Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Michael George KOGIANES; Cecil T. Kinkade, Petitioners-Appellants, v. Edward JENSEN; Mark Brnovich, Attorney General, Respondents-Appellees.
MEMORANDUM **
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. § 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 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, 131 S.Ct. 1910, 179 L.Ed.2d 969 (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.
FOOTNOTES
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. 216, 131 S.Ct. 859, 178 L.Ed.2d 732 (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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see also 28 U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 565 U.S. 134, 140-41, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999).
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: No. 21-15152
Decided: July 28, 2021
Court: United States Court of Appeals, Ninth Circuit.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)