Sekerke v. Gore

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 KEITH WAYNE SEKERKE, Case No.: 20-CV-1998 JLS (MSB) 12 Petitioner, ORDER (1) DENYING 13 RESPONDENT’S MOTION TO DISMISS; (2) DENYING 14 v. PETITIONER’S MOTION FOR 15 IMMEDIATE RELEASE; AND (3) TO SHOW CAUSE WHY THE 16 WILLIAM GORE, Sheriff, CASE SHOULD NOT BE 17 Respondent. DISMISSED AS MOOT [18] 19 (ECF Nos. 5, 8) [20] 21 Petitioner Kevin Wayne Sekerke (“Petitioner” or “Sekerke”), a state prisoner 22 proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 23 § 2254, challenging his confinement at San Diego County Jail while awaiting sentencing 24 on several felony convictions in San Diego Superior Court Case Nos. SCS304221 and 25 SCS305297. ECF No. 1 (“Pet.”) at 1. Sekerke alleges the dangers presented by the 26 COVID-19 pandemic, combined with his pre-existing medical conditions, render his 27 continued detention in the San Diego County Jail unconstitutional under the Eighth and 28 Fourteenth Amendments. Id. at 6–8. Sekerke has also filed an “Emergency Motion to be 1 Released” (“Pet.’s Mot.,” ECF No. 5). Respondent has filed a Motion to Dismiss the 2 Petition (“Resp’t Mot.,” ECF No. 8). The Court has reviewed the Petition, the Emergency 3 Motion, the Motion to Dismiss, the Response in Opposition to the Motion to Dismiss (ECF 4 No. 9), the relevant documents filed in this case, and the legal arguments presented by both 5 Parties. For the reasons discussed below, the Court DENIES Respondent’s Motion to 6 Dismiss and DENIES Petitioner’s “Emergency Motion to be Released.” Furthermore, the 7 Court ORDERS the Parties to SHOW CAUSE why the case is not now moot. 8 BACKGROUND 9 At the time Sekerke filed his federal Petition, October 9, 2020, he was confined at 10 San Diego Central Jail, awaiting sentencing on convictions for robbery, burglary, vehicle 11 theft, and attempted extortion.1 See Pet. at 2. The facts underlying Sekerke’s convictions 12 are not relevant to his Petition because, rather than challenging the constitutionality of his 13 criminal convictions, Sekerke seeks release from custody due to alleged unsafe conditions 14 in San Diego County Jail caused by the COVID-19 pandemic. Id. at 6–8. 15 Prior to filing his federal Petition, Sekerke raised his claims in the California courts. 16 On May 19, 2020, Sekerke filed a petition for writ of habeas corpus in the California Court 17 of Appeal, seeking release from custody.2 See Pet. at 79–84. Sekerke argued his rights [18] 19 1 The Court takes judicial notice of the San Diego County Jail website inmate locator, which indicates that 20 on May 21, 2020, Sekerke was sentenced to state prison on several felony convictions in San Diego Superior Court Case No. SCS304221. United States v. Basher, 629 F.3d 1161, 1165 (9th Cir. 2011) 21 (taking judicial notice of Bureau of Prisons’ inmate locator available to the public); see also Foley v. Martz, No. 3:18-cv-02001-CAB-AGS, 2018 WL 5111998 , at *1 (S.D. Cal. Oct. 19, 2018) (taking judicial 22 notice of CDCR’s inmate locator); Graham v. Los Angeles Cnty., No. 2:18-cv-01126-PA (GJS), 2018 WL 6137155 , at *2 (C.D. Cal. May 4, 2018) (taking judicial notice pursuant to Federal Rule of Evidence 201 [23] of information regarding the status of inmate via the Los Angeles County Sheriff’s Department’s website 24 and its inmate locator function). 25 2 Attached to his federal Petition, Sekerke also includes a copy of a petition for writ of habeas corpus prepared for the San Diego Superior Court, raising the same issues contained in his federal petition and 26 signed on April 14, 2020. Pet. at 56–69. The petition does not have a case number, and Petitioner did not include a copy of the Superior Court’s Order. Nor was a copy lodged by Respondent. In his federal [27] Petition, however, Sekerke states his habeas petition to the San Diego Superior Court in case No. 28 HCS23655 was denied in May 2020. Pet. at 3. The Court takes judicial notice of California Court of 1 under the Eighth and Fourteenth Amendments were being violated by his continued 2 confinement during the COVID-19 pandemic. Id. at 81. He asserted, among other things, 3 that he suffered from pre-existing medical conditions, including asthma and a past history 4 of tuberculosis, which made his detention in the San Diego County Jail uniquely dangerous 5 for him during the COVID-19 pandemic. Id. He argued that his continued confinement 6 was unconstitutional because “when the COVID-19 infection reaches Petitioner in County 7 Jail, it [will] kill [him].” Id. 8 On May 26, 2020, the California Court of Appeal denied Sekerke’s habeas petition. 9 Id. at 77–78. First, the court noted that under California law, “[a]s a general rule, a litigant 10 will not be afforded judicial relief unless he has exhausted available administrative 11 remedies [Citation] [¶] The requirement that administrative remedies be exhausted ‘applies 12 to grievances lodged by prisoner.’” Id. (citing In re Dexter, 25 Cal. 3d 921, 925 (Cal. 13 1979)). The Court then concluded that Sekerke had “failed to exhaust his administrative 14 remedies before going to court” and therefore was not entitled to relief. Id. 15 The court went on conclude that Sekerke’s claims also failed on the merits. It found 16 that Sekerke had failed to allege sufficient facts to support his claim that the jail was so 17 unsafe for him that he must be released. The court stated, in part, “Sekerke asserts his ‘life 18 is in danger due to the COVID-19 pandemic,’ but does not identify any medical care or 19 safety precautions his jailors have failed or refused to provide to eliminate or reduce the 20 danger.” Id. at 78. The court found that Sekerke’s “[c]onclusory allegations made without 21 any explanation of the basis for the allegations [did] not warrant relief, let alone an 22 evidentiary hearing.” Id. (quoting People v. Duvall, 9 Cal. 4th 464, 474 (Cal. 1995)). 23 On August 4, 2020, Sekerke filed a petition for writ of habeas corpus in the 24 California Supreme Court. See id. at 89. On September 23, 2020, the California Supreme 25 Court denied the petition, stating: “The petition for writ of habeas corpus is denied. [27] Court Case No. HCS23655. See https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm 28 ?dist=41&doc_id=2318809&doc_no=D077496&request_token=NiIwLSEmTkw4W1BFSCM9XE1IIFg 1 Individual claims relating to conditions of confinement due to COVID-19 are denied, as 2 applicable.” Id. at 88 (citing In re Dexter, 25 Cal. 3d at 925–26). 3 On October 9, 2020, Sekerke filed the instant federal petition for writ of habeas 4 corpus in this Court. Id. at 1. Petitioner subsequently filed an “Emergency Motion to be 5 Released.” ECF No. 5. On February 18, 2021, Respondent filed a Motion to Dismiss the 6 Petition. ECF No. 8. Sekerke filed a Response in Opposition to Respondent’s Motion on 7 March 4, 2021. ECF No. 9. 8 MOTION TO DISMISS 9 Since the onset of the COVID-19 pandemic more than a year ago, federal courts 10 have been faced with novel issues related to prisoners seeking release from custody due to 11 alleged unsafe conditions in prisons, jails, and other detention facilities. The threshold 12 question is often: What is the proper vehicle for a detainee or prisoner who alleges that 13 COVID-19 has made their detention so unsafe that their continued confinement violates 14 their Eighth Amendment rights and the Petitioner seeks release from custody? And that is 15 the question in this case. 16 Respondent argues the Petition should be dismissed because Sekerke is merely 17 challenging the conditions of his confinement and as such, he must pursue his claims under [18] 42 U.S.C. § 1983 . Resp’t Mot. at 4. For his part, Sekerke contends that a petition for writ 19 of habeas corpus is proper because he is seeking release from confinement, which he 20 contends presents a risk to his safety so serious that the Eighth and Fourteenth Amendments 21 require his release. Pet. at 6–8. 22 I. Legal Standard 23 In general, federal law provides “two main avenues to relief on claims related to 24 imprisonment: a petition for a writ of habeas corpus [under] 28 U.S.C. § 2254 , and a 25 complaint [for violation of federal civil rights under] 42 U.S.C. § 1983 .” Muhammad v. 26 Close, 540 U.S. 749, 750 (2004). “Challenges to the validity of any confinement or to 27 particulars affecting its duration are the province of habeas corpus; requests for relief 28 turning on circumstances of confinement may be presented in a § 1983 action.” Id. 1 A district court has the authority to grant a writ of habeas corpus where an individual 2 is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 3 U.S.C. § 2254 . Indeed, federal habeas corpus proceedings are the “exclusive remedy” for 4 a prisoner seeking release from custody. Skinner v. Switzer, 562 U.S. 521 , 533–34 (2011) 5 (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)); see Calderon v. Ashmus, 523 U.S. 6 740, 747 (1998); Edwards v. Balisok, 520 U.S. 641, 648 (1997); Preiser v. Rodriguez, 411 7 U.S. 475 , 500 (1973) (holding prisoner cannot seek a determination that she is entitled to 8 immediate or speedier release from confinement under 42 U.S.C. § 1983 ); Heck v. 9 Humphrey, 512 U.S. 477, 481 (1994) (“[H]abeas corpus is the exclusive remedy for a state 10 prisoner who challenges the fact or duration of his confinement and seeks immediate or 11 speedier release.”). On the other hand, when a prisoner’s claim would not “necessarily 12 spell speedier release,” suit may be brought under § 1983. Skinner, 562 U.S. at 525 13 (quoting Wilkinson, 544 U.S. at 82 ). 14 The Supreme Court discussed the interplay between a § 2254 habeas corpus action 15 and a § 1983 civil rights action in Preiser. In that case, prisoners brought suit under § 1983, 16 challenging the constitutionality of the disciplinary proceedings that lead to the deprivation 17 of good-time credits. Preiser, 411 U.S. at 476–77. The Court considered “whether the 18 specific federal habeas corpus statute, explicitly and historically designed to provide the 19 means for a state prisoner to attack the validity of his confinement, must be understood to 20 be the exclusive remedy available in a situation like this where it so clearly applies.” Id. 21 at 489. The court concluded that a state prisoner cannot use a § 1983 action to challenge 22 “the fact or duration of his confinement,” id. at 489, because such an action lies at “the core 23 of habeas corpus.” Id. at 487. The Court explained that a claim falls within the “core of 24 habeas corpus” when a prisoner challenges “the fact or duration of his confinement” and 25 “seeks either immediate release from that confinement or the shortening of its duration.” 26 Preiser, 411 U.S. at 489. 27 Since Preiser, the Supreme Court has applied its holding in several different cases. 28 First, in Wolff v. McDonnell, the plaintiffs’ claims for restoration of good-time credits were 1 deemed “core” habeas proceedings. 418 U.S. 539, 554 (1974). However, challenges to 2 the validity of the procedures for assessing loss of good-time were not core habeas 3 proceedings because success on that claim would not necessarily result in restoration of 4 credits. See id. at 554–55. In Edwards, the plaintiff’s claim alleging due process violations 5 for procedures used in a disciplinary hearing that resulted in deprivation of good-time 6 credits was not properly brought under § 1983 because success on the claim would result 7 in restoration of credits (and thus affect the duration of confinement), making them “core” 8 habeas claims. Edwards, 520 U.S. at 647–48. 9 Next, the Supreme Court concluded claims challenging the procedures used to 10 determine parole eligibility/suitability did not fall within “the core of habeas corpus” 11 because “neither prisoner’s claim would necessarily spell speedier release.” Wilkinson, [12] 544 U.S. at 81 . Rather, at most the prisoners could expect only speedier consideration of 13 a new application or a new parole hearing. See id. The Court summarized its prior 14 consideration of the interplay between §§ 1983 and 2254: 15 Throughout the legal journey from Preiser to Balisok, the Court has focused on the need to ensure that state prisoners use [16] only habeas corpus (or similar state) remedies when they seek to 17 invalidate the duration of their confinement––either directly through an injunction compelling speedier release or indirectly [18] through a judicial determination that necessarily implies the 19 unlawfulness of the State’s custody. Thus, Preiser found an implied exception to § 1983’s coverage where the claim seeks–– [20] not where it simply “relates to”––“core” habeas corpus relief, 21 i.e., where a state prisoner requests present or future release. [22] 23 Id. at 81–82. 24 Finally, in Skinner, the Supreme Court held that a plaintiff seeking post-conviction 25 DNA testing was not required to pursue his claim in an application for habeas relief because 26 the results “would not necessarily imply the invalidity of his conviction.” Skinner, 562 27 U.S. at 534 (internal quotation marks omitted). Although the DNA results “might prove 28 exculpatory,” the results could also “prove inconclusive or they might further incriminate.” 1 Id. (citation omitted). As such, such claims are not deemed to fall within the “core of 2 habeas proceeding” and consequently “must be brought, if at all, under § 1983.” Id. 3 In Nettles, the Ninth Circuit carefully reviewed Preiser and its progeny when 4 considering a habeas petition brought by a state prisoner serving an indeterminate life 5 sentence who sought to have a disciplinary violation expunged after being denied parole. 6 Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc). The Ninth Circuit 7 concluded that “[s]uccess on the merits of Nettles’s claim would not necessarily lead to 8 immediate or speedier release because the expungement of the challenged disciplinary 9 violation would not necessarily lead to a grant of parole,” as it was only one of a multitude 10 of factors considered by the parole board in denying Nettles’s parole. Id. at 934–35. The 11 Nettles court held that state prisoners whose claims will “not necessarily spell speedier 12 release” may not bring their claims under habeas corpus but must instead bring them 13 pursuant to 42 U.S.C. § 1983 . See id. at 930–31. The mere possibility that an inmate may 14 get an earlier parole review hearing or may have a more favorable outcome from the parole 15 hearing does not meet the Nettles “necessarily” requirement. See id.at 934–35. Put another 16 way, if “success on [Petitioner]’s claims would not necessarily lead to his immediate or 17 earlier release from confinement, [Petitioner]’s claim does not fall within ‘the core of 18 habeas corpus,’ and he must instead bring his claim under § 1983.” Nettles, 830 F.3d at 19 935 (quoting Skinner, 562 U.S. at 535 n.13). 20 In sum, the common thread among cases from the Supreme Court since Preiser is 21 that when a state prisoner raises “challenges to the validity” of his confinement, see 22 Muhammad, 540 U.S. at 750 , and success would lead to immediate or speedier release from 23 custody, those claims fall within the “core of habeas proceedings.” Nettles, 830 F.3d at 24 934; see also Wilkinson, 544 U.S. at 81–82. 25 II. Claims Seeking Release Due to COVID-19 Pandemic 26 The Court now turns to how these principles apply in the context of a habeas 27 petitioner seeking release based on claims related to COVID-19. As noted above, the 28 COVID-19 pandemic has been an unprecedented event which has, in turn, presented a 1 number of novel legal questions. In this case, the threshold question turns on whether 2 government-mandated protection from the deadly disease means that detention or 3 imprisonment, which was lawful when it was imposed, can lawfully be served in settings 4 that expose prisoners and detainees to risks alleged to be so great that continued 5 confinement amounts to a violation of the Eighth Amendment.3 This Court has found no 6 Ninth Circuit case addressing the issue of whether a petition for habeas corpus is the 7 appropriate vehicle for a person who is in state or local custody and asserts that conditions 8 in jail or prison are so unsafe due to COVID-19 that, in order to comply with the Eighth 9 Amendment, the petitioner must be released from custody. See William v. Jenkins, No. CV 10 21-1456-DMG (GJS), 2021 WL 765567 , at *8 (C.D. Cal. Feb. 24, 2021) (“The question of 11 whether prisoner actions asserting violations of their constitutional rights based on the 12 COVID-19 pandemic properly may sound in habeas, versus civil rights, is an open one, 13 with the case law in flux.”). 14 Respondent does not address recent cases considering the impact of COVID-19 15 pandemic on claims filed by prisoners and detainees. Respondent simply argues Sekerke’s 16 claims “are not within the scope of habeas corpus, as his allegations do not ‘[challenge] the 17 validity of any confinement’ nor do they challenge ‘particulars affecting [the] duration [of 18 confinement].’” Resp’t Mot. at 4 (alterations in original). Respondent is correct that [20] 21 3 While Sekerke frames his claims as violations of both the Eighth and Fourteenth Amendments, the constitutional analysis of such claims varies depending on a petitioner’s status as a pretrial detainee or a 22 convicted prisoner. The Eighth Amendment applies to prisoners who have been convicted and sentenced; a pretrial detainee is entitled to be free of cruel and unusual punishment under the due process clause of [23] the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520 , 537 n.16 (1979). The Ninth Circuit has held 24 that a convicted but not yet sentenced inmate should be treated as a sentenced inmate. Resnick v. Hayes, 213 F.3d 443 , 447–48 (9th Cir. 2000) (citing Whitnack v. Douglas County, 16 F.3d 954, 957 (8th Cir. 25 1994)) (holding that a claim by a convicted prisoner awaiting sentencing is governed by the Eighth Amendment); Berry v. City of Muskogee, 900 F.2d 1489, 1493 (10th Cir. 1990) (holding that, when 26 determining whether the Eighth or Fourteenth Amendment governs an inmate’s claim, “[t]he critical juncture is conviction, either after trial or . . . by plea, at which point the state acquires the power to punish [27] and the Eighth Amendment is implicated”)). Therefore, because Sekerke was convicted but not yet 28 sentenced at the time he filed his Petition, his claims fall under the Eighth Amendment, not the Fourteenth 1 “prisoners may not challenge mere conditions of confinement in habeas corpus.” Nettles, [2] 830 F.3d at 933 (9th Cir. 2016) (emphasis added). But the question of whether Petitioner 3 is challenging the conditions of his confinement, or its fact or duration, is not so simple. 4 Indeed, Sekerke is doing both here. He alleges that (1) due to COVID-19, the conditions 5 inside the jail are so unsafe that they violate the Eighth Amendment and (2) there is no way 6 to make the jail sufficiently safe for Petitioner, given his specific pre-existing medical 7 conditions and the difficulties presented in the San Diego County Jail setting, that would 8 be consistent with the Eighth Amendment and therefore his only remedy is release from 9 custody. Pet. at 6–8. 10 Although the Ninth Circuit has not addressed this issue, other circuits have 11 considered the validity of habeas claims filed pursuant to the general habeas statute, 28 12 U.S.C. § 2241 ,4 in the context of the COVID-19 pandemic. In the Sixth Circuit, several 13 federal inmates filed a § 2241 habeas petition “to obtain release from custody to limit their 14 exposure to the COVID-19 virus.” Wilson v. Williams, 961 F.3d 829 , 832–33 (6th Cir. 15 2020). The inmates claimed that release from prison was the only remedy that could cure 16 the constitutional violations. Id. at 837–38. The Sixth Circuit held that a petition for habeas 17 corpus filed by the federal prisoners under 28 U.S.C. § 2241 was the proper vehicle when 18 the prisoners sought “release from custody to limit their exposure to the COVID-19 virus.” [19] Id. at 832–33. The court rested its decision on the inmates’ allegation that “no set of 20 conditions” could possibly be constitutional in light of the dangers of COVID-19 and 21 therefore “the [alleged] constitutional violations occurring at [the prison] as a result of the 22 pandemic [could] be remedied only by release.” Id. at 838. The court concluded that [24] 4 Section 2241 more broadly extends to any prisoner “in custody in violation of the Constitution . . . of the 25 United States.” 28 U.S.C. § 2241 (c)(3). It is often used by immigration and other federal detainees and prisoners. Under § 2241, habeas corpus relief is also “available for challenges by a state prisoner who is 26 not in custody pursuant to a state court judgment––for example, a defendant in pre-trial detention or awaiting extradition.” White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004). “In these situations, not [27] covered by the limitations in § 2254, the general grant of habeas authority provided by the Constitution 28 and § 2241 will provide jurisdiction for state prisoners’ habeas claims.” Id. (citations omitted); see also 1 “where a petitioner claims that no set of conditions would be constitutionally sufficient[,] 2 the claim should be construed as challenging the fact or extent, rather than the conditions, 3 of the confinement.” Id. 4 In the Tenth Circuit, a panel addressed whether a state prisoner’s claim that the 5 Eighth Amendment required his release during COVID-19 pandemic was cognizable under 6 § 2241. The court noted the tension and overlap between habeas corpus and § 1983 as it 7 relates to COVID-19 in particular, stating: 8 For the most part [the petition] appears to object only to conditions of confinement, not the legality of custody, and [9] therefore was properly dismissed. But the claim could be 10 construed as also contending that in light of the [COVID-19] pandemic he should be released from custody because there are [11] no conditions of confinement that could adequately prevent an 12 Eighth Amendment violation. At least one circuit court has held that such a claim can be raised through federal habeas [13] proceedings. [14] 15 Medina v. Williams, 823 F. App’x 674 , 676 (10th Cir. 2020) (citing Standifer v. Ledezma, [16] 653 F.3d 1276,1280 (6th Cir. 2011); Wilson, 961 F.3d 829 , 837–38). Ultimately, the Tenth 17 Circuit declined to rule on the issue because, even assuming habeas jurisdiction was 18 appropriate, the petitioner had failed to exhaust state judicial remedies and therefore the 19 petition had to be dismissed. Id. at 677 (citing Magar v. Parker, 490 F.3d 816, 818 (10th 20 Cir. 2007) (requiring exhaustion for § 2241 claims); Parkhurst v. Pacheco, 809 Fed. App’x 21 556 (10th Cir. 2020) (affirming dismissal of a state prisoner’s 28 U.S.C. § 2241 habeas 22 petition, in which he alleged his continued confinement was hazardous to his health in light 23 of the COVID-19 pandemic, for failure to exhaust)). 24 In another unpublished decision, the Fifth Circuit agreed with the analysis in Wilson. 25 There, a federal inmate sought a change in his physical confinement by requesting that he 26 be released to home confinement due to the risk of contracting COVID-19 while in federal 27 custody. See Cheek v. Warden of Fed. Med. Ctr., 835 F. App’x 737 , 739 (5th Cir. 2020). 28 The court noted that under Fifth Circuit law, “release from physical confinement in prison 1 constitutes release from custody for habeas purposes, even though the state retains a level 2 of control over the releasee.” See id. (quoting Coleman v. Dretke, 409 F.3d 665, 669 (5th 3 Cir. 2005)). The court concluded that the petitioner was “challenging the fact and duration 4 of his confinement,” and therefore a petition for writ of habeas corpus was the proper 5 vehicle. Id. (“Cheek’s request for release to home confinement in the context of a global 6 pandemic was properly brought as an application for a writ of habeas corpus under 28 7 U.S.C. § 2241 because a favorable ruling from the district court would accelerate his 8 release.”). 9 District courts within the Ninth Circuit have come to different conclusions when 10 faced with this issue.5 In Bent v. Barr, the district court noted that “even for state prisoners, 11 the Ninth Circuit has held that ‘habeas jurisdiction is proper where a challenge to prison 12 conditions would, if successful, necessarily accelerate the prisoner’s release.’” Bent v. 13 Barr, No. 19-CV-06123-DMR, 2020 WL 3640009 , at *2 (N.D. Cal. July 6, 2020) (citing 14 Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003)). The court found that the petitioner 15 was “not solely challeng[ing] the conditions of his confinement but also the legality of his 16 continued detention during the COVID-19 pandemic.” Id. at *4. The court concluded that [18] 5 District courts in other circuits are similarly divided. Some district courts have concluded that such [19] claims are cognizable on habeas. See Cameron v. Bouchard, 462 F. Supp. 3d 746 , 753–54 (E.D. Mich. 20 May 21, 2020), vacated on other grounds, 815 Fed. Appx. 978 , 2020 WL 3867393 (6th Cir. July 9, 2020); Martinez-Brooks v. Easter, 459 F. Supp. 3d 411 , 434 (D. Conn. May 12, 2020) (“Because Petitioners 21 contend that the Eighth Amendment violation inheres in their incarceration at Danbury FCI and cannot be remedied unless they are removed from that setting, Petitioners are challenging the fact—or ‘existence’— 22 of their confinement.”); see also Parmeley v. Trump, 2020 WL 1987366 , at *2 (S.D. Ill. Apr. 27, 2020) (concluding a § 2241 habeas petition, rather than a Bivens or § 1983 action, was the proper vehicle for [23] federal prisoners seeking release from custody due to heightened risk caused by COVID-19); Malam v. 24 Adducci, 452 F. Supp. 3d 643 (E.D. Mich. Apr. 5, 2020) (concluding § 2241 was proper for prisoner who alleged that “no matter what steps were taken, due to her underlying serious health conditions, there is no 25 communal holding facility where she could be incarcerated during the Covid-19 pandemic that would be constitutional”). Other district courts have found the claims non-cognizable on federal habeas. See Wragg 26 v. Ortiz, 462 F. Supp. 3d 476 (D.N.J. 2020) (finding claims seeking release to non-prison settings are really unconstitutional conditions of confinement cases which are not yet cognizable on habeas review); [27] Toure v. Hott, 458 F. Supp. 3d 387 , 399 (E.D. Va. 2020) (finding detainees who sought release due to 28 COVID-19 conditions were not challenging the fact or duration of their detention and therefore their 1 it is the fact of the confinement itself that is at issue when there are no changes that will 2 effectively remedy the violation other than release. See id.; see also Torres v. Milusnic, [3] 472 F. Supp. 3d 713 , 724–26 (C.D. Cal. 2020) (finding § 2241 jurisdiction existed when 4 the petitioners’ claims sought relief from COVID-related conditions at their institution by 5 challenging the “fact and duration of confinement on the basis that no set of conditions of 6 confinement under the present circumstances could be constitutional”). 7 Other district courts in the Ninth Circuit have reached the opposite conclusion and 8 determined such cases are ultimately challenges to the conditions of prisons and therefore 9 outside the scope of habeas. See, e.g, Wilson v. Ponce, 465 F. Supp. 3d. 1037, 2020 WL 10 3053375, at *10 (C.D. Cal. June 8, 2020) (finding a habeas petition for an expedited review 11 for enlargement of custody was not cognizable because, among other things, Supreme 12 Court authority suggests “habeas cannot be stretched this far” and release was not the only 13 available remedy); Nelson v. Shinn, No. 21-CV-0040-PHX-DJH-JZB, 2021 WL 2018961 , 14 at *2 (D. Ariz. May 4, 2021) (finding prisoner’s claim that he must be released because 15 “no modification of his conditions of confinement that will ameliorate [the alleged] 16 violations of the constitution and laws” was not cognizable on habeas corpus); Espinoza v. 17 Stanislaus Cty. Sheriffs Dep’t, No. 1:20-CV-00824-NON-EJL-THC, 2020 WL 4017828 , 18 at *1 (E.D. Cal. July 16, 2020) (dismissing habeas petition in which inmate sought release 19 due to COVID-19 conditions because it failed to raise any claims cognizable on federal 20 habeas corpus). 21 This Court finds the analysis of the Sixth Circuit in Wilson and the Northern District 22 of California in Brent most persuasive. In the specific context of the deadly COVID-19 23 pandemic, when a prisoner claims his detention is unconstitutional in light of the dangers 24 presented by COVID-19 combined with the petitioner’s particular circumstances and that 25 petitioner further contends there are “no set of conditions” that could possibly make his 26 custody constitutional, a petition for habeas corpus is the proper vehicle for challenging 27 that custody. Here, Sekerke alleges his detention violates the Eighth Amendment of the 28 U.S. Constitution and argues “no set of conditions” can make his custody constitutional. 1 Unlike the petitioner in Wilson, however, because Sekerke has suffered a state conviction, [2] 28 U.S.C. § 2254 (not 28 U.S.C. § 2241 ) is the appropriate habeas statute. White, 370 F.3d 3 at 1009–10 (concluding that § 2254 limits the general grant of habeas relief under § 2241 4 and “is the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant 5 to a state court judgment, even when the petitioner is not challenging his underlying state 6 court conviction”). 7 Therefore, the Court finds Petitioner’s claim is cognizable under 28 U.S.C. § 2254 . 8 The Court DENIES Respondent’s Motion to Dismiss. 9 MOTION FOR RELEASE 10 On December 29, 2020, Petitioner filed an “Emergency Motion to be Released 11 Now.” See generally Pet.’s Mot. He asks the Court to release him immediately, stating 12 that “I will die if you do not release me.” Id. at 1. Sekerke states that at the time he filed 13 the motion for release, there was an “outbreak in the jail” but fails to point to any specific 14 law to support his motion. It appears, however, that Petitioner is requesting a temporary 15 restraining order (“TRO”) or preliminary injunction ordering his release while his case 16 proceeds. See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (stating documents filed pro se 17 are “to be liberally construed”). 18 Whether construed as a motion for TRO or preliminary injunction, the standard for 19 issuing both is the same. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 20 1345, 1347 n.2 (1977). A TRO is “an extraordinary remedy that may only be awarded 21 upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. 22 Council, Inc., 555 U.S. 7, 24 (2008). “The proper legal standard for preliminary injunctive 23 relief requires a party to demonstrate (1) ‘that he is likely to succeed on the merits, (2) that 24 he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the 25 balance of equities tips in his favor, and (4) that an injunction is in the public interest.’” 26 Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter, 555 U.S. at 27 20); see also Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 28 2009). The first factor––likely success on the merits––is the most important. Garcia v. 1 Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (citing Aamer v. Obama, 742 F.3d 1023 , 2 1038 (D.C. Cir. 2014) (“We begin with the first and most important factor: whether 3 petitioners have established a likelihood of success on the merits.”)). While the moving 4 party carries the burden of demonstrating likelihood of success, he or she is “not required 5 to prove his case in full at a preliminary-injunction hearing.” See Univ. of Texas v. 6 Camenisch, 451 U.S. 390, 395 (1981). 7 In his one-page motion, Sekerke states: “I am asthmatic with numerous medical 8 conditions. There is an outbreak in the jail. I will die if you do not release me.” Pet.’s 9 Mot. at 1. Sekerke provides no facts regarding any precautions taken by staff. He gives 10 no information on what procedures and policies are in place at the jail with respect to 11 COVID-19 precautions. For instance, Sekerke does not indicate whether there is social 12 distancing in the jail, or whether inmates have been provided masks and/or other hygiene 13 items to prevent or hinder the spread of the virus. He states that “over 40 inmates” were 14 infected with COVID-19 but provides no specifics regarding where detainees who tested 15 positive are housed; for instance, whether they are isolated from detainees who are not 16 infected or left with uninfected detainees. In sum, there is nothing in the Motion to support 17 release. 18 Sekerke appears to rely on the facts presented in his Petition as the basis for his 19 request for immediate release. Having found that Sekerke states a cognizable claim, in 20 order to be successful on the merits, he must meet the burden set forth under 28 U.S.C. 21 § 2254(d). Under § 2254(d), a habeas petition will not be granted unless the adjudication: 22 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, 23 clearly established federal law; or (2) resulted in a decision that was based on an 24 unreasonable determination of the facts in light of the evidence presented at the state court 25 proceeding. 28 U.S.C. § 2254 (d); Early v. Packer, 537 U.S. 3, 8 (2002). 26 A federal court is not called upon to decide whether it agrees with the state court’s 27 determination; rather, the court applies an extraordinarily deferential review, inquiring only 28 whether the state court’s decision was objectively unreasonable. See Yarborough v. 1 Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). In 2 order to grant relief under § 2254(d)(2), a federal court “must be convinced that an appellate 3 panel, applying the normal standards of appellate review, could not reasonably conclude 4 that the finding is supported by the record.” See Taylor v. Maddox, 366 F.3d 992 , 1001 5 (9th Cir. 2004). 6 It appears Sekerke presented his claims to the California Supreme Court in a petition 7 for writ of habeas corpus.6 That court denied the petition without discussion. See Pet. at 8 88. Therefore, the Court must look through to the last reasoned state court decision denying 9 his claim. See Ylst v. Nunnemaker, 501 U.S. 797 , 805–06 (1991). In this case, that is the 10 opinion of the California Court of Appeal. There, the court denied the petition for failure 11 to exhaust administrative remedies and on the merits, stating: 12 Sekerke also has not stated a prima facie case for habeas corpus relief. Such relief is available to remedy illegal [13] conditions of confinement, including inadequate provision for a 14 prisoner’s medical needs. To be entitled to habeas corpus relief, the prisoner must allege with particularity the facts on which the [15] claim is based and submit declarations and other reasonably 16 available documents supporting the claim. Sekerke alleges his prior tuberculosis and current asthma increase his risk of death if [17] he contracts COVID-19, but he has not substantiated the 18 allegations with a declaration from a competent witness, medical records, or any other documents. He alleges the conditions in the [19] jail are “unsafe,” but provides no details and offers no supporting 20 evidence. Sekerke asserts his “life is in danger due to the COVID-19 pandemic,” but does not identify any medical care or [21] safety precautions his jailors have failed or refused to provide to 22 /// [24] 6 Respondent has not lodged the records related to Petitioner’s state habeas petitions. Petitioner has 25 attached a copy of his petition to the California Court of Appeal to his federal petition. See Pet. at 79–84. In it, he raises the same claim presented in his federal petition. Petitioner also included a copy of the first 26 page of his petition for writ of habeas corpus filed with the California Supreme Court. Id. at 89. Because the entire petition is not part of the record currently before the Court, it is impossible to determine [27] conclusively that Sekerke has exhausted the same claims. For purposes of this Order, however, the Court 28 presumes Sekerke raised the same claims in his petition to the California Supreme Court as he did in his 1 emliamdein watieth ooru rte adnuyc ee xthpela dnaantigoenr .o fS tuhceh b “a‘s[ics] ofonrc ltuhseo arlyle aglaletigoantiso dnos [2] not warrant relief, let alone an evidentiary hearing.’” [3] 4 Pet. at 78 (citations omitted). 5 Sekerke must show a likelihood of success in establishing that the appellate court’s 6 decision was either (1) contrary to or an unreasonable application of clearly established 7 federal law or (2) based on an unreasonable determination of the facts. See 28 U.S.C. 8 § 2254(d). To establish an Eighth Amendment violation, a plaintiff must show defendants 9 acted “with deliberate indifference to a substantial risk of serious harm to health.” Farmer 10 v. Brennan, 511 U.S. 825, 835 (1994). A constitutional violation under these principles 11 has both objective and subjective components. First, a prisoner must be incarcerated under 12 conditions that, objectively, pose “a substantial risk of serious harm.” Id. at 834 . Second, 13 because “only the unnecessary and wanton infliction of pain implicates the Eighth 14 Amendment,” a prison official must possess “a ‘sufficiently culpable state of mind,’” 15 which “[i]n prison-conditions cases . . . is one of ‘deliberate indifference’ to inmate health 16 or safety.” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). And here, Sekerke 17 must show more than just an Eighth Amendment violation. He must show that no remedy 18 other than release could make his custody constitutional. Moreover, this Court is precluded 19 from considering materials outside the factual record before the state high court when it 20 resolved Petitioner’s claims. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (holding that 21 “review under § 2254(d)(1) is limited to the record that was before the state court that 22 adjudicated the claim on the merits”). 23 While it appears the Court has not received the entirety of the record that was before 24 the state court, what is currently before the Court is insufficient to establish a likelihood of 25 success on the merits. There is little dispute that COVID-19 presents a substantial risk of 26 serious harm to health. On the record before the Court, however, Sekerke has not presented 27 sufficient evidence to establish that Respondent was wanton or reckless with respect to that 28 risk or has otherwise failed to take reasonable steps aimed at preventing or mitigating the 1 risk that COVID-19 presents to those detained San Diego County Jail. Petitioner fails to 2 provide any specific evidence of what precautionary measures had been put in place (or 3 not put in place) by the San Diego County Jail and why any such measures were inadequate 4 to contain an outbreak or properly provide medical care should an outbreak occur. 5 Sekerke also fails to provide sufficient evidence to support his claim that he has pre6 existing medical conditions that places him at higher risk should he contract COVID-19. 7 He alleges he suffers from asthma and has a history of tuberculosis. He provides some 8 medical records with his Petition, one from 2011 and the rest from 2008. Pet. at 23–50. 9 The records appear to relate to infections Sekerke suffered while in prison. While some 10 include a notation that Sekerke has a “history of asthma,” the records are more than 10 11 years old and offer little to support his claims regarding the current risk COVID-19 12 presents to his health. His conclusory allegations are insufficient to support his Eighth 13 Amendment claim. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (stating conclusory 14 allegations do not warrant habeas relief.). 15 In sum, Sekerke has not shown a likelihood of success on the merits of his Eighth 16 Amendment claim. See Garcia, 786 F.3d at 740 ; see also Hope v. Warden York Cnty 17 Prison, 972 F.3d 310 (3d Cir. 2020) (denying TRO filed by immigration detainees seeking 18 release under 28 U.S.C. § 2241 due to the risks presented by COVID-19 because the 19 petitioner’s failed to show likelihood of success on the merits). Petitioner’s Motion for 20 Release is therefore DENIED. 21 ORDER TO SHOW CAUSE 22 On July 23, 2021, Petitioner submitted a Notice of Change of Address. ECF No. 10. 23 Petitioner indicates he has been transferred from San Diego County Jail and is now in the 24 custody of the California Department of Corrections and Rehabilitation (“CDCR”), housed 25 at Wasco State Prison. See id. Generally, a case becomes moot when the issues presented 26 are no longer “live” or the parties lack a legally cognizable interest in the outcome. City 27 of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000). The basic question in determining 28 mootness is “whether there exists a present controversy as to which effective relief can be 1 || granted.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2 || 2007) (quoting Vill. of Gambell v. Babbitt, 999 F.2d 403 , 406 (9th Cir. 1993)). 3 Because Petitioner’s claims relate to the specific conditions at San Diego County 4 || Jail and the only remedy Petitioner seeks is release from San Diego County Jail custody, 5 ||the Court. ORDERS THE PARTIES TO SHOW CAUSE why the case should not be 6 || dismissed as moot. See Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (concluding 7 || prisoner’s transfer to another correctional facility rendered moot his claims for injunctive 8 relief relating to the facility where the prisoner was no longer housed); see also Ndudzi v. 9 || Castro, No. SA-20-CV-0492-JKP, 2020 WL 3317107 , at *7 (W.D. Tex. June 18, 2020) 10 ||(finding an immigration detainee’s § 2241 habeas claims related to COVID-19 were 11 rendered moot when his request for release on habeas corpus was premised upon conditions 12 ||of confinement at a specific facility and the petitioner was later transferred to another 13 || facility). 14 CONCLUSION 15 Based on the foregoing, the Court DENIES Respondent’s Motion to Dismiss (ECF 16 || No. 8) and DENIES Petitioner’s Motion for Emergency Release (ECF No. 5). 17 Furthermore, the Court issues an ORDER TO SHOW CAUSE why the case should 18 || not be dismissed as moot after Petitioner’s transfer to CDCR custody. The Parties SHALL 19 || FILE written memoranda of points and authorities supporting their position, no later than 20 days after the date this Order is electronically filed. 21 IT IS SO ORDERED. 22 ||Dated: August 13, 2021 . tt f Le 23 on. Janis L. Sammartino United States District Judge