“when a prisoner’s claim 15 would not ‘necessarily spell speedier release,’ that claim does not lie at ‘the core of 16 habeas corpus,’ and may be brought, if at all, under § 1983”
How later courts described this case
- “when a prisoner’s claim 15 would not ‘necessarily spell speedier release,’ that claim does not lie at ‘the core of 16 habeas corpus,’ and may be brought, if at all, under § 1983”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 CORKEY DENNIS OGLE, Case No.: 3:20-cv-1115-LAB(KSC)
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Petitioner, REPORT AND RECOMMENDA-
13 v. TION RE RESPONDENT’S MOTION
TO DISMISS FOR FAILURE TO
14 MARCUS POLLARD,
STATE A CLAIM
15 Respondent.
[Doc. No. 20]
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20 Petitioner Corkey Dennis Ogle, a state prisoner proceeding pro se, has filed a
21 Petition for Writ of Habeas Corpus pursuant to Title 28, United States Code, Section
22 2254. Before the Court are respondent’s Motion to Dismiss the Petition for Writ of
23 Habeas Corpus [Doc. No. 20]; petitioner’s Opposition; [Doc. No. 22]; and petitioner’s
24 Supplemental Opposition [Doc. No. 26]. For the reasons outlined below, IT IS
25 RECOMMENDED that the District Court GRANT respondent’s Motion to Dismiss the
26 Petition [Doc. No. 20].
27 / / /
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1 Background
2 Petitioner is currently serving a seven-year to life sentence for murder, robbery,
3 kidnapping, and assault with a deadly weapon. [Doc. No. 4, at p. 1.] He claims he has
4 been in prison for more than 42 years and is over 70 years old. [Doc. No. 4, at pp. 1, 17.]
5 Petitioner challenges a September 4, 2019 decision denying him parole under California’s
6 Elderly Parole Program. [Doc. No. 4, at p. 17.]
7 Discussion
8 I. Motion to Dismiss Standards.
9 A motion to dismiss under Federal Rule 12(b)(6) may be based on either a “lack of
10 a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable
11 legal theory.” Johnson v. Riverside Healthcare System, 534 F.3d 1116, 1122 (9th Cir.
12 2008).
13 II. Denial of Parole Under California’s Elderly Parole Program.
14 Petitioner contends that his Federal Constitutional rights to Due Process and Equal
15 Protection were violated when he was denied parole under California’s Elderly Parole
16 Program, which was implemented to address prison overcrowding. According to
17 petitioner, this program requires the Parole Board to give special consideration to certain
18 factors and to prepare a risk assessment to determine whether parole would be
19 appropriate. [Doc. No. 4, at p. 20.] Petitioner believes parole was denied in his case,
20 because the Parole Board did not give special consideration to all relevant factors,
21 including petitioner’s advanced age, his long-term confinement, and his diminished
22 physical capacity. [Doc. No. 4, at p. 21.] Because of his long-term confinement, it is
23 petitioner’s view the Parole Board should have considered this “compelling” evidence
24 that he has “undergone cruel and unusual punishment.” [Doc. No. 4, at p. 21.] He also
25 believes the risk assessment prepared by clinical psychologists was “full of false
26 information.” [Doc. No. 4, at p. 21.] In addition, petitioner contends the Parole Board
27 improperly relied on his 43-year claim of “actual innocence.” [Doc. No. 4, at p. 21.]
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1 In the Motion to Dismiss, respondent argues petitioner has not stated a claim for
2 which Federal habeas corpus relief can be granted. Respondent contends that petitioner’s
3 parole denial claim is not a cognizable claim for Federal habeas corpus relief, because
4 resolution of this issue would not necessarily reduce the duration of his sentence or
5 require his immediate release. [Doc. No. 20, at p. 5.] Respondent is correct.
6 A Federal Court “shall entertain an application for a writ of habeas corpus in
7 behalf of a person in custody pursuant to the judgment of a State court only on the ground
8 that he is in custody in violation of the Constitution or laws or treaties of the United
9 States.” 28 U.S.C.A. § 2254(a). “[I]f a state prisoner’s claim does not lie at ‘the core of
10 habeas corpus’ . . . it may not be brought in habeas corpus but must be brought, ‘if at all,’
11 under § 1983.” Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir. 2016). A petitioner’s
12 claim does not fall within “the core of habeas corpus” if success on the merits “would not
13 necessarily lead to his immediate or earlier release from confinement.” Nettles, 830 F.3d
14 at 935, citing Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011) (“when a prisoner’s claim
15 would not ‘necessarily spell speedier release,’ that claim does not lie at ‘the core of
16 habeas corpus,’ and may be brought, if at all, under § 1983”).
17 The petitioner in Nettles, who was serving a life sentence in state prison, filed a
18 habeas petition in Federal Court challenging a disciplinary violation on Federal
19 constitutional grounds. Nettles, 830 F.3d at 924. He argued that his eligibility for parole
20 would be affected if the disciplinary violation was not expunged from his record. Id. at
21 924-925. The Ninth Circuit upheld the dismissal of the petitioner’s claim, reasoning that
22 success on the merits of his claim “would not necessarily lead to immediate or speedier
23 release because the expungement of the challenged disciplinary violation would not
24 necessarily lead to a grant of parole.” Id. at 934. As the Ninth Circuit in Nettles
25 explained, California law requires the parole board to consider “all relevant, reliable
26 information” to determine suitability for parole. The subject disciplinary violation was
27 only one factor, and the parole board could deny parole “on the basis of any of the
28 grounds presently available to it.” Id. at 935.
1 As in Nettles, 830 F.3d at 934, the parole board in this case would still need to
2 consider “all relevant, reliable information” to determine “suitability for parole.” Id. at
3 935. The parole board could then deny parole “on the basis of any of the grounds
4 presently available to it.” Id. Therefore, petitioner’s claim falls “outside the core of
5 habeas corpus.” Id. at 934. There is nothing in the arguments and information provided
6 in petitioner’s Opposition and Supplemental Opposition that would change the nature of
7 his claim. Under these circumstances, IT IS RECOMMENDED that the District Court
8 DISMISS petitioner’s claim that his Constitutional rights were violated, because he was
9 denied parole under California’s Elderly Parole Program.
10 III. State Law Error.
11 Respondent also argues that petitioner has not stated a cognizable claim for relief
12 under the Federal Constitution, because the Petition only raises a potential violation of
13 state law that does not involve a Federal question. According to respondent, petitioner’s
14 mere reference to general legal concepts, such as Due Process, Equal Protection, and
15 Cruel and Unusual Punishment, do not transform his state law claim into a Federal
16 constitutional issue. [Doc. No. 4, at pp. 3-4.] Respondent is correct.
17 “A mere error of state law is not a denial of due process.” Swarthout v. Cooke, 562
18 U.S. 216, 222 (2011) (internal quotations omitted). Merely asserting violations of Due
19 Process cannot “transform a state-law issue into a federal one.” Langford v. Day, 110
20 F.3d 1380, 1389 (9th Cir. 1996). Here, the gravamen of petitioner’s claim is that
21 California regulations implementing the Elderly Parole Program have been misapplied in
22 his case. As the Supreme Court held in Swarthout v. Cooke, 562 U.S. 216, it is not this
23 Court’s role to determine whether California’s laws or regulations were correctly applied
24 in petitioner’s case. Id. at 222. For this additional reason, IT IS RECOMMENDED that
25 the District Court DISMISS the Petition to the extent it seeks a determination based on
26 California law and regulations that petitioner was erroneously denied the benefits of
27 parole consideration under California’s Elderly Parole Program.
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1 Conclusion
2 Based on the foregoing, IT IS RECOMMENDED that the District Court GRANT
3 || respondent’s Motion to Dismiss [Doc. No. 20] “for failure to state a claim upon which
4 ||relief can be granted.” Fed.R.Civ.P. 12(b)(6).
5 This Report and Recommendation is submitted to the assigned United States
6 || District Judge pursuant to Title 28, United States Code, Section 636(b), and Civil Local
7 || Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of
8 || California.
9 IT IS HEREBY ORDERED that no later than March 22, 2021 any party to this
10 || action may file and serve written objections to this Report and Recommendation. The
11 document should be captioned “Objection to Report and Recommendation.”
12 IT IS FURTHER ORDERED that any reply to objections shall be filed and served
13 ||no later than March 29, 2021. The parties are advised that failure to file objections
14 || within the specified time may waive the right to raise those objections on appeal of this
15 Court Order. Martinez v. Yist, 951 F.2d 1153, 1156 (9th Cir. 1991).
16 IT IS SO ORDERED.
17 || Dated: February 22, 2021 te “iy )
18 Mfficae _———_
19 Hori. Karen S. Crawford
United States Magistrate Judge
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