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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 TOM M FRANKS, Case No. 1:20-cv-00136-EPG-HC

12 Petitioner, FINDINGS AND RECOMMENDATION TO

GRANT PETITIONER LEAVE TO

13 v. CONVERT PETITION TO CIVIL RIGHTS

ACTION UNDER 42 U.S.C. § 1983

14 SUPERIOR COURT OF STANISLAUS

COUNTY, ORDER DIRECTING CLERK OF COURT

15 TO ASSIGN DISTRICT JUDGE Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. Given that success on Petitioner’s claims would not necessarily 19 lead to his immediate or earlier release from confinement, the undersigned recommends that 20 Petitioner be granted leave to convert his petition for writ of habeas corpus to a civil rights action 21 under 42 U.S.C. § 1983. 22 I. 23 DISCUSSION 24 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 25 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 26 to file a response, if it “plainly appears from the petition and any attached exhibits that the 27 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 A claim falls within the “core of habeas corpus” when a prisoner challenges “the fact or 3 duration of his confinement” and “seeks either immediate release from that confinement or the 4 shortening of its duration.” Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). The Ninth Circuit 5 has held that a “state prisoner’s claim [that] does not lie at ‘the core of habeas corpus’ . . . must 6 be brought, ‘if at all,’ under § 1983.” Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir. 2016) (en 7 banc) (quoting Preiser, 411 U.S. at 487; Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011)). 8 Therefore, if “success on [Petitioner]’s claims would not necessarily lead to his immediate or 9 earlier release from confinement, [Petitioner]’s claim does not fall within ‘the core of habeas 10 corpus,’ and he must instead bring his claim under § 1983.” Nettles, 830 F.3d at 935 (quoting 11 Skinner, 562 U.S. at 535 n.13). 12 In the instant petition, Petitioner challenges the state court’s denial of his motion for 13 DNA testing on the grounds that the state court conducted the hearing on the motion without 14 Petitioner present and that Petitioner was represented by an attorney who had a conflict of 15 interest. (ECF No. 1 at 5, 7, 26–27).1 Success on Petitioner’s claims would not necessarily lead 16 to his immediate or earlier release from confinement. See Skinner, 562 U.S. at 534 (“Success in 17 his suit for DNA testing would not ‘necessarily imply’ the invalidity of his conviction. While test 18 results might prove exculpatory, that outcome is hardly inevitable[.]”). As Petitioner’s claims do 19 not fall within “the core of habeas corpus,” Preiser, 411 U.S. at 487, they must be brought under 20 42 U.S.C. § 1983, Nettles, 830 F.3d at 931. Accordingly, Petitioner has failed to state a 21 cognizable claim for federal habeas corpus relief. 22 B. Conversion to § 1983 Civil Rights Action 23 “If the complaint is amenable to conversion on its face, meaning that it names the correct 24 defendants and seeks the correct relief, the court may recharacterize the petition so long as it 25 warns the pro se litigant of the consequences of the conversion and provides an opportunity for 26 the litigant to withdraw or amend his or her complaint.” Nettles, 830 F.3d at 936 (quoting Glaus 27 v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005)). The Court notes that habeas corpus and 1 prisoner civil rights actions differ in a variety of respects, such as the proper defendants, filing 2 fees, exhaustion requirements, and restrictions on future filings (e.g., the Prison Litigation 3 Reform Act’s three-strikes rule). Nettles, 830 F.3d at 936 (citing Robinson v. Sherrod, 631 F.3d 4 839, 841 (7th Cir. 2011); Glaus, 408 F.3d at 388). 5 If Petitioner chooses to convert the instant matter to a civil rights action, Petitioner will 6 be required to submit a civil rights complaint form that names the proper defendants, seeks 7 appropriate relief, and is signed under penalty of perjury.2 The filing fee for § 1983 civil rights 8 cases is $350, and Petitioner is required to pay the full amount by way of deductions from 9 income to Petitioner’s trust account, even if granted in forma pauperis status. See 28 U.S.C. 10 § 1915(b)(1). Petitioner also may, at his option, voluntarily dismiss his habeas petition without 11 prejudice to refiling his claims as a § 1983 civil rights action. However, Petitioner is forewarned 12 that dismissal and refiling may subject Petitioner to a possible statute of limitations bar as well as 13 other complications as set forth above. 14 II. 15 RECOMMENDATION & ORDER 16 Accordingly, the undersigned HEREBY RECOMMENDS that Petitioner be granted 17 leave to convert his petition for writ of habeas corpus to a civil rights action under 42 U.S.C. 18 § 1983. 19 Further, the Clerk of Court is DIRECTED to randomly assign a District Court Judge to 20 the present matter. 21 This Findings and Recommendation is submitted to the assigned United States District 22 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 23 Rules of Practice for the United States District Court, Eastern District of California. Within 24 THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 25 written objections with the court and serve a copy on all parties. Such a document should be 26 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 27 United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 1 | U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 2 | time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 3 | 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 IT IS SO ORDERED. 6| Dated: _February 10, 2020 ey 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28