Opinion
CV 22-8652-DOC(E)
04-26-2023
CARLOS GALINDO FLORES, Petitioner, v. PATRICK COVELLO, Warden, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable David O. Carter, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On November 28, 2022, Petitioner, a state prisoner, filed a "Petition for Writ of Habeas Corpus By a Person in Federal Custody." By Order filed December 6, 2022, the Court: (1) construed the Petition to constitute a petition for habeas corpus by a person in state custody pursuant to 28 U.S.C. section 2254; and (2) dismissed the Petition with leave to amend.
On January 9, 2023, Petitioner filed the operative "[First Amended] Petition for Writ of Habeas Corpus" ("First Amended Petition"). The First Amended Petition seeks to challenge: (1) a July 7, 2020 decision of the California Board of Parole Hearings ("Board"); and (2) the conditions of Petitioner's confinement. On March 8, 2023, Respondent filed a "Motion to Dismiss, etc." On March 30, 2023, Petitioner filed an "Opposition, etc."
PETITIONER'S CONTENTIONS
The First Amended Petition is not a model of clarity. Petitioner appears to allege:
For ease of reference and analysis, the various claims in the Petition are designated and numbered herein as Claims One through Four.
1. The Board improperly denied Petitioner parole based on: (a) "confidential information" assertedly received "in advance of [the] parole hearing; and (b) assertedly inaccurate and incomplete documentation regarding Petitioner's mental health (Claim One);
2. The Board improperly denied Petitioner's parole suitability for a period of five years (Claim Two);
3. The prison staff wrongly removed Petitioner's "single cell" housing status (Claim Three); and
4. Petitioner allegedly is threatened with harm by the Mexican Mafia (Claim Four).
(First Amended Petition, pp. 3-4).
STANDARD OF REVIEW
Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000) .
Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
The Court assumes arguendo the timeliness of the claims in the First Amended Petition. See Van Buskirk v. Baldwin, 265 F.3d 1080, 1083 (9th Cir. 2001), cert, denied, 535 U.S. 950 (2002) (court may deny on the merits an untimely claim that fails as a matter of law). The Court also need not determine whether Petitioner failed to exhaust available state court remedies. See Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005), cert. denied, 546 U.S. 1172 (2006) (habeas court may deny on the merits unexhausted claims that are not "colorable"). None of Petitioner's claims constitute a "colorable" basis for habeas relief.
For the reasons discussed below, the Court should deny and dismiss the First Amended Petition with prejudice. Petitioner is not entitled to federal habeas relief because he is not "in custody in violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2254(a); Frantz v. Hazey, 533 F.3d at 73637.
Consequently, the Court need not, and does not, determine the extent to which the AEDPA standard of review may apply to any of Petitioner's claims. See Frantz v. Hazey, 533 F.3d at 736-37.
I. Claims One and Two Fail to State Any Cognizable Claim for Federal Habeas Relief.
"There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979) ("Greenholtz"). In some instances, however, state statutes may create liberty interests in parole release entitled to protection under the federal Due Process Clause. See Bd. of Pardons v. Allen, 482 U.S. 369, 371 (1987); Greenholtz, 442 U.S. at 12. The Ninth Circuit has held that California's statutory provisions governing parole create such a liberty interest. See Hayward v. Marshall, 603 F.3d 546, 555 (9th Cir. 2010) (en banc), disapproved on other grounds, Swarthout v. Cooke, 562 U.S. 216 (2011).
In Swarthout v. Cooke, the Supreme Court did not reach the question of whether California law creates a liberty interest in parole, but observed that the Ninth Circuit's affirmative answer to this question "is a reasonable application of our cases." Swarthout v. Cooke, 562 U.S. 216, 219-20 (2011) (citations omitted). The Ninth Circuit has held that Swarthout v. Cooke "did not disturb our conclusion that California law creates a liberty interest in parole." Roberts v. Hartley, 640 F.3d 1042, 1045 (9th Cir. 2011) (citation omitted).
"In the context of parole, . . . the procedures required are minimal." Swarthout v. Cooke, 562 U.S. at 220. Due process requires that the State furnish a parole applicant with an opportunity to be heard and a statement of reasons for a denial of parole. Greenholtz, 442 U.S. at 16. "The Constitution does not require more." Id.; accord Swarthout v. Cooke, 562 U.S. at 220 (citation omitted); Styre v. Adams, 645 F.3d 1106, 1108 (9th Cir. 2011); see also Roberts v. Hartley, 640 F.3d at 1046 ("there is no substantive due process right created by the California's parole scheme").
Petitioner received an opportunity to be heard and a statement of reasons for the denial of parole (see First Amended Petition, pp. 3-4; Opposition, pp. 3-5). "The [federal] Constitution does not require more." Greenholtz, 442 U.S. at 16.
The fact, if it is a fact, that some or all of the matters challenged by Petitioner constitute violations of state law would not entitle Petitioner to federal habeas relief. "Federal habeas will not lie for errors of state law." Hendricks v. Vasquez, 974 F.2d 1099, 1105 (9th Cir. 1992); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) ("it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts") (original emphasis); Moor v. Palmer, 603 F.3d 658, 661 (9th Cir.), cert, denied, 562 U.S. 1049 (2010) (state parole board's alleged violation or misapplication of state law does not constitute any basis for federal habeas relief); see generally 28 U.S.C. § 2254(a).
To the extent Petitioner argues he has the right to receive notice of all evidence the Board might consider, as well as the right to preclude the Board from considering any "confidential information," Greenholtz itself refutes these arguments. In Greenholtz, the state had provided a two-part parole review procedure, consisting of: (1) an initial review hearing at which the parole board examined the inmate's preconfinement and postconfinement record, followed by an informal hearing at which no evidence was introduced but at which the board interviewed the inmate and considered any letters or statements the inmate wished to present; and (2) in the event the board determined that the inmate was a likely candidate for release, a final hearing at which the inmate was permitted to present evidence, call witnesses and be represented by private counsel, but was not permitted to hear adverse testimony or cross-examine witnesses. Greenholtz, 442 U.S. at 4. If the board denied parole, the board would notify the inmate why release was deferred and would make recommendations concerning any deficiencies observed. Id. The Supreme Court ruled that this procedure comported with due process. Id. at 15-16. Thus, Greenholtz itself demonstrates that: (1) due process does not require a parole board to disclose to the inmate, prior to the hearing, evidence which is not supportive of parole; and (2) due process does not preclude a parole board from considering confidential evidence. See, e,g., Urenda v. Hatton, 2017 WL 2335375, at *2 (N.D. Cal. May 30, 2017) ("Greenholtz makes clear that the Board need not specify or share the evidence it has used to make its determination, and so Urenda's claims regarding the Board's use of confidential information lack merit") (footnote omitted); accord, Von Staich v. Ferguson, 2018 WL 3322901, at *7 (E.D. Cal. July 5, 2018); Michal v. Borders, 2017 WL 6942434, at *2 (C.D. Cal. Dec. 11, 2017), adopted, 2018 WL 400746 (C.D. Cal. Jan. 11, 2018).
To the extent Petitioner argues the evidence was insufficient to support the Board's decision and/or that the Board weighed that evidence improperly and/or that the Board failed to give due weight to favorable evidence, such arguments all fail to state any cognizable claim for federal habeas relief. See 28 U.S.C. § 2254(a); Swarthout v. Cooke, 562 U.S. at 220; Frantz v. Hazey, 533 F.3d at 736-37. The California Supreme Court has held, as a matter of state law, that "some evidence" must exist to support a parole denial. In re Lawrence, 44 Cal.4th 1181, 1212, 82 Cal.Rptr.3d 169 (2008); see also In re Shaputis, 53 Cal.4th 192, 221, 134 Cal.Rptr.3d 86 (2011) (in reviewing parole denial, court considers "whether there is a rational nexus between the evidence and the ultimate determination of current dangerousness"). In Swarthout v. Cooke, however, the United States Supreme Court rejected the contention that the federal Due Process Clause contains a guarantee of evidentiary sufficiency with respect to a parole determination. Swarthout v. Cooke, 562 U.S. at 220-21 ("No opinion of ours supports converting California's 'some evidence' rule into a substantive federal requirement."); see also Miller v. Oregon Bd. of Parole, 642 F.3d 711, 717 (9th Cir. 2011) (issue is not whether Board's parole denial was "substantively reasonable," or whether the Board correctly applied state parole standards; issue is simply "whether the state provided Miller with the minimum procedural due process outlined in [Swarthout v.] Cooke"). Accordingly, Swarthout v. Cooke bars any challenge to the sufficiency of the evidence to support the Board's decision in Petitioner's case. See Roberts v. Hartley, 640 F.3d at 1046 (it "makes no difference that [the petitioner] may have been subjected to a misapplication of California's 'some evidence' standard. A state's misapplication of its own laws does not provide a basis for granting a federal writ of habeas corpus."); Pearson v. Muntz, 639 F.3d 1185, 1191 (9th Cir. 2011) ("[Swarthout v. Cooke] makes clear that we cannot consider whether 'some evidence' of dangerousness supported a denial of parole on a petition filed under 28 U.S.C. § 2254."); Robinson v. Hill, 2014 WL 4986619, at *2 (E.D. Cal. Oct. 6, 2014) (under Swarthout, federal habeas court could not review claim based on alleged lack of nexus between Board's denial of parole and petitioner's conduct); Cooper v. Chappell, 2012 WL 3309718, at *1 (N.D. Cal. Aug. 12, 2012) (same).
For the foregoing reasons, Petitioner is not entitled to federal habeas relief on Claims One or Two of the First Amended Petition.
II. Petitioner's Challenges to the Conditions of Confinement (Claims Three and Four) Are Also Not Cognizable Herein.
Claims Three and Four seek to challenge alleged conditions of Petitioner's confinement. As discussed below, habeas corpus is not a proper vehicle for any such challenge.
"Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983." Muhammad v. Close, 540 U.S. 749, 750 (2004). Habeas corpus "is the exclusive remedy . . . for the prisoner who seeks 'immediate or speedier release' from confinement." Skinner v. Switzer, 562 U.S. 521, 525 (2011) (citation omitted). A challenge to the fact or duration of confinement which, if successful, would result in immediate or speedier release falls within the "core" of habeas corpus. Preiser v. Rodriquez, 411 U.S. 475, 487-89 (1973); Nettles v. Grounds, 830 F.3d 922, 927-29 (9th Cir. 2016) (en banc), cert, denied, 137 S.Ct. 645 (2017). However, "if a state prisoner's claim does not lie at 'the core of habeas corpus' [citation], it may not be brought in habeas corpus. ..." Nettles v. Grounds, 830 F.3d at 931 (citation omitted). A civil rights action pursuant to 42 U.S.C. section 1983 action is the exclusive remedy for claims by state prisoners that do not "lie at the core of habeas corpus." Id.
Here, the allegations in Claims Three and Four concern the conditions of Petitioner's confinement and do not implicate the fact or duration of Petitioner's conviction or sentence. Because success on these claims would not result in Petitioner's "immediate or speedier" release from confinement, these claims are not cognizable on federal habeas review. "[H]abeas jurisdiction is absent, and a § 1983 action proper, where a successful challenge to a prison condition will not necessarily shorten the prisoner's sentence." Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003). Thus, while Claims Three and Four conceivably might be brought in a civil rights action under 42 U.S.C. section 1983, these claims may not be brought in a habeas action. See, e,g., Bradway v. Rao, 2021 WL 5525857, at *1-2 (E.D. Cal. Nov. 24, 2021), adopted, 2022 WL 1631227 (E.D. Cal. May 23, 2022) (dismissing habeas petition where prisoner sought release due to COVID-19, prisoner's inadequate mental health treatment, and the prison's refusal to order single-cell housing); Dilbert v. Fisher, 2021 WL 540379 at *2 (E.D. Cal. Jan. 11, 2021), adopted, 2021 WL 1721397 (E.D. Cal. Apr. 30, 2021) (dismissing habeas petition seeking release due to COVID-19 and prisoner's high-risk medical designation); Bowman v. California, 2019 WL 4740538, at *1-2 (C.D. Cal. June 26, 2019), adopted, 2019 WL 4736238 (C.D. Cal. Sept. 27, 2019) (exclusive vehicle for claims related to adequacy of prison medical care is a section 1983 action, even where the prisoner sought release from custody as a remedy).
The Court should decline to exercise its discretion to convert any portion of the First Amended Petition into a civil rights complaint. "[A] habeas corpus action and a prisoner civil rights suit differ in a variety of respects - such as . . . filing fees, the means of collecting them, and restrictions on future filings - that may make recharacterization impossible or, if possible, disadvantageous to the prisoner compared to a dismissal without prejudice of his petition for habeas corpus." Nettles v. Grounds, 830 F.3d at 935-36 (citations and internal quotations omitted); see also id. at 932 n.8 (describing differences between procedural requirements applicable to habeas corpus actions and to civil rights actions). Accordingly, conversion of the First Amended Petition into a civil rights complaint would be inappropriate. See Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005) (court relied on myriad differences between habeas actions and civil rights actions in affirming district court's refusal to recharacterize a habeas petition as a civil rights complaint); Bradway v. Rao, 2021 WL 5525857, at *2 (declining to convert a flawed habeas petition into a civil rights complaint because there are "several significant differences in a proceeding in habeas corpus compared to a civil rights action"); Jorgenson v. Spearman, 2016 WL 2996942, at *1 (C.D. Cal. May 22, 2016) (same).
For the foregoing reasons, Petitioner is not entitled to federal habeas relief on Claims Three or Four of the First Amended Petition.
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the First Amended Petition with prejudice.
The recommended disposition precludes the reassertion of any of Petitioner's claims in any future habeas action. However, the recommended disposition does not preclude the reassertion of Claims Three and Four in a civil rights action.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.