1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 KENYON DARRELL BROWN, ) No. 5:20-cv-01775-RGK (JDE) ) 13 Petitioner, ) ) ORDER TO SHOW CAUSE 14 v. ) WHY THE PETITION ) 15 K. SANTORO, Warden, ) SHOULD NOT BE ) DISMISSED ) 16 Respondent. ) ) 17

18 19 I. 20 INTRODUCTION 21 The Court has reviewed the pro se Petition for Writ of Habeas Corpus 22 lodged by Kenyon Darrell Brown (“Petitioner”) with the Ninth Circuit Court 23 of Appeals, transferred to this Court and filed as of August 16, 2020. See Dkt. 24 1 (“Petition” or “Pet.”); Dkt. 2. In the Petition, Petitioner alleges that the 25 California Department of Corrections and Rehabilitation (“CDCR”) 26 discriminates against inmates in the manner in which it awards good conduct 27 credits and provides access to rehabilitative programs under Proposition 57, in 28 1 the midst of overcrowded prison conditions and the high risk of the 2 Coronavirus.1 3 A district court “must promptly examine” the petition and, “[i]f it 4 plainly appears from the petition . . . that the petitioner is not entitled to relief,” 5 the “judge must dismiss the petition.” Rule 4, Rules Governing Section 2254 6 Cases in the United States District Courts (“Habeas Rules”); Mayle v. Felix, 7 545 U.S. 644, 656 (2005). The Court has reviewed the Petition under Rule 4 of 8 the Habeas Rules and finds it is subject to dismissal for the reasons explained 9 below. 10 II. 11 PETITIONER’S CLAIMS 12 1. CDCR “discriminates against inmates” by awarding fifty percent 13 credit to inmates in fire camp while awarding only twenty percent credit to the 14 same violent offenders working on mainline, without providing the mainline 15 inmates with other opportunities to earn good conduct credit at the higher rate. 16 Further, CDCR discriminates in the way it has determined which “violent 17 offenders” are eligible for Proposition 57 status, resulting in “unequal credit 18 earning.” Pet. at 3. 19 2. Petitioner is “suffering ine[q]ualities in credit earning rates and 20 inconsistent access to rehabilitative programming, in the midst of 21 “unconstitutional overcrowded prison conditions corona virus high risk due to 22

23 1 Although Petitioner requests that good conduct credit be awarded at a higher rate for “any inmate with good behavior” (Pet. at 4), it is not clear on the face of the 24 Petition whether he intends to bring the Petition as a class action. Regardless, 25 because a pro se litigant “cannot adequately represent [a] putative class,” the Court construes the Petition as applying only to him. See Fymbo v. State Farm Fire & Cas. 26 Co., 213 F.3d 1320, 1321 (10th Cir. 2000); see also Stout v. Newsom, 2020 WL 27 5110313, at *2 (E.D. Cal. Aug. 31, 2020) (“It is well established that a layperson cannot ordinarily represent the interests of a class,” particularly where the putative 28 class representatives are incarcerated and proceeding pro se.). 1 a lack of social distancing because of a cell-mate[.] AB 3160 calls for the same 2 credit earning for in prison programing.” Pet. at 4. 3 III. 4 DISCUSSION 5 A. Petitioner’s Claims Concerning his Prison Conditions Do Not Fall 6 Within the Core of Habeas Corpus 7 “Federal law opens two main avenues to relief on complaints related to 8 imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint 9 under the Civil Rights Act . . . 42 U.S.C. § 1983.” Muhammad v. Close, 540 10 U.S. 749, 750 (2004) (per curiam). “Challenges to the validity of any 11 confinement or to particulars affecting its duration are the province of habeas 12 corpus; requests for relief turning on circumstances of confinement may be 13 presented in a § 1983 action.” Id. (internal citation omitted). “[T]he essence of 14 habeas corpus is an attack by a person in custody upon the legality of that 15 custody, and . . . the traditional function of the writ is to secure release from 16 illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). The “core of 17 habeas corpus” is an attack on “the fact or duration of his confinement,” in 18 which a prisoner “seeks either immediate release from that confinement or the 19 shortening of its duration.” Id. at 489. The Ninth Circuit has adopted a rule 20 that if “a state prisoner’s claim does not lie at ‘the core of habeas corpus,’ it 21 may not be brought in habeas corpus but must be brought, ‘if at all,’ under 22 § 1983.” Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir. 2016) (en banc) 23 (quoting Preiser, 411 U.S. at 487; Skinner v. Switzer, 562 U.S. 521, 535 n.13 24 (2011)). Therefore, if “success on [Petitioner’s] claims would not necessarily 25 lead to his immediate or earlier release from confinement, [Petitioner’s] claim 26 does not fall within ‘the core of habeas corpus,’ and he must instead bring his 27 claim under § 1983.” Nettles, 830 F.3d at 935 (quoting Skinner, 562 U.S. at 28 535 n.13). 1 Here, Petitioner, who is currently incarcerated at North Kern State 2 Prison (the “Prison”), is serving a ten-year sentence imposed by the San 3 Bernardino County Superior Court in November 2019. He contends that the 4 CDCR discriminates in the manner in which it awards good conduct credit, 5 claiming that good conduct credit should be earned at the same rate regardless 6 of whether the inmate works in the “mainline” at the Prison or a “fire camp” 7 and regardless of the nature of the underlying criminal conviction. Petitioner 8 further contends that CDCR provides inconsistent access to rehabilitative 9 programs, which is unconstitutional in the midst of overcrowding and the risk 10 of the Coronavirus. Petitioner requests that his good conduct credit be 11 calculated at the higher fifty percent rate. Pet. at 4. 12 At least with respect to his claims challenging the lack of access to 13 rehabilitative programs and overcrowding, success on these claims would not 14 result in an immediate or speedier release from custody. See Nettles, 830 F.3d 15 at 933 (explaining that “prisoners may not challenge mere conditions of 16 confinement in habeas corpus”); Shook v. Apker, 472 F. App’x 702, 702-03 17 (9th Cir. 2012) (finding claims on conditions of confinement were properly 18 brought in a civil rights action despite the relief sought); Stephens v. Cty. of 19 San Bernardino, 2019 WL 1412123, at *1 (C.D. Cal. Feb. 20, 2019) 20 (concluding that conditions of confinement claims must be brought in Section 21 1983 action regardless of the petitioner’s request for release from custody), 22 report and recommendation accepted by 2019 WL 1406954 (C.D. Cal. Mar. 23 27, 2019); Crane v. Beard, 2017 WL 1234096, at *4 (C.D. Cal. Apr. 3, 2017) 24 (finding that claim challenging the petitioner’s conditions of confinement was 25 not cognizable on federal habeas review). As such, these claims do not fall 26 within “the core of habeas corpus” and Petitioner must instead pursue these 27 claims, if at all, in a Section 1983 action. 28 1 As to Petitioner’s claims challenging the calculation of good conduct 2 credit, at least one district court has found that claims challenging the denial of 3 good conduct credit to a determinate sentence under Proposition 57 fell 4 “outside the core of habeas corpus.” See Blanco v. Asuncion, 2019 WL 5 2144452, at *3 (S.D. Cal. May 16, 2019), report and recommendation adopted 6 by 2019 WL 3562215 (S.D. Cal. Aug. 6, 2019). In that case, the petitioner 7 alleged that his right to earn good conduct credit under Proposition 57 was 8 being withheld and due process required that good conduct credits under 9 Proposition 57 be applied retroactively. Id. at *2. The court concluded that, 10 even if the petitioner could establish that he was entitled to accrue good 11 conduct credits, it would not necessarily lead to his immediate or earlier 12 release from confinement because good conduct credits are not guaranteed and 13 are only awarded for satisfactory conduct and participation. Id. at *3. The 14 district court explained that CDCR would still need to determine whether 15 those credits should be awarded and credit could be denied if petitioner’s 16 conduct or participation did not satisfy applicable standards. Id. 17 Thus, to the extent Petitioner contends he is being denied good conduct 18 credits, it appears such claims would not fall within the core of habeas corpus. 19 However, Petitioner also challenge the calculation of credits, alleging that 20 good conduct credits earned in mainline should be calculated at the same rate 21 as those credits are calculated for inmates working in the fire camp. Such claim 22 arguably falls within the core of habeas corpus as a higher award of good 23 conduct credits would advance Petitioner’s release date. See 15 Cal. Code 24 Regs., § 3043.2(b) (the award of good conduct credits “shall advance an 25 inmate’s release date if sentenced to a determinate term”). Even if Petitioner 26 could pursue this claim in the instant Petition, however, several other pleading 27 defects exist. 28 1 B. Pursuit of the Instant Petition May Bar Petitioner from Further 2 Seeking Relief Regarding His 2019 Conviction 3 State habeas petitioners generally may file only one federal habeas 4 petition challenging a particular state conviction and/or sentence. See 28 5 U.S.C. § 2244(b). A habeas petition is second or successive if “it raises claims 6 that were or could have been adjudicated on the merits” in an earlier Section 7 2254 petition. McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009); Cooper 8 v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001) (per curiam). In those 9 instances when Section 2244(b) provides a basis for pursuing a second or 10 successive Section 2254 petition, the petitioner must first obtain authorization 11 from the Ninth Circuit before seeking relief in the district court. 28 U.S.C. 12 § 2244(b)(3). 13 In his Petition, Petitioner identifies two underlying convictions (Case 14 Nos. FWV18004486 and FSB17001255) and a ten-year prison sentence, which 15 corresponds to Case No. FWV18004486.2 Petitioner filed a habeas petition in 16 2019 and another earlier this year challenging one or both of these underlying 17 convictions. See Brown v. People of the State of California, Case No. 5:19-cv- 18 02507-RGK-PJW (referencing Case Nos. FWV18004486 & FSB17001255); 19 20 2 Petitioner indicates that he has “concurrent cases,” referring to Case No. 21 FSB17001255 as the non-controlling case. Pet. at 5. It appears from the San Bernardino County Superior Court’s online docket that on November 14, 2019, 22 Petitioner was sentenced to a ten-year prison term in Case No. FWV18004486 and a 23 four-year prison term in Case No. FSB17001255. See Superior Court of California – County of San Bernardino (“SBSC”) at https://portal.sb-court.org. The Court takes 24 judicial notice of the relevant state court records available electronically for the state 25 courts pursuant to Federal Rule of Evidence 201. See Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002) (taking judicial notice of opinion and briefs filed in another 26 proceeding); United States ex rel. Robinson Rancheria Citizens Council v. Borneo, 27 Inc., 971 F.2d 244, 248 (9th Cir. 1992) (courts “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings 28 have a direct relation to matters at issue” (citation omitted)). 1 Brown v. United States District Court, Case No. 5:20-cv-01222-RGK-JDE 2 (referencing Case No. FWV18004486). Both cases were dismissed without 3 prejudice because Petitioner’s direct appeal was pending in the California 4 Court of Appeal, rendering his claims unexhausted (Case No. 5:19-cv-02507- 5 RGK-JDE) and subject to Younger abstention (Case No. 5:20-cv-01222-RGK- 6 JDE). 7 To the extent Petitioner desires to further pursue the claims asserted in 8 these earlier habeas petitions, Petitioner is advised that by pursuing the instant 9 Petition at this time he may be barred from raising these earlier challenges at a 10 later date and any subsequent petition challenging his 2019 conviction and/or 11 sentence may be deemed a second or successive petition. The Court expresses 12 no opinion at this time whether a subsequent petition would be second or 13 successive or whether Petitioner would be barred from later pursuing habeas 14 relief regarding that conviction. However, because the current Petition 15 challenges only the award of good conduct credit and state review of the 16 conviction in Case No. FWV1800486 remains pending, the Court provides 17 Petitioner an opportunity to voluntarily dismiss this action without prejudice 18 pursuant to Federal Rule of Civil Procedure 41(a) prior to any further action in 19 this matter. 20 C. Younger Abstention is Warranted 21 Additionally, putting aside whether Petitioner will be able to pursue 22 claims regarding his 2019 conviction and sentence at a later date, the instant 23 Petition appears to suffer from the same defect as Case No. 5:20-cv-01222- 24 RGK-JDE, namely, the Petition appears potentially subject to abstention 25 under Younger v. Harris, 401 U.S. 37 (1971). Under the Younger abstention 26 doctrine, a federal court will not intervene in a pending state criminal 27 proceeding absent extraordinary circumstances. Id. at 43-54. Younger 28 abstention is appropriate when: (1) the state court proceedings are ongoing; (2) 1 the proceedings implicate important state interests; and (3) the state 2 proceedings provide an adequate opportunity to raise federal questions. Baffert 3 v. Cal. Horse Racing Bd., 332 F.3d 613, 617 (9th Cir. 2003). The Younger 4 rationale applies throughout appellate proceedings, requiring that state 5 appellate review of a conviction be exhausted before federal court intervention 6 is permitted. Huffman v. Pursue, Ltd., 420 U.S. 592, 607-611 (1975); Dubinka 7 v. Judges of the Superior Court of the State of Cal., 23 F.3d 218, 223 (9th Cir. 8 1994) (stating that even if the trial was complete at the time of the court’s 9 decision, state court proceedings were still considered pending for Younger 10 abstention purposes). 11 Here, it appears all Younger criteria are present. Petitioner’s current 12 Petition appears to implicate his underlying 2019 state court conviction, in 13 part, because he challenges whether he is entitled to certain good conduct 14 credit authorized by Proposition 57 based on the nature of his underlying 15 conviction, which he is currently challenging in state court. Petitioner concedes 16 his direct appeal is pending (Pet. at 5-6), which is confirmed by the California 17 Court of Appeal’s online docket. See Cal. Courts, Appellate Courts Case 18 Information at https://appellatecases.courtinfo.ca.gov. Additionally, a state’s 19 task of enforcing its laws against socially harmful conduct is “important and 20 necessary,” Younger, 401 U.S. at 51-52, and as such, the state proceedings 21 implicate important state interests. Finally, it appears Petitioner has an 22 adequate state forum in which to pursue his claims. See Pennzoil Co. v. 23 Texaco, Inc., 481 U.S. 1, 15 (1987) (“[W]hen a litigant has not attempted to 24 present his federal claims in related state-court proceedings, a federal court 25 should assume that state procedures will afford an adequate remedy, in the 26 absence of unambiguous authority to the contrary.”). As such, this Court must 27 abstain from intervening in the ongoing state criminal proceedings absent 28 extraordinary circumstances. Canatella v. California, 404 F.3d 1106, 1109-10 1 (9th Cir. 2005). Abstention is not appropriate if the state proceedings are being 2 undertaken in bad faith, to harass, or are based on “flagrantly and patently” 3 unconstitutional state rules, or where some other extraordinary circumstance is 4 present. See Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 5 U.S. 423, 435-37 (1982). Additionally, irreparable injury alone is insufficient to 6 warrant federal intervention unless the irreparable injury is both great and 7 immediate. See Younger, 401 U.S. at 46. Here, it does not appear that the 8 circumstances of Petitioner’s case fall within any recognized exception to the 9 Younger doctrine. For the foregoing reasons, it appears that Younger 10 abstention may be appropriate in this case. 11 D. The Claims Do Not Raise a Cognizable Federal Question 12 “In conducting habeas review, a federal court is limited to deciding 13 whether a conviction violated the Constitution, laws, or treaties of the United 14 States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991); Smith v. Phillips, 455 U.S. 15 209, 221 (1982) (“A federally issued writ of habeas corpus, of course, reaches 16 only convictions obtained in violation of some provision of the United States 17 Constitution.”). A habeas petitioner is required to set forth the grounds for 18 relief and the facts supporting each ground. See Habeas Rules, Rule 2(c); Felix, 19 545 U.S. at 649 (“Rule 2(c) . . . requires a . . . detailed statement. The habeas 20 rule instructs the petitioner to ‘specify all the grounds for relief available to 21 [him]’ and to ‘state the facts supporting each ground’” (quoting Rule 2(c)). 22 Here, Petitioner vaguely alleges that CDCR’s actions are “unconstitutional” 23 (Pet. at 3), but provides no legal basis to support this claim. In the absence of a 24 specific constitutional basis for his claims, Petitioner’s vague and conclusory 25 allegations are insufficient to warrant habeas relief. See Greenway v. Schriro, 26 653 F.3d 790, 804 (9th Cir. 2011) (petitioner’s “cursory and vague” claim was 27 insufficient to warrant habeas relief). 28 1 Additionally, to the extent Petitioner’s allegation that CDCR 2 “discriminates against inmates” (Pet. at 3) can be construed as an equal 3 protection claim, Petitioner must allege facts plausibly showing that “the 4 defendants acted with an intent or purpose to discriminate against the plaintiff 5 based upon membership in a protected class.” Barren v. Harrington, 152 F.3d 6 1193, 1194 (9th Cir. 1998). Petitioner has not sufficiently alleged facts showing 7 that membership in a protected class was the basis of any alleged 8 discrimination or that he was intentionally treated in a different manner than 9 any similarly situated individuals. See United States v. Whitlock, 639 F.3d 10 935, 941 (9th Cir. 2011) (explaining that “neither prisoners nor ‘persons 11 convicted of crimes’ constitute a suspect class for equal protection purposes”); 12 McQuery v. Blodgett, 924 F.2d 829, 834-35 (9th Cir. 1991) (“a mere 13 demonstration of inequality is not enough; the Constitution does not require 14 identical treatment”). As such, Petitioner has not stated a claim cognizable on 15 federal habeas review. 16 E. Other Defects 17 The Petition also suffers from several other defects. 18 First, it is written on a California state court form, not a form approved 19 by this District. Federal district courts can require habeas petitions to be filed 20 on approved forms, and this district requires such petitions to proceed only on 21 approved forms. See Habeas Rule 2(d); Central District Local Civil Rule 83- 22 16.1 (“A petition for writ of habeas corpus . . . shall be submitted on the forms 23 approved and supplied by the Court.”). 24 Second, Petitioner did not pay the $5 filing fee for a federal habeas 25 petition and did not file an application to proceed without prepayment of the 26 filing fee (“IFP Application”) as required by 28 U.S.C. § 1915. 27 The Court will take up these defects, if necessary, depending upon 28 Petitioner’s response to the Order below. 1 F. Converting the Petition into a Civil Rights Complaint is Not 2 Warranted 3 The Court recognizes that there are some circumstances in which it may 4 be appropriate for a district court to convert a non-cognizable habeas petition 5 into a civil rights complaint under 42 U.S.C. § 1983. See Nettles, 830 F.3d at 6 935-36. However, the Court finds this action is not amenable for such 7 conversion for a number of reasons. First, simultaneously proceeding with 8 habeas and civil rights claims in a single action likely is improper. See Malone 9 v. Calderon, 165 F.3d 1234, 1236-37 (9th Cir. 1999) (declining to consolidate 10 federal habeas and civil rights actions, stating that “the risk of confusion of the 11 issues inherent in consolidation of the habeas and civil rights cases weighs 12 against consolidation”); McGowan v. Hendrick, 2014 WL 791802, at *3 (C.D. 13 Cal. Feb. 19, 2014) (declining to convert habeas petition into civil rights action 14 where operative pleading contained both civil rights and habeas claims). 15 Second, prisoner civil rights actions are subject to different requirements (and 16 higher filing fees) than are federal habeas proceedings. The petition must be 17 amenable to conversion “on its face,” that is, it must name the correct 18 defendants and seek the correct relief. See Nettles, 830 F.3d at 936. As pled, 19 Petitioner’s claims potentially would be subject to dismissal for failure to state 20 a claim upon which relief may be granted, which could subject him to a 21 “strike” under 28 U.S.C. § 1915(g). 22 IV. 23 ORDER 24 For the foregoing reasons, Petitioner is ORDERED TO SHOW CAUSE 25 in writing by no later than thirty (30) days from the date of this Order why the 26 Petition should not be dismissed for reasons explained above. 27 Alternatively, Petitioner may voluntarily dismiss this action by signing 28 and returning the attached Notice of Dismissal under Federal Rule of Civil 1 || Procedure 41(a). The Clerk is directed to provide a form Notice of Dismissal 2 || with this Order. 3 The Court cautions Petitioner that failure to timely comply with this 4 || Order may result in the Court recommending the action be dismissed for 5 failure to prosecute and failure to comply with a Court order. 6 7 3 Dated: September 15, 2020 if de, ? N D. EARLY 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12