Michael Kogianes v. Edward Jensen

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 28, 2021
• Docket: 21-15152
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 28 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL GEORGE KOGIANES; CECIL No. 21-15152 T. KINKADE, D.C. No. Petitioners-Appellants, 2:20-cv-02186-DLR-DMF

v. MEMORANDUM* EDWARD JENSEN; MARK BRNOVICH, Attorney General,

Respondents-Appellees.

Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding

Submitted July 19, 2021**

Before: SCHROEDER, SILVERMAN, and MURGUIA, Circuit Judges.

Arizona state prisoners Michael George Kogianes and Cecil T. Kinkade

appeal pro se from the district court’s orders dismissing their 28 U.S.C. § 2241

petition and denying reconsideration. We have jurisdiction under 28 U.S.C.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). § 1291, and we affirm.

Appellants’ § 2241 petition alleged due process claims challenging their

parole denials and the procedures for review thereof. The district court correctly

determined that, because appellants were in custody pursuant to state court

judgments, they must bring habeas petitions through 28 U.S.C. § 2254, not § 2241.

White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004), overruled on other

grounds by Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc). Our

decisions in Stow v. Murashige, 389 F.3d 880, 886 (9th Cir. 2004), and Wilson v.

Belleque, 554 F.3d 816, 821 (9th Cir. 2009), do not change this result because,

unlike appellants, Stow and Wilson brought double jeopardy challenges to charges

in pending retrials.1 See Wilson, 554 F.3d at 822-24; Stow, 389 F.3d at 885.

The district court also correctly determined that appellants cannot pursue

their request for release under the authorities they invoke. The provisions of 34

U.S.C. § 60541(g)(5)(a) and the CARES Act apply only to inmates in federal

custody, and thus do not extend to appellants. The Prison Litigation Reform Act

1 Insofar as a certificate of appealability is required for this claim, see Hayward, 603 F.3d at 554, overruled on other grounds by Swarthout v. Cooke, 562 U.S. 859 (2011), we treat the arguments raised in the opening brief as a request for such. See 9th Cir. R. 22-1(e). So treated, the request is denied because appellants have not shown that “jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also 28 U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999).

2 21-15152 permits the release of prisoners only after procedural steps that have not been

completed in this case. See Brown v. Plata, 563 U.S. 493, 512 (2011) (discussing

requirements found in 18 U.S.C. §§ 3626(a)(3)(A)-(C)). Finally, as the district

court concluded, appellants’ Eighth Amendment claims must be raised in a civil

rights action under 42 U.S.C. § 1983. See Nettles v. Grounds, 830 F.3d 922, 934

(9th Cir. 2016) (en banc) (holding that a state prisoner’s claims must lie at the core

of habeas corpus to be raised in habeas, and claims challenging “any other aspect

of prison life” must be raised in a § 1983 action).

AFFIRMED.

3 21-15152