Bailey v. Koening

• Court: District Court, N.D. California
• Decided: December 4, 2020
• Docket: 3:20-cv-04428
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JASPER BAILEY, G60744, Case No. 20-cv-04428-CRB (PR)

8 Petitioner, ORDER DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS AND 9 v. DENYING A CERTIFICATE OF APPELABILITY 10 C. KOENIG, Warden, (ECF Nos. 2, 4 & 5) 11 Respondent.

12 I. 13 Petitioner, a state prisoner incarcerated at the Correctional Training Facility in Soledad, 14 California pursuant to a 2009 criminal judgment from Santa Clara County Superior Court, has 15 filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the state 16 courts’ recent denial of his motion for DNA testing pursuant to California Penal Code § 1405. 17 Petitioner also seeks leave to proceed in forma pauperis (IFP) and appointment of counsel. 18 Based solely on petitioner’s affidavit of poverty, his application for leave to proceed IFP 19 (ECF Nos. 2 & 5) is GRANTED. 20 II. 21 Federal law opens two main avenues to relief on claims related to imprisonment: a petition 22 for a writ of habeas corpus under 28 U.S.C. § 2254, and a complaint for violation of federal civil 23 rights under 42 U.S.C. § 1983. Hill v. McDonough, 547 U.S. 573, 579 (2006). Habeas is the 24 “exclusive remedy” for the prisoner who seeks “immediate or speedier release from confinement.” 25 Skinner v. Switzer, 562 U.S. 521, 525 (2011) (citation and internal quotation marks omitted). 26 Where the prisoner’s claim “would not necessarily spell speedier release, however, suit may be 27 brought under § 1983.” Id. (citation and internal quotation marks omitted). In fact, a § 1983 action 1 corpus.’” Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016) (en banc) (quoting Preiser v. 2 Rodriguez, 411 U.S. 475, 487 (1973)). 3 Here, petitioner challenges the state courts’ recent denial of his motion for DNA testing of 4 “potentially exculpatory evidence” under California Penal Code § 1405. Pet. (ECF No. 1) at 7. 5 But success on petitioner’s challenge would not necessarily lead to his immediate or earlier release 6 from confinement. See Skinner, 562 U.S. at 534 (“Success in . . . suit for DNA testing would not 7 ‘necessarily imply’ the invalidity of [underlying] conviction.”). While the test results petitioner 8 seeks “might prove exculpatory, that outcome is hardly inevitable;” the results “might prove 9 inconclusive or they may further incriminate [him].” Id. Put simply, petitioner’s challenge of the 10 state courts’ denial of his motion for DNA testing does not fall within the “core of habeas corpus” 11 and consequently “must be brought, if at all, under § 1983.” Nettles, 830 F.3d at 934 (citations 12 and internal quotation marks omitted). 13 III. 14 For the foregoing reasons, the petition for a writ of habeas corpus under 28 U.S.C. § 2254 15 challenging the state courts’ denial of petitioner’s motion for DNA testing pursuant to California 16 Penal Code § 1405 is DISMISSED without prejudice to bringing a civil rights complaint under 42 17 U.S.C. § 1983,1 and the motion for appointment of counsel (ECF No. 4) is DENIED. 18 Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, a certificate of 19 appealability (COA) under 28 U.S.C. § 2253(c) is DENIED because it cannot be said that “jurists 20 of reason would find it debatable whether the petition states a valid claim of the denial of a 21 constitutional right and that jurists of reason would find it debatable whether the district court was 22 1 Petitioner is advised that the Supreme Court has “severely limit[ed] the federal action a 23 state prisoner may bring for DNA testing.” Skinner, 562 U.S. at 525. In District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52 (2009), the Court rejected the extension of 24 substantive due process to this area and left slim room for the prisoner to show that the governing state law denies him procedural due process. Skinner, 562 U.S. at 525 (citing Osborne, 557 U.S. 25 at 71, 72). The Ninth Circuit since has permitted a state prisoner to proceed with a § 1983 action seeking to invalidate California Penal Code § 1405 (or portions thereof) on federal procedural due 26 process grounds, see Morrison v. Peterson, 809 F.3d 1059, 1069-70 (9th Cir. 2015), but not with a § 1983 action simply seeking relief from the state court’s determination that the prisoner is not 27 entitled to DNA testing under § 1405, see Cooper v. Ramos, 704 F.3d 772, 775, 777-81 (9th Cir. 1 correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added). 2 IT IS SO ORDERED. 3 || Dated: December 4, 2020 4 2 EN CHARLES R. BREYER 5 United States District Judge 6 7 8 9 10 11 g 12

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