Kevin Tyrone Flemings v. Covello

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA Kevin Tyrone FLEMINGS, Case No.: 19-cv-0944-JAH-AGS 12 Petitioner, REPORT AND RECOMMENDATION TO GRANT THE WARDEN’S v. MOTION TO DISMISS (ECF No. 15) COVELLO, Warden, 15 Respondent.

17 The purpose of a federal habeas corpus petition is to secure a prisoner’s early release from illegal confinement. If success on a prisoner’s claim won’t “necessarily spell speedier release,” it cannot be brought by habeas petition. Wilkinson v. Dotson, 544 U.S. 74, 82 (2005). In this habeas case, the inmate demands swifter parole consideration, which will not guarantee a shorter prison stay. Because success will not “necessarily spell speedier release,” his case should be dismissed.

23 BACKGROUND 24 Since 1998, petitioner Kevin Flemings has been serving a state-prison sentence of 280 years to life. (ECF No. 9, at 1-2; see ECF No. 15-2, at 2.) In 2016, California voters passed Proposition 57, which made certain nonviolent offenders eligible for early parole consideration. Flemings applied for such consideration, but the California Department of 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 immediate release from . . . confinement or the shortening of its duration.” Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). If success on a petitioner’s claim would not “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 brought, if at all, under [42 U.S.C.] § 1983.” Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir. 2016) (en banc) (quotation marks omitted).

12 In Wilkinson, two prisoners brought § 1983 lawsuits, challenging Ohio’s parole procedures as unconstitutional and seeking new parole hearings. 544 U.S. at 76. The Ohio prison authority argued that the inmates were really “attack[ing] the duration of their confinement,” so their claims “may only be brought through a habeas corpus action, not through § 1983.” Id. at 78. The Supreme Court disagreed. “Because neither prisoner’s claim would necessarily spell speedier release,” the Court concluded that habeas relief was 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 confinement or a shorter stay in prison; it means at most new eligibility review, which at most will speed consideration of a new parole application.” 544 U.S. at 82. Even if Flemings received a parole hearing, state “authorities may, in their discretion, decline to shorten his prison term.” Id. Proposition 57 added the following language to the California Constitution: “Any 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 1 CONCLUSION 2 Flemings’s claim is not suitable for habeas review. The Court need not address the || 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