not controlled by AEDPA, and because the limitations

4

period for Petitioner’s § 1983 claim does not appear to expire for several months yet.

5

Petitioner’s claim accrued when he was found guilty of the disciplinary infraction on July

6

25, 2013. Maldonado v. Harris, 370 F.3d 945, 955 (9th Cir. 2004) (“Under federal law, a

7

claim accrues when the plaintiff knows or has reason to know of the injury which is the

8

basis of the action.”) The statute of limitations began tolling 38 days later when Petitioner

9

began exhausting his administrative remedies on September 3, 2013, when he filed his first

10

level grievance (ECF No. 11 at 49), and continued to toll until the final decision at the

11

director’s level of review on December 23, 2013 (id. at 57). See Brown v. Valoff, 422 F.3d

12

926, 943 (9th Cir. 2005) (finding that “the applicable statute of limitations must be tolled

13

while a prisoner completes the mandatory exhaustion process” required by 42 U.S.C.

14

§ 1997e(a)). The effective statute of limitations for most California prisoners is four years,

15

the two year limitations period plus two years statutory tolling due to incarceration. Jones

16

v. Blanas, 393 F.3d 918, 927 (9th Cir. 2002). Although the Court makes no determination

17

regarding the statute of limitations, it appears Petitioner has four years, less 38 days, from

18

December 23, 2013, to timely file a § 1983 action in the Northern District of California if

19

he wishes to do so.

20

Because venue over such an action lies in the Northern District of California and not

21

in this District, because the Petition is not amenable to conversion on its face, because

22

Petitioner has not chosen to proceed with a § 1983 action, and because this action was

23

transferred to this Court from the Northern District, it does not appear that the interests of

24

justice counsel in favor of this Court construing this action as a § 1983 Complaint and

25

transferring it back to the Northern District. In addition to the reasons set forth above, it

26

might also expose Petitioner to the provisions of the PLRA, one of which provides that the

27

entire $350 civil filing fee must be collected even if he qualifies to proceed in forma

28

pauperis, and regardless of whether his action is ultimately dismissed. Bruce v. Samuels,
6
16cv2122-BTM (KSC)

1

577 U.S. ___, 136 S. Ct. 627, 630 (2016). Accordingly, the Court declines to construe this

2

action as a civil rights complaint pursuant to 42 U.S.C. § 1983. See Nettles, 830 F.3d at

3

936.

4

CONCLUSION AND ORDER

5

As set forth above, the Court DECLINES TO ADOPT IN PART and ADOPTS

6

IN PART AS MODIFIED the findings and conclusions of the Magistrate Judge, and

7

GRANTS IN PART and DENIES IN PART Respondent’s Motion to Dismiss. The

8

Petition for a writ of habeas corpus is DISMISSED without prejudice to Petitioner to

9

proceed with his claims, if he wishes, in a Complaint filed in the Northern District of

10

California pursuant to 42 U.S.C. § 1983.

11

The threshold for granting a Certificate of Appealability is “relatively low.”

12

Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002). “[T]he petitioner need not

13

show that he should prevail on the merits,” and the inquiry is “whether jurists of reason

14

would find it debatable whether the district court was correct in its procedural ruling.”

15

Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000). Petitioner may be entitled to

16

a certificate when the “questions are adequate to deserve encouragement to proceed

17

further.” Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983) (citation omitted), superseded

18

on other grounds by 28 U.S.C. § 2253(c)(2). Accordingly, the Court ISSUES a Certificate

19

of Appealability. The Clerk shall enter judgment accordingly.

20
21
22
23
24

DATED: August 29, 2017

_____________________________________
BARRY TED MOSKOWITZ
UNITED STATES DISTRICT JUDGE

25
26
27
28
7
16cv2122-BTM (KSC)