1

2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 12 Case No. CV 19-4405 JAK (MRW) 13 NORMAN PARADA,

ORDER DISMISSING ACTION

14 Petitioner, 15 v. 16 FELIPE MARTINEZ, JR., Warden, 17 Respondent. 18

19 20 The Court dismisses this habeas action for lack of jurisdiction. 21 * * * 22 1. Petitioner is an inmate at the federal prison facility at Lompoc, 23 California. He filed a habeas petition in this Court under 28 U.S.C. § 2241 24 regarding his 2006 federal drug trafficking conviction and sentence in 25 federal court in the District of Kansas. 26 2. Although not entirely clear from the petition (or the 27 supplemental statements that Judge Wilner ordered Petitioner to provide 28 (Docket # 1, 6, 8)), Petitioner appears to contend that: (a) he was originally 1 sentenced based on the improper use of a juvenile conviction and (b) the 2 Bureau of Prisons has misclassified his status within the federal prison 3 system based on that conviction. (Docket # 9.) Petitioner purports to bring 4 this habeas action now based on his alleged recent “discovery” of the 5 presentence report from his 2006 case. (Docket # 1 at 4.) 6 3. This is Petitioner’s fourth habeas action in this district.1 As 7 recounted in the Court’s previous orders, Petitioner has also challenged his 8 conviction and sentence in post-conviction proceedings in the District of 9 Kansas and the Tenth Circuit Court of Appeals on numerous occasions. 10 4. Of note, the Tenth Circuit has “denied three separate motions 11 for authorization to file a second or successive § 2255 motion” after his 12 initial motion. United States v. Parada, 2017 WL 2225228 (D. Kan. 2017) 13 (dismissing additional habeas petition as successive). 14 5. The government moved to dismiss the action on several 15 grounds. (Docket # 10.) The government argues that Petitioner’s action is 16 a disguised Section 2255 motion that Petitioner improperly filed in this 17 district rather than in the District of Kansas. The government contends 18 that the action is successive, and filed without permission from a federal 19 appellate court. Finally, the government asserts that Petitioner’s claim 20 regarding his prison-based classification is not cognizable in federal court. 21 6. Petitioner’s opposition brief focused on the alleged errors in his 22 prison classification score, but provided little additional insight into his 23 claims or to refute the government’s arguments. (Docket # 12.) 24 * * * 25 7. If it “plainly appears from the face of the petition and any 26 exhibits annexed to it that the petitioner is not entitled to relief,” the Court 27 may summarily dismiss a habeas petition. Local Rule 72-3.2; see also 28 1 Nos. CV 12-642, 17-6033, and 18-326 JAK (MRW) (C.D. Cal.). 1 Rules 1 and 4 of Rules Governing Section 2254 Cases in United States 2 District Courts (petition may be summarily dismissed if petitioner plainly 3 not entitled to relief; rule applicable to any type of habeas action); Green v. 4 Fox, No. CV 15-5420 DMG (GJS), 2015 WL 4932822 at *2 (C.D. Cal. 2015) 5 (summary dismissal of improper § 2255 petition). 6 8. Federal prisoners have two statutory paths by which they may 7 seek a writ of habeas corpus. “As a general rule,” federal inmates may 8 collaterally attack their conviction and sentence only under 28 U.S.C. § 9 2255. Alaimalo v. United States, 645 F.3d 1042, 1046 (9th Cir. 2011). 10 9. However, a federal prisoner may also seek a writ under 11 28 U.S.C. § 2241. That statute permits a prisoner to pursue habeas relief 12 where a favorable result (such as the reversal of a disciplinary action and 13 the loss of good time credits) will shorten the prisoner’s sentence. 14 Ramirez v. Galaza, 334 F.3d 850, 858 (9th Cir. 2003); Nettles v. Grounds, 15 830 F.3d 922, 935 (9th Cir. 2016) (en banc) (habeas jurisdiction exists only 16 where success on prisoner’s claims would “lead to his immediate or earlier 17 release from confinement”). 18 10. As with his previous actions in this district, Petitioner’s habeas 19 claims challenging his original criminal sentence may only be brought 20 under Section 2255 in the district of conviction. Petitioner has had ample 21 opportunity to bring those challenges. He is not entitled to further attack 22 his Kansas conviction in this California district court.2 23 11. Petitioner’s contention that he now has access to his 24 presentence report for the first time since his sentencing – the stated basis 25 2 In his earlier cases, the Court explained why Petitioner is not 26 entitled to “escape hatch” consideration of his claim under Section 2241. That analysis need not be repeated here. It is sufficient to note that Petitioner’s latest 27 claim does not include a newly asserted claim of actual innocence to the crime for which he was convicted, which prevents him from converting his claim via the 28 “escape hatch.” Alaimalo, 645 F.3d at 1046. 1 for his current action – further undermines his claim in this district. 2 Section 2255(h) limits a federal prisoner to one post-appeal proceeding. 3 However, as Judge Wilner noted in the original screening order (Docket # 4 4 at 1), “newly discovered” facts or evidence may provide a basis for an 5 appellate court to authorize a successive motion under Section 2255(h)(1). 6 12. Yet, Petitioner’s submissions make clear that he neither sought 7 nor obtained authorization from the Tenth Circuit Court of Appeals to 8 pursue a successive action based on this new information. As a result, this 9 Court does not have jurisdiction over Petitioner’s current, successive claim. 10 13. Moreover, no aspect of Petitioner’s claim against his local 11 custodians can plausibly shorten his time in prison (save for, effectively, 12 resentencing him on his original offense). Ramirez, 334 F.3d at 858. His 13 claim under Section 2241 cannot lead to relief. 14 14. Additionally, the Court cannot adjudicate Petitioner’s 15 contention that the BOP has misclassified him for prison housing or 16 program purposes. A challenge to “the conditions of his confinement rather 17 than the legality of his confinement [ ] is not cognizable on habeas corpus 18 review.” Bazemore v. Entzel, No. ED CV 17-667 MWF (SP), 2018 WL 19 3617882 at *3 (C.D. Cal. 2018) (dismissing claim that inmate’s “custody 20 classification is incorrect”); Franklin v. Gipson, No. CV 12-7411 R (PLA), 21 2013 WL 1339545 (C.D. Cal. 2013) (same); Lerna v. Gutierrez, No. CV 11- 22 7996 PSG (VBK), 2012 WL 1320145 at *3 (C.D. Cal. 2012) (prisoner 23 improperly using Section 2241 to attack “his individualized BOP inmate 24 custodial classification score”; such clams are “not cognizable”). 25 15. Petitioner may potentially have recourse to a civil remedy 26 against the prison or its staff based on his alleged misclassification. 27 However, the Court declines to exercise its authority to convert this 28 1 | petition into a civil rights complaint. Wilwording v. Swenson, 404 U.S. 2 | 249, 251 (1971) (superceded by statute on other grounds). The petition is 3 | too vague in identifying any culpable tortfeasor, does not adequately set 4 | forth all elements of any civil claim, and may not have been properly 5 | exhausted through administrative processes. Moreover, Petitioner would 6 | be liable for a considerably higher filing fee should the Court automatically 7 | convert the petition to a civil complaint. 8 9 Therefore, the present action is hereby DISMISSED without 10 prejudice due to lack of jurisdiction. ll IT IS SO ORDERED. 12 Gin VE 13 | Dated: September 24, 2019 14 JOHN A. KRONSTADT

UNITED STATES DISTRICT JUDGE

15 16 Presented by: 17 18 [ 19

HON. MICHAEL R. WILNER

20 | UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28