Dunlap 124173 v. Shinn

• Court: District Court, D. Arizona
• Decided: July 22, 2021
• Docket: 4:21-cv-00111
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Larry Donnell Dunlap, No. CV-21-00111-TUC-RCC (EJM)

10 Petitioner, ORDER

11 v.

12 David Shinn, et al.,

13 Respondents. 14 15 On March 15, 2021, Petitioner Larry Donnell Dunlap, who was convicted in the 16 Pima County Superior Court and is currently in the custody of the Arizona Department of 17 Corrections, filed a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus. 18 (Doc. 1.)1 19 The basis for this habeas petition is related to other matters Dunlap filed in federal 20 court. Previously, Dunlap filed a prisoner civil rights petition pursuant to 42 U.S.C. § 1983, 21 with similar facts as those raised here. (Doc. 1 in Case No. CV-20-1084-DJH-DMF.) The 22 Court noted that Dunlap had three strikes against him, meaning he could not bring a claim 23 without both prepaying the filing fee and alleging he is in imminent danger of serious 24 bodily injury. (Id. at 2.) The Court found Dunlap had not met the imminent danger 25 requirement, and dismissed his case without prejudice pursuant to 28 U.S.C. § 1915(g). 26 (Id. at 4.) On February 24, 2021, Dunlap filed a similar civil rights complaint, attaching it 27 to a “Motion for the Emergency Preliminary Injunction and the Immediate Release of

28 1 Docket and page numbers refer to those generated by the Court’s Electronic Case Filing (CM/ECF) system. 1 Plaintiff[] Larry Donnell Dunlap from the Custody of the Arizona Department of 2 Corrections and Rehabilitation and Re-Entry, Due to the COVID19 Pandemic Virus 3 Outbreak in Arizona[’]s Prisons.” (Doc. 1 in Case No. CV-21-327-DJH-DMF.) Here, the 4 Court noted it did not have the ability to order release in a § 1983 action, and that habeas 5 proceedings were the appropriate avenue for the relief he sought. (Doc. 6 at 2 in Case No. 6 CV-21-327-DJH-DMF) (citing Preiser v. Rodriguez, 411 U.S. 475, 488–90 (1973).) The 7 Court dismissed the § 1983 case without prejudice and denied Dunlap’s emergency motion 8 as moot. (Id.) Dunlap then filed the instant § 2254 Habeas Petition. 9 In the instant petition, Dunlap does not challenge the validity of his conviction in 10 state court. (See Doc. 1.) Nor does he claim he is being confined past the expiration of his 11 sentence. (Id.) Instead, Dunlap asserts his continued custody is a violation of his Eighth 12 Amendment protection against cruel and unusual punishment because he has various health 13 issues and Respondents2 have failed to protect him from the Coronavirus. (Id. at 19.) 14 The Court’s Screening Order stated, “For the purposes of this Order only, the Court 15 will consider the Petition properly brought pursuant to § 2254.” (Doc. 7 at 3–4.) 16 Respondents answered the Petition (Doc. 11) and Dunlap filed a reply (Doc. 12) as well as 17 an emergency motion requesting a preliminary injunction and his immediate release due to 18 the Covid-19 pandemic in Arizona prisons. (Doc. 13.) Respondents answered the 19 emergency motion. (Doc. 14.) Dunlap did not file a reply. 20 The instant case was referred to Magistrate Judge Eric J. Markovich for a report and 21 recommendation. (Doc. 7 at 7.) Because of the pending emergency request for a 22 preliminary injunction, the Court withdrew the referral. (Doc. 15.) 23 I. Procedural History 24 25 Petitioner was convicted in Pima County Superior Court case number CR-052543, 26 of five counts of child molestation and one count of sexual abuse. (Doc. 1 at 2.) Petitioner 27 appealed his conviction to both the Arizona Court of Appeals and the Arizona Supreme

28 2 Respondents include the Arizona Department of Corrections Rehabilitation & Reentry Director David Shinn and the Arizona Attorney General. 1 Court, raising issues that are not relevant to the instant habeas petition. (Id. at 2–3.) Dunlap 2 filed several petitions for post-conviction relief, raising grounds for relief that are also not 3 at issue here. (Id. at 4–5.) Dunlap filed only one Rule 32 Petition for Post-Conviction Relief 4 (“PCR petition”) since the beginning of the Covid-19 pandemic, but the PCR petition did 5 not raise allegations that Respondents violated his Eighth Amendment rights based on their 6 response to the Covid-19 pandemic. (See Doc. 11-1.) 7 However, Dunlap filed an emergency motion in the trial court, asking for a 8 modification of his sentence due to Covid-19. (Docs. 16-2–16-5.)3 The trial court denied 9 the motion, stating that “the requested relief was neither warranted nor available.” (Doc. 10 16-6 at 16.) The trial court allowed Dunlap to supplement the motion, but the court 11 determined the supplement did not change its decision. (Doc. 16-9 at 4.) 12 Dunlap appealed, arguing the trial court erred by not waiting for a response before 13 denying the motion and asserting that the trial court discriminated against him. (Id.) The 14 Arizona Court of Appeals noted that Dunlap’s motion, although not labeled as such, must 15 be construed as a successive PCR petition. (Id. (citing Ariz. R. Crim. P. 32.3(b)).) However, 16 the appellate court found that as a successive PCR petition, Dunlap had not indicated the 17 basis for his claim under Arizona Rule of Criminal Procedure 32.1 and concluded that 18 Dunlap’s claims were not cognizable under the rule. (Id.) The appellate court then affirmed 19 the trial court’s denial of the motion. (Id. at 5.) The Arizona Supreme Court summarily 20 dismissed Dunlap’s petition for review. (Doc. 16-10 at 2.) 21 II. § 2254 Habeas Petition 22 23 Dunlap’s § 2254 habeas does not challenge the validity of this conviction or the 24 duration of his confinement. (Id.) Instead Dunlap seeks immediate release from prison, 25 claiming his continued confinement violates the Eighth Amendment prohibition against 26 cruel and unusual punishment. (Id.) Dunlap states he has leukopenia, hypertension, high

27 3 The Court ordered Respondents to file the documents relating to the emergency motion for modification pursuant to Rule 5(d) of the Rules Governing Section 2254 Cases in the 28 United States District Courts, because the documents were referenced but never filed by Petitioner or Respondent. (Doc. 15.) 1 cholesterol, glaucoma, inguinal hernia, and stage-3 kidney failure. (Id.) Dunlap claims that 2 his constitutional rights have been violated because Respondents have not protected him 3 from the Coronavirus and Respondents refuse to release him from custody. (Id.) 4 III. Standard of Review 5 a. Exhaustion 6 For habeas review, a petitioner must first show he has exhausted his state remedies 7 by fairly presenting the same issues to the state’s highest court. 28 U.S.C. § 2254(b)(1)(A); 8 see also Coleman v. Thompson, 501 U.S. 722, 731 (1991). The requirement to exhaust state 9 remedies makes certain that the state courts are given an opportunity to address 10 constitutional violations without the federal court’s intrusion. Rose v. Lundy, 455 U.S. 509, 11 515 (1982). To fairly present a claim, petitioner must “describe[] the operative facts and 12 legal theory upon which his claim is based.” Duncan v. Henry, 513 U.S. 364, 370 n.1 13 (1995) (quoting Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir. 1986)). However, an 14 claim does not necessarily need to be raised in a petition for post-conviction relief, an issue 15 is exhausted if the state appellate court has ruled on the merits. See Ybarra v. McDaniel, 16 656 F.3d 984, 991 (9th Cir. 2011) (“Regardless of whether or how a petitioner has 17 presented a claim, . . . that claim has been exhausted if the state courts have in fact ruled 18 on its merits.”); see cf. Lindquist v. Gardner, 770 F.2d 876, 878 (9th Cir. 1985) (dismissing 19 claim for procedural reasons does not exhaust state remedies). What is necessary is that the 20 filing describes “both the operative facts and the federal legal theory on which his claim is 21 based so that the state courts have a ‘fair opportunity’ to apply controlling legal principles 22 to the facts bearing upon his constitutional claim.” Castillo v. McFadden, 399 F.3d 993, 23 999 (9th Cir. 2005) (quoting Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003). 24 Respondents assert Petitioner has not exhausted his state remedies because he did 25 not file a PCR Petition raising the same claims. (Doc. 11.) But he was not required to file 26 a PCR petition specifically for exhaustion to occur: the Arizona Court of Appeals 27 recognized that, under Arizona Criminal Rule of Procedure 32.3(b), his emergency motion 28 is considered a successive PCR petition. (See Doc. 16-9 at 4.) Dunlap’s appeal raised the 1 following issues: he asserted that the trial judge committed an abuse of discretion and a 2 Fourteenth Amendment violation, acted in retaliation, and improperly advocated against 3 Dunlap. (Doc. 16-6.) Dunlap also claimed due process violations occurred because he was 4 denied an evidentiary hearing on his emergency motion. (Id. at 3.) 5 Dunlap’s appellate arguments do not raise the Eighth Amendment claims presented 6 in his habeas petition. Therefore, Dunlap has not fairly presented his legal arguments to the 7 state appellate court, his claims are not exhausted, and the Court may deny the habeas 8 petition on this basis. However, as seen below, even if he exhausted his claims, there is no 9 relief available to him in a § 2254 habeas petition. 10 b. § 2254 versus § 1983 11 12 “Challenges to the validity of any confinement or to particulars affecting its duration 13 are the province of habeas corpus; requests for relief turning on circumstances of 14 confinement may be presented in a § 1983 action.” Nettles v. Grounds, 830 F.3d 922, 927 15 (9th Cir. 2016). And so, “the exclusive vehicle” for “suits about prisoner life” is through a 16 § 1983 suit, not a § 2254. Id. at 932. And yet, the only process for an inmate to pursue immediate release is through a habeas petition. See Nettles, 830 F.3d at 927 (finding § 2254 17 is the “exclusive remedy” for claims that, if granted, would lead to inmate’s release). But, 18 an inmate in custody pursuant to a state court judgment is limited to filing a habeas pursuant 19 to 28 U.S.C. § 2254 alone. White, 370 F.3d 1002 1009–10 (9th Cir. 2004). 20 When the Court screened Dunlap’s § 2254 habeas and assumed for the purposes of 21 that Order that habeas was the proper method for relief, it quoted Wilson v. Williams, which 22 stated, “where a petitioner claims that no set of conditions would be constitutionally 23 sufficient[, Sixth Circuit precedent supports the conclusion that] the claim should be 24 construed as challenging the fact or extent, rather than the conditions, of confinement.” 961 25 F.3d 829, 838 (6th Cir. 2020). Upon deeper reflection, this Sixth Circuit opinion is not only 26 non-binding, but is distinguishable from the instant matter. Williams analyzed a § 2241 27 petition, not a § 2254 as Dunlap presents here. The Court finds (1) Dunlap may only file a 28 § 2254 habeas, and (2) his § 2254 habeas is a challenge to the conditions of confinement. 1 As such, it is not cognizable. See Henson v. Shinn, CV-20-02409-PHX-MTL-DMF, 2021 2 WL 1795638, at *5 (D. Ariz. Feb. 4, 2021), report and recommendation adopted, 2021 3 WL 1560559 (D. Ariz. Apr. 21, 2021). 4 Dunlap has already been denied immediate release in his prior § 1983 claim, 5 wherein the Court notified him, “(a) the Court cannot order Plaintiff’s release in a § 1983 6 action and (b) habeas proceedings are the proper mechanism for a prisoner seeking to 7 challenge the legality or duration of his confinement.” (Doc. 6 at 2 in CV-21-DCH-DMF 8 (citing Preiser, 411 U.S. at 488–90.) 9 However, this statement does not mean that Dunlap has a right to immediate release 10 in § 2254 habeas proceedings. A § 2254 habeas petition is an avenue for relief for inmates 11 challenging the duration or validity of their state conviction and sentence. Nettles, 830 F.3d 12 at 927. Dunlap’s instant § 2254 challenges neither duration nor validity of his conviction 13 or sentence. He is asking the Court to release him because, in his opinion, the facility at 14 which he is incarcerated is not taking proper measures to protect him from Covid-19. This is a challenge to the conditions of his confinement which may only be raised in a § 1983 15 petition. 16 It appears Dunlap is in a Catch-22. He cannot be immediately released if he brings 17 a § 1983 claim and may only pursue release through habeas. And, because he is a state 18 prisoner, the only avenue available to him in habeas is through a § 2254 petition. But, his 19 claim is not cognizable in a § 2254 because it challenges his conditions of confinement, 20 which may only be raised in a § 1983. However, this does not negate all forms of relief 21 stemming from his allegation Respondents are violating his Eighth Amendment rights. 22 “While release from prison is not an available remedy in a civil rights action, other types 23 of injunctive relief are available, such as enjoining unconstitutional conduct or requiring 24 compliance with protective measures.” Henson v. Shinn, Case No. CV-20-02409-PHX- 25 MTL (DMF) SHORT CITE. 26 27 IV. Conversion to a § 1983 28 A court may recharacterize a habeas petition as a § 1983 civil rights action if the 1 petition is “amenable to conversion on its face, meaning that it names the correct 2 defendants and seeks the correct relief,” and if the court provides notice of the conversion, 3 a warning of the consequences, and a chance for the petitioner to withdraw or amend his 4 petition. Nettles, 830 F.3d at 936. Here recharacterization is not appropriate. First, Dunlap’s 5 § 1983 claims seeking immediate release arguing Respondents violated his constitutional 6 rights by failing to protect him from Covid-19 and refusing to grant his immediate release 7 have already been dismissed. (See Doc. 6 at 2 in CV-21-327-DJH-DMF.) Second, his 8 petition is not “amenable to conversion on its face” because it still asks for immediate 9 release and is not properly suitable in a § 1983 habeas. Finally, one of the differences 10 between a § 1983 and a § 2254 is that in a § 1983 case, the inmate is required to show he 11 has exhausted his administrative remedies before challenging prison conditions. 42 U.S.C. 12 § 1997e(a). Dunlap has not shown administrative exhaustion.4 (See Doc. 13 at 3.) 13 V. Emergency Motion for Preliminary Injunction 14 15 Dunlap also filed an emergency motion for a preliminary injunction, asking the 16 Court to order his immediate release, and raising the same arguments stated in his § 2254 habeas petition. (Doc. 13.) As in Dunlap’s § 1983 case, because the Court denies his § 2254 17 habeas, it will deny the emergency motion as moot. 18 19 VI. Certificate of Appealability 20 “When the district court denies a habeas petition on procedural grounds without 21 reaching the prisoner’s underlying constitutional claim, a COA should issue when the 22 prisoner shows, at least, that jurists of reason would find it debatable whether the petition 23 states a valid claim of the denial of a constitutional right and that jurists of reason would 24 find it debatable whether the district court was correct in its procedural ruling.” Slack v. 25 26 4 While Dunlap claims administrative remedies are not available to him, he does not state 27 that he tried to exhaust and was denied. (Doc. 13 at 3.) The Court also notes that under Ariz. Rev. Stat. Ann. § 31-233, the director of the Arizona Department of Corrections “may 28 [] authorize furlough, temporary removal or temporary release of any inmate for compassionate release” and some form of administrative relief may be available to him. || McDaniel, 529 U.S. 473, 484 (2000). 2 The Court finds that jurists of reason would not debate whether the district court 3 || was correct in its procedural rulings. Therefore, the Court will not issue a COA. 4 Accordingly, IT Is ORDERED Larry Donnell Dunlap’s Petition Under 28 U.S.C. § 5 || 2254 for a Writ of Habeas Corpus is DENIED as unexhausted and non-cognizable. (Doc. 6 || 1.) Petitioner’s emergency motion for preliminary injunction and immediate release is || DENIED AS MOOT. (Doc. 13.) 8 Dated this 21st day of July, 2021. 9 10 11 Dp 12 ( f Honorable Raner ©. Collins 13 senior United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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