IN RE: Henry R. BRATTON, on Habeas Corpus.
Appellant Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation (the CDCR), appeals from the superior court's order granting petitioner Henry R. Bratton's petition for a writ of habeas corpus. The superior court ordered that Bratton “be granted custody credit against his parole term” for time he spent in prison between the date that he would have been released after the Board of Parole Hearings (the Board) granted him parole in 2008 and the date of his eventual release after a reversal of the Board's grant by the Governor was found to be invalid. We conclude that the superior court lacked the authority to grant relief because Bratton's petition was premature and he had failed to exhaust his administrative remedies. We therefore reverse the order with directions to deny Bratton's petition.
Bratton committed murder in 1974 when he was 18 years old. He was originally sentenced to death, but his sentence was subsequently modified to life imprisonment. In July 2008, the Board found him suitable for parole. The Board's decision would have become effective in December 2008, but the Governor reversed the Board's decision in November 2008. Bratton challenged the Governor's reversal, and, in July 2009, the superior court found that the Governor's reversal was not supported by some evidence. The superior court reinstated the Board's decision but permitted the Governor to “reexamine the matter,” so long as the Governor proceeded in accordance with due process. The Acting Warden challenged the superior court's decision, but this court agreed with the superior court that the Governor's decision was not supported by some evidence. This court upheld the superior court's order in June 2010.
In July 2010, the Governor declined to review the Board's reinstated 2008 decision, and Bratton was released from custody in August 2010. In October 2010, Bratton filed a pro per petition for a writ of habeas corpus in the superior court in which he asserted, among other things, that “the 2–years confined in custody while the governor appealed the Board[']s decision should be omitted from his three[-]year parole term starting from the day that he would have originally been paroled.” The superior court issued an order to show cause (OSC) and appointed counsel. The CDCR filed a return, and Bratton filed a traverse.
In February 2011, the superior court issued an order granting Bratton's petition. The superior court ordered that Bratton “be granted custody credit against his parole term” for the time he spent in prison after the date when the Board's July 2008 grant of parole would have become effective had the Governor not reversed it. The CDCR timely filed a notice of appeal.
The problem we encounter in this case is that the superior court lacked the power to grant a remedy on the claim upon which it issued an OSC, because that claim was never properly before the superior court.
A writ of habeas corpus is available only where a person is being subjected to an unlawful restraint. “In this state, availability of the writ of habeas corpus is implemented by Penal Code section 1473, subdivision (a), which provides: ‘Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint.’ (Italics added.) [¶] As the italicized text in Penal Code section 1473, subdivision (a) demonstrates, a necessary prerequisite for issuance of the writ is the custody or restraint of the petitioner by the government. ‘Thus, it is well settled that the writ of habeas corpus does not afford an all-inclusive remedy available at all times as a matter of right. It is generally regarded as a special proceeding.’ “ (People v. Villa (2009) 45 Cal.4th 1063, 1068–1069, 90 Cal.Rptr.3d 344, 202 P.3d 427.) “Habeas corpus does not lie to challenge the validity of an anticipated future action nor to secure declaratory relief in advance thereof.” (In re Drake (1951) 38 Cal.2d 195, 198, 238 P.2d 566.)
The issue upon which the superior court issued its OSC did not concern whether Bratton was currently “unlawfully ․ restrained” but only whether he might be unlawfully restrained in the future. Even if, as the superior court found, Bratton should have been “granted custody credit against his parole term” for the time he spent in prison between the December 2008 date when the Board's 2008 decision would have become effective and entitled him to release and the August 2010 date of his release, he would not have been entitled to be discharged from parole until he had served his three-year parole period, that is, in December 2011. Hence, at the time of the superior court's February 2011 order, he could not yet establish that the restraint that his parole placed upon him was “unlawful[ ].”
Because Bratton's claim has since ceased to be premature, we do not rely solely on that ground. The more fundamental flaw in Bratton's petition was that he failed to allege that he had exhausted his administrative remedies.
“[I]t is well settled that habeas corpus petitioners must exhaust available administrative remedies before seeking judicial relief, even where constitutional issues are at the core of the dispute.” (In re Arias (1986) 42 Cal.3d 667, 678, 230 Cal.Rptr. 505, 725 P.2d 664.) “[E]xhaustion of the administrative remedy is a jurisdictional prerequisite to resort to the courts.”1 (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 293, 109 P.2d 942.) “The Board of Prison Terms shall review the prisoners' requests for reconsideration of denial of good-time credit, and setting of parole length or conditions, and shall have the authority to modify the previously made decisions of the Department of Corrections as to these matters.” (Pen.Code, § 5077, italics added .) “Any inmate or parolee under the department's jurisdiction may appeal any policy, decision, action, condition, or omission by the department or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare.” (Cal.Code Regs., tit. 15, § 3084.1, subd. (a).)
Bratton's habeas corpus petition challenges the CDCR's failure to apply a certain amount of prison custody time as a credit against his parole period. Although he had an available administrative remedy under Penal Code section 5077 and California Code of Regulations, title 15, section 3084.1, he did not allege in his petition that he had pursued this remedy.
While there is a futility exception to the exhaustion requirement, this exception is “very limited.” (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1985) 40 Cal.3d 654, 662, 221 Cal.Rptr. 488, 710 P.2d 288.) It applies only where “ ‘ “the petitioner can positively state that the [administrative agency] has declared what its ruling will be in a particular case ․“ ‘ “ (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 418, 194 Cal.Rptr. 357, 668 P.2d 664.) Bratton has not alleged that the Board has declared what its decision will be in his case. Thus, the futility exception does not apply.
Under these circumstances, the superior court lacked jurisdiction to grant habeas corpus relief. Had Bratton presented his claim for additional credit to the CDCR, been denied such credit, pursued reconsideration by the Board, and had his request for reconsideration rejected, he could have pursued judicial review of the merits of his claim. Since he has not yet done so, judicial review is not available.
The superior court's order is reversed, and the matter is remanded to the superior court with directions to vacate its order and to enter a new order denying the petition. The temporary stay order issued on November 15, 2011, shall remain in effect until finality of this decision.
WE CONCUR: BAMATTRE–MANOUKIAN, Acting P.J., and WALSH, J.*