Opinion

(HC) Wilhelm v. People of the State of California

Court
District Court, E.D. California
Filed
Dec 16, 2020
Cited by
0 cases
Authority
More cited than 17.5%

The opinion

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 STEVE WILHELM, Case No. 1:20-cv-01659-EPG-HC

12 Petitioner, FINDINGS AND RECOMMENDATION TO

DISMISS PETITION FOR WRIT OF

13 v. HABEAS CORPUS

14 PEOPLE OF THE STATE OF ORDER DIRECTING CLERK OF COURT

CALIFORNIA, TO ASSIGN DISTRICT JUDGE AND TO

15 SEND PETITIONER PRISONER CIVIL

Respondent. RIGHTS COMPLAINT FORM

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18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

19 pursuant to 28 U.S.C. § 2254. Given that the instant petition is not cognizable in federal habeas

20 corpus, the undersigned recommends that the petition for writ of habeas corpus be dismissed.

21 I.

22 DISCUSSION

23 On November 23, 2020, Petitioner filed the instant petition for writ of habeas corpus,

24 which challenges denial of parole on due process grounds. (ECF No. 1). Rule 4 of the Rules

25 Governing Section 2254 Cases requires preliminary review of a habeas petition and allows a

26 district court to dismiss a petition before the respondent is ordered to file a response, if it “plainly

27 appears from the petition and any attached exhibits that the petitioner is not entitled to relief in

the district court.” See McFarland v. Scott, 512 U.S. 849, 856 (1994).

1 A. Federal Habeas Corpus Jurisdiction

2 By statute, federal courts “shall entertain an application for a writ of habeas corpus in

3 behalf of a person in custody pursuant to the judgment of a State court only on the ground that he

4 is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

5 § 2254(a). A claim falls within the “core of habeas corpus” when a prisoner challenges “the fact

6 or duration of his confinement” and “seeks either immediate release from that confinement or the

7 shortening of its duration.” Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). The Ninth Circuit

8 has adopted the rule that a “state prisoner’s claim [that] does not lie at ‘the core of habeas

9 corpus’ . . . must be brought, ‘if at all,’ under § 1983.” Nettles v. Grounds, 830 F.3d 922, 934

10 (9th Cir. 2016) (en banc) (quoting Preiser, 411 U.S. at 487; Skinner v. Switzer, 562 U.S. 521,

11 535 n.13 (2011)). Therefore, if “success on [Petitioner]’s claims would not necessarily lead to his

12 immediate or earlier release from confinement, [Petitioner]’s claim does not fall within ‘the core

13 of habeas corpus,’ and he must instead bring his claim under § 1983.” Nettles, 830 F.3d at 935

14 (quoting Skinner, 562 U.S. at 535 n.13).

15 In the petition, Petitioner asserts due process violations in connection with the Board of

16 Parole Hearings’ denial of parole. (ECF No. 1 at 5).1 Petitioner contends that “the Board did not

17 consider his insights into the offense and other relevant factors that demonstrates his suitability

18 for parole, including the stressful circumstances and depression Petitioner experienced leading

19 up to the crime and his good postconviction conduct.” (Id.). Petitioner also argues that the Board

20 relied on mischaracterizations of evidence and conjecture and the state reasons for denial were

21 not supported by evidence rationally indicative of current dangerousness. (Id. at 5–6).

22 The Court finds that success on Petitioner’s claims would not necessarily lead to a grant

23 of parole, but rather a new parole hearing. See Richardson v. Bd. of Prison Hearings, 785 F.

24 App’x 433, 434 (9th Cir. 2019) (holding that petition asserting Eighth and Fourteenth

25 Amendment violations arising from denial of request for early parole would not necessarily

26 result in immediate release from prison but rather entitlement to a new parole hearing). Under

27 California law, the parole board must consider all relevant reliable information in determining

1 suitability for parole and has the authority to deny parole on the basis of any grounds presently

2 available to it. Nettles, 830 F.3d at 935. As success on Petitioner’s claims would not necessarily

3 lead to his immediate or earlier release from confinement, these claims do not fall within “the

4 core of habeas corpus,” and thus, are not cognizable in federal habeas corpus. See Nettles, 830

5 F.3d at 935. Accordingly, Petitioner has failed to state cognizable claims for federal habeas

6 corpus relief with respect to his claims challenging the denial of parole, and dismissal is

7 warranted.

8 B. Conversion to § 1983 Civil Rights Action

9 “If the complaint is amenable to conversion on its face, meaning that it names the correct

10 defendants and seeks the correct relief, the court may recharacterize the petition so long as it

11 warns the pro se litigant of the consequences of the conversion and provides an opportunity for

12 the litigant to withdraw or amend his or her complaint.” Nettles, 830 F.3d at 936 (quoting Glaus

13 v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005)). The Court notes that habeas corpus and

14 prisoner civil rights actions differ in a variety of respects, such as the proper defendants, filing

15 fees,2 exhaustion requirements, and restrictions on future filings (e.g., the Prison Litigation

16 Reform Act’s three-strikes rule). Nettles, 830 F.3d at 936 (citing Robinson v. Sherrod, 631 F.3d

17 839, 841 (7th Cir. 2011); Glaus, 408 F.3d at 388).

18 The Court finds that it would be inappropriate to construe the habeas petition as a civil

19 rights complaint under 42 U.S.C. § 1983. Respondent People of the State of California is not the

20 correct defendant in a civil rights action challenging the Board of Parole Hearings’ denial of

21 parole. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“[A] plaintiff must plead that each

22 Government-official defendant, through the official’s own individual actions, has violated the

23 Constitution.”); Krainski v. Nev. ex rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d

24 963, 967 (9th Cir. 2010) (internal quotation marks and citations omitted) (“The Eleventh

25 Amendment bars suits against the State or its agencies for all types of relief, absent unequivocal

26 consent by the state. The Eleventh Amendment jurisdictional bar applies regardless of the nature

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2 The filing fee for § 1983 civil rights cases is $350, and Petitioner is required to pay the full amount by way of

deductions from income to Petitioner’s trust account, even if granted in forma pauperis status. See 28 U.S.C.

1 | of relief sought and extends to state instrumentalities and agencies.”). This conclusion, however,

2 | does not preclude Petitioner from pursuing his claims in a properly filed civil action brought

3 | pursuant to 42 U.S.C. § 1983.

4 I.

5 RECOMMENDATION & ORDER

6 Accordingly, the undersigned HEREBY RECOMMENDS that the petition for writ of

7 | habeas corpus be dismissed for lack of jurisdiction.

8 Further, the Clerk of Court is DIRECTED to randomly assign a District Court Judge to

9 | the present matter and to send Petitioner a prisoner civil rights complaint form.

10 This Findings and Recommendation is submitted to the assigned United States District

11 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local

12 | Rules of Practice for the United States District Court, Eastern District of California. Within

13 | THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file

14 | written objections with the court and serve a copy on all parties. Such a document should be

15 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned

16 | United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28

17 | U.S.C. § 636(b)(1)(C). Petitioner is advised that failure to file objections within the specified

18 | time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d

19 | 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

22| Dated: _ December 16, 2020 [spe ey

3 UNITED STATES MAGISTRATE JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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