Kevin Tyrone Flemings v. Covello

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Kevin Tyrone FLEMINGS, Case No.: 19-cv-0944-JAH-AGS 12 Petitioner, REPORT AND RECOMMENDATION TO GRANT THE WARDEN’S 13 v. MOTION TO DISMISS (ECF No. 15) 14 COVELLO, Warden, 15 Respondent. 16 17 The purpose of a federal habeas corpus petition is to secure a prisoner’s early release 18 from illegal confinement. If success on a prisoner’s claim won’t “necessarily spell speedier 19 release,” it cannot be brought by habeas petition. Wilkinson v. Dotson, 544 U.S. 74, 82 20 (2005). In this habeas case, the inmate demands swifter parole consideration, which will 21 not guarantee a shorter prison stay. Because success will not “necessarily spell speedier 22 release,” his case should be dismissed. 23 BACKGROUND 24 Since 1998, petitioner Kevin Flemings has been serving a state-prison sentence of 25 280 years to life. (ECF No. 9, at 1-2; see ECF No. 15-2, at 2.) In 2016, California voters 26 passed Proposition 57, which made certain nonviolent offenders eligible for early parole 27 28 1 consideration. Flemings applied for such consideration, but the California Department of 2 Corrections and Rehabilitation deemed his convictions to be violent and denied his request. 3 Flemings filed a habeas petition challenging this decision. 4 DISCUSSION 5 Habeas corpus addresses a narrow band of prisoner suits: those seeking “either 6 immediate release from . . . confinement or the shortening of its duration.” Preiser v. 7 Rodriguez, 411 U.S. 475, 489 (1973). If success on a petitioner’s claim would not 8 “necessarily spell speedier release,” it does not lie “at the core of habeas corpus.” 9 Wilkinson, 544 U.S. at 82. Such suits “may not be brought in habeas corpus but must be 10 brought, if at all, under [42 U.S.C.] § 1983.” Nettles v. Grounds, 830 F.3d 922, 934 11 (9th Cir. 2016) (en banc) (quotation marks omitted). 12 In Wilkinson, two prisoners brought § 1983 lawsuits, challenging Ohio’s parole 13 procedures as unconstitutional and seeking new parole hearings. 544 U.S. at 76. The Ohio 14 prison authority argued that the inmates were really “attack[ing] the duration of their 15 confinement,” so their claims “may only be brought through a habeas corpus action, not 16 through § 1983.” Id. at 78. The Supreme Court disagreed. “Because neither prisoner’s 17 claim would necessarily spell speedier release,” the Court concluded that habeas relief was 18 unavailable and that they could maintain their § 1983 actions. Id. at 82. 19 As in Wilkinson, success for Flemings “does not mean immediate release from 20 confinement or a shorter stay in prison; it means at most new eligibility review, which at 21 most will speed consideration of a new parole application.” 544 U.S. at 82. Even if 22 Flemings received a parole hearing, state “authorities may, in their discretion, decline to 23 shorten his prison term.” Id. 24 25 26 1 Proposition 57 added the following language to the California Constitution: “Any 27 person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary 28 1 CONCLUSION 2 Flemings’s claim is not suitable for habeas review. The Court need not address the 3 || other arguments for dismissal. Thus, this Court recommends that: 4 1. Flemings’s habeas petition be DISMISSED; and 5 2. No certificate of appealability be issued. 6 Within 14 days of service of this report, the parties must file any objections to it. See 7 U.S.C. § 636(b)(1). The party receiving an objection has 14 days to file any response. 8 || Fed. R. Civ. P. 72(b)(2). 9 Dated: March 5, 2020 10 —— ll Hon. ndrew G. Schopler United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28