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 Petitioner was granted an extension of time to file an opposition. See order filed on

November 3, 2004.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

FRED GRAVES,

Petitioner, No. CIV 04-1272 DFL GGH P

vs.

MIKE KNOWLES, 

Respondent. FINDINGS AND RECOMMENDATIONS

 /

Introduction

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of two counts of first

degree murder in 1976 for which he received a seven year-to-life sentence. Exhibit A to petition.

Pending before the court is respondent’s September 29, 2004 motion to dismiss, to which

petitioner filed his opposition on November 4, 2004.1

Petition

Petitioner seeks to have a correctional counselor’s assessment in a parole board

report expunged. Petitioner alleges that Correctional Counselor I(CCI) Hickey prepared a Life

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 The March 1990 parole board calendar life evaluation report set forth the writer’s belief

that petitioner “would pose a moderate degree of threat to the public safety at this time if released

from prison.” The March 1992 report contained the statement that “the prisoner would probably

pose a moderate degree of threat to the public at this time, if released from prison.” In the March

1997 report, the correctional counselor opined that petitioner “would pose a moderate degree of

threat to the public safety at this time if released from prison.” Petition, Exhibit C.

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Prisoner Evaluation Report for petitioner’s February 2002 calendar parole board hearing in which

she stated that it was her belief that “petitioner would pose an unpredictable degree of threat to

the public if released at this time.” Petition, Statement of Facts, p. 1(unnumbered); Exhibit A. 

No evidence supported the “unpredictable degree of threat” assessment, which CCI Hickey

reached after seeing petitioner in August 2001 for a file review and after asking a few questions. 

Petition, p. 3. In the summary of the Life Prisoner Evaluation Report, CCI Hickey wrote:

“Considering the commitment offense as well as the recent disciplinary history, this writer

believes that if released from prison at this time, he would pose an unpredictable degree of threat

to the public.” Exhibit A to petition. 

Petitioner contends that CCI Hickey was not qualified to make such an assessment

because she had just become his counselor and did not know him. Petition, Statement of Facts,

p. 1. Petitioner alleges that the evaluation was in marked contrast to past reports of counselors

over the preceding 15 years. Id., Exhibit C.2 When petitioner sought to have CCI Hickey amend

the report to eliminate the “unpredictable degree of threat” assessment, Hickey denied the

request, stating the following:

Denied. This Board Report was compiled from your last

appearance before the Board of Prison Terms on August 13, 1997

up to April 30, 2001. The Report covers the pattern of behavior,

including disciplinary record, accomplishments in work, training

and treatment programs, as well as relevant medical issues. Your

case factors revealed a Rule Violation Report received on

December 30, 2000 for the specific act of Mutual Combat with a

guilty finding and credit forfeiture, counseling and reprimand. The

work history reflected an overall satisfactory to above average

work performance, and completion of a GED. The following

workshops were noted, Alternative to Violence, Journaling

Workshop and a Communicable Disease Reduction training

course.

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My impression of the degree of risk to the public safety is based

upon the aforementioned behavior in addition to the limited contact

spent with you as well as my inability to observe your functioning

outside the structures of the prison environment.

Exhibit B to petition.

At his February 2002 Board of Prison Terms hearing, the BPT panel

“misconstrued” Hickey’s assessment as a firm prediction, questioned petitioner who was

unsuccessful in explaining the reason for it, and told petitioner they would only consider any

modification once petitioner had completed his 602 appeal and there was new information. 

Petition, Statement of Facts, p. 1; Exhibit D, partial transcript of hearing. Petitioner asserts that

the counselor’s report is a big part of a BPT hearing because the members believe that counselors

see an inmate most frequently when in fact an inmate does not see a counselor, for the most part,

but once a year. Petition, Statement of Facts, p. 5(unnumbered). Department Operations Manual

(DOM) 62090.11.2 sets forth the degree of risk as “low/moderate/high/or unpredictable.” Id. 

Petitioner seeks, inter alia, a “writ of habeas corpus” and an order from the court ordering that

the “unpredictable degree of risk” evaluation be vacated. Petitioner includes as an exhibit an

order granting habeas corpus relief in a state court case that he finds to be analogous, wherein the

Director of Corrections was directed to strike the “unpredictable degree of threat” language and

substitute, instead, an admission that the counselor was unable to predict the degree of threat

because the counselor was not well acquainted with the life prisoner. Exhibit H, In re: Edward

James Willard, p. 10.

Motion to Dismiss

Respondent first contends that 1) petitioner raises a state law claim, not properly

heard in federal court and 2) petitioner’s challenge to the information in his Life Prisoner

Evaluation does not constitute a habeas claim. MTD, pp. 5-6. 

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Opposition 

In opposition, petitioner avers that the correctional counselor’s finding of the level

of risk was at issue in his February 2002 parole consideration hearing and that the finding

violated his liberty interest in parole without due process. Opp., pp. 1-6. He contends that the

correctional counselor’s risk assessment rendered his parole hearing fundamentally unfair

pursuant to Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475 (1991).

Discussion

In Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003), the Ninth Circuit found

that California’s parole scheme gives rise to a cognizable liberty interest in release on parole. 

“In the parole context, the requirements of due process are met if ‘some evidence’ supports the

decision.” 334 F.3d at 914. Here, however, petitioner does not challenge the denial of parole,

but, instead, seeks an expungement or amendment of a portion of a correctional counselor’s

opinion from a Life Prisoner Evaluation Report, one of a number of records and documents that

are apparently presented before a BPT panel considering an inmate’s parole. In doing so, on the

face of it, petitioner does not raise a habeas challenge because petitioner is not attacking the

legality of his present custody. In failing to do so, he would appear not to have met the threshold

requirement for bringing a petition for writ of habeas corpus. “[T]he essence of habeas corpus is

an attack by a person in custody upon the legality of that custody, and ...the traditional function

of the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484, 93

S. Ct. 1827, 1833 (1973). Although the state court allows a state prisoner to challenge conditions

of confinement via a state habeas petition, that has not been the case in federal court: 

Federal law opens two main avenues to relief on complaints related

to imprisonment: a petition for habeas corpus, 28 U.S.C. 2254,

and a complaint under the Civil Rights Act of 1871, Rev. Stat. 

1979, as amended, 42 U.S.C. 1983. Challenges to the validity of

any confinement or to particulars affecting its duration are the

province of habeas corpus, Preiser v. Rodriguez, 411 U.S. 475,

500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); requests for relief

turning on circumstances of confinement may be presented in a 

1983 action. 

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Muhammad v. Close, 540 U.S.749, 750, 124 S. Ct. 1303, 1304 (2004) (per curiam).

§ 1983 must yield to the more specific federal habeas statute with

its attendant procedural and exhaustion requirements, where an

inmate seeks injunctive relief challenging the fact of his conviction

or the duration of his sentence. See Preiser v. Rodriguez, 411 U.S.

475, 489, 93 S. Ct. 1827 [] (1973). Such claims fall within the

‘core’ of habeas corpus and are thus not cognizable when brought

pursuant to § 1983. Ibid. By contrast constitutional claims that

merely challenge the conditions of a prisoner’s confinement,

whether the inmate seeks monetary or injunctive relief, fall outside

of that core and may be brought pursuant to § 1983 in the first

instance. See Muhammad v. Close, 540 U.S.749, 750, 124 S.Ct.

1303, 1304 [] (2004) (per curiam); Preiser, supra, at 498-499, 93 S.

Ct. 1827.

Nelson v. Campbell, 541U.S. 637, 124 S. Ct. 2117, 2122 (2004).

It is fairly evident that the instant challenge “does not necessarily imply the

invalidity of [his] conviction[] or continuing confinement,” thus, if properly brought at all, “it is

properly brought under § 1983.” Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997)

(concerning challenge to an administrative placement which rendered the placement of the

plaintiffs ineligible for parole). A prisoner may have “in certain limited circumstances a claim of

constitutional magnitude” where he alleges “(1) that information is in his file, (2) that the

information is false, and (3) that it is relied on to a constitutionally significant degree.” Paine v.

Baker, 595 F.2d 197, 201 (4th Cir. 1979). However, “it is not sufficient that the inmate disputes

evaluations and opinions regarding him.” Id. Thus, even in the context of 42 U.S.C. § 1983,

petitioner, as plaintiff, would fail to state a claim because he cannot set forth a constitutional

deprivation to which he has been subjected by defendants acting under color of state law. 

Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) [citations omitted].

However, the always murky divide between habeas and § 1983 civil rights

actions, particularly in the parole context, grows ever murkier with respect to the question of

when a prisoner should proceed pursuant to 28 U.S.C. § 2254 or under 42 U.S.C. § 1983. In

Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004), the Ninth Circuit recently held that

“when prison inmates seek only equitable relief in challenging aspects of their parole review,

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that, so long as they prevail, could potentially affect the duration of their confinement, such relief

is available under the federal habeas statute.” [Emphasis in original.] Under Docken, even when,

as here, petitioner’s claim does not constitute the kind of “core” challenge contemplated by

Preiser, supra, he may proceed under § 2254 so long as there is an undeniable “potential

relationship between his claim and the duration of his confinement....” 393 F.3d at 1031

[emphasis added]. The Docken court resolves the holding in Neal, supra, by finding that the rule

of Neal is limited to establishing that § 1983 is an “appropriate remedy” in the context of a claim

implicating at least some relationship to parole eligibility, without reaching the question of

whether it is the exclusive one. 393 F.3d at 1030 [emphasis in original].

Thus, the circles of § 1983 and habeas corpus jurisdiction, once only overlapping

slightly, grow to be nearly co-terminus. In this case, the court is left to conclude that petitioner

may proceed in habeas, having already found, in any event, that the claim herein would fail in a §

1983 action, and even though the granting of the writ would not result in overturning the denial

of his parole at the 2002 hearing, but at most, only result in changing a line in a report that had

been before the BPT. 

Even so, respondent is correct that this state law claim must fail. A writ of habeas

corpus is available under 28 U.S.C. § 2254(a) only on the basis of some transgression of federal

law binding on the state courts. Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985);

Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). It is unavailable for alleged error in

the interpretation or application of state law. Middleton v. Cupp, 768 F.2d at 1085; see also

Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987); Givens v. Housewright, 786 F.2d 1378, 1381

(9th Cir. 1986). Habeas corpus cannot be utilized to try state issues de novo. Milton v.

Wainwright, 407 U.S. 371, 377, 92 S. Ct. 2174, 2178 (1972). Petitioner challenges the

application of a state departmental regulation concerning an evaluation by a correctional

counselor in a report under consideration by a BPT panel. In order to succeed on this claim, 

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which is based on an alleged violation of state law, petitioner would have to demonstrate an error

involving “fundamental fairness.” Estelle v. McGuire, 502 U.S. at 73, 112 S. Ct. at 482. 

There is no applicable test within the habeas province of this court to analyze a

state correctional counselor’s opinion as under Daubert or Frye. Daubert v. Merrel Dow

Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993) (expert testimony must rest on a

reliable foundation relevant to fact at issue); Frye v. United States, 293 F. 1013, 1129-1130 (D.C.

Cir. 1923) (superseded by Daubert, supra) (expert opinion based on scientific technique

inadmissible unless the technique is “generally accepted” in the relevant scientific community). 

Petitioner does not come close to implicating an issue of “fundamental fairness” in contending

that the opinion of a correctional counselor contained in a parole report before the BPT as part of

a procedure approved by a state Department of Corrections regulation violates his due process

rights. 

Accordingly, IT IS HEREBY RECOMMENDED that respondent’s September 29,

2004, motion to dismiss be granted and this action be dismissed.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

shall be served and filed within ten days after service of the objections. The parties are advised

that failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: 6/21/05 /s/ Gregory G. Hollows

____________________________________

GREGORY G. HOLLOWS

 UNITED STATES MAGISTRATE JUDGE

ggh:009

grav1272.mtd

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