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Edmund M. Abordo, #A0080735 v. Dept. of Public Safety

November 20, 2012

EDMUND M. ABORDO, #A0080735,

The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge


Defendant the Hawaii Department of Public Safety ("DPS") initiated this action by filing a Notice of Removal in this court pursuant to 28 U.S.C. § 1441(c). ECF #1. Plaintiff Edmund M. Abordo is a Hawaii prisoner incarcerated at the Saguaro Correctional Center (SCC), located in Eloy, Arizona. Before the court is Plaintiff's Motion to Remand Case, ECF #6, and DPS's Motion to Change Venue, ECF #8.*fn1 Plaintiff's Motion for Remand is DENIED and DPS's Motion to Change Venue is GRANTED. This action is TRANSFERRED to the United States District Court for the District of Arizona pursuant to 28 U.S.C. § 1404(a).


Plaintiff commenced this action with another inmate, Cedric Ah Sing, in the state circuit court on July 26, 2012, asserting claims for state habeas relief under Hawaii Rules of Penal Procedure 40.*fn2 See Petition for Post-Conviction Relief, ECF #1-1. Plaintiff and Ah Sing styled their pleading as a post-conviction petition, broadly alleging that their confinement at SCC violated the Fourteenth Amendment's Due Process Clause and various state laws and contracts, and jointly sought release. See ECF #1-1, PageID #5. They also claimed that DPS encouraged SCC prison officials to commit unspecified "atrocities," and retaliate against them in violation of the First and Eighth Amendments. Id.

The state circuit court found that they failed to assert a basis for relief under Haw. R. Penal P. 40, because they "allege[d] neither illegality of judgment nor illegality of custody or restraint, but allege[] a civil rights action or some other cause of action." ECF #1-2, PageID #11-12; see also, HRPP 40(c)(3).*fn3

DPS thereafter timely removed the action from the state court and moves to change venue. See ECF #1 & #8. Plaintiff seeks remand to state court. ECF #6. //


A. Plaintiff Asserts a Civil Rights Cause of Action Plaintiff's pleading clearly challenges his conditions

of confinement in Arizona, as allegedly imposed by SCC prison officials in Arizona, and not the validity of his conviction or sentence. If this action had been originally filed in the federal court, it would have been construed as a civil rights complaint and reviewed under § 1983, not under § 2254.

Federal law opens two main avenues of relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under . . . 42 U.S.C. § 1983. Challenges to the validity of any confinement . . . are the province of habeas corpus[;] . . . requests for relief turning on circumstances of confinement may be presented in a § 1983 claim.

Muhammad v. Close, 540 U.S. 749, 749 (2004). Claims that challenge the fact or duration of a prisoner's confinement should be addressed by filing a habeas corpus petition, while claims that challenge the conditions of confinement should be addressed by filing a civil rights action. See Wolff v. McDonnell, 418 U.S. 539, 554 (1974); Preiser v. Rodriguez, 411 U.S. 475, 499-500 (1973); Ramirez v. Galaza, 334 F.3d 850, 858-859 (9th Cir. 2003) (explaining that "habeas jurisdiction is absent, and a § 1983 action proper, where a successful challenge to a prison condition would not necessarily shorten the prisoner's sentence").

Plaintiff argues that he is being illegally confined and seeks release. He says that challenges seeking release from confinement are properly brought under § 2254 and must be fully exhausted in the state court before presentation to this court. See 28 U.S.C. § 2254(b)(1)(A). Thus, Plaintiff argues that his action was improperly removed and its removal will prevent him from fully-exhausting his claims. But Plaintiff's plea for release, based on alleged violations of due process, retaliation, and cruel and unusual punishment does not present a legitimate challenge to his conviction or sentence. These are straightforward conditions of confinement claims that allegedly occurred in Arizona by SCC prison officials. Rather, Plaintiff's pleading, brought in the state court jointly with Ah Sing, appears to be an attempt to circumvent the restrictions on his filing this action in the federal court.*fn4

Plaintiff is not entitled to habeas relief based on these claims. See Heck v. Humphrey, 512 U.S. 477, 481 (1994) ("[C]onstitutional claims that merely challenge the conditions of a prisoner's confinement, whether the inmate seeks monetary or injunctive relief, fall outside" the core of habeas corpus). Plaintiff's claims challenge the conditions of his confinement and present no basis for challenging his convictions or sentences. Success on Plaintiff's claims will not result in his immediate or speedier release from confinement; at most, success will resolve Plaintiff's claims in his favor, it will not invalidate his conviction or ...

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