877 F. 2d 64 - Boehner v. Murphy

MEMORANDUM**

John Hans Boehner was convicted of assault in Idaho. On November 9, 1987, he filed a complaint pro se and in forma pauperis under 42 U.S.C. Sec. 1983 alleging various violations of his rights. On March 8, 1988, the district court dismissed the complaint, sua sponte pursuant to the magistrate's findings, as frivolous. 28 U.S.C. Sec. 1915(d). Boehner timely appealed. On April 4, 1988, an Idaho appellate court reversed Boehner's conviction and remanded for a new trial, scheduled for December 1988.

Boehner alleges that the state official's assigning of a jail number to him violated his constitutional rights by giving him the "cloax of guilty." He asks for an order of release, damages, and various other relief. The district court dismissed the complaint as entirely frivolous, and impossible to amend to assert a cognizable claim. 28 U.S.C. Sec. 1915(d); see Stanger v. City of Santa Cruz, 653 F.2d 1257, 1257-58 (9th Cir.1980).

Boehner seeks, inter alia, release from confinement. He may challenge his incarceration only by petitioning for a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 487-90 (1973); see Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 681 (9th Cir.1984). Boehner had, or will have, the opportunity at his new trial to raise objections to the proceedings based on his jail number. Boehner has failed to exhaust state remedies. We therefore affirm the dismissal of his complaint inasmuch as we construe it as a petition for a writ of habeas corpus. See Franklin v. Oregon, 662 F.2d 1337, 1347 (9th Cir.1981).

Absent any possible argument that Boehner's conviction was tainted--a contention mooted by the retrial--we agree with the district court that any severable section 1983 claims based upon the mere assignment of a jail number are frivolous beyond any possibility of amendment. Cf. Neitzke v. Williams, 57 U.S.L.W. 4494, 4495 (U.S. May 1, 1989) (sua sponte dismissals for frivolity under section 1915(d) held to stricter standard then Fed.R.Civ.P. 12(b)(6) dismissals; it must be certain that plaintiff makes no rational argument in law or facts); Hernandez v. Denton, 861 F.2d 1421, 1423 (9th Cir.1988) (plaintiff must be given leave to amend unless it is absolutely clear that deficiencies are incurable).

Boehner also claimed that the state officials improperly denied him eligibility for parole. The district court construed this claim as a petition for habeas corpus relief, and denied it because Boehner had failed to exhaust state remedies. Boehner dropped the claim on appeal, stating that he had become eligible. However, Boehner filed a "motion to take judicial notice" in this court on October 13, 1988, enclosing a letter from the Idaho Commission for Pardons and Parole scheduling him for a hearing in January 1989, and stating "why, if I am presumed innocent, are they scheduling me for a parole hearing? I don't even have a sentence." Construing Boehner's pleadings liberally, it is possible that he has attempted to reopen the parole issue.

The proper way to challenge state parole decisions is by means of a petition for a writ of habeas corpus. See Wasko v. Vasquez, 820 F.2d 1090 (9th Cir.1987). As Boehner has specifically waived the parole issue on appeal, and has failed to respond to the district court's finding of failure to exhaust, we do not reach the issue. Boehner has failed to exhaust all state remedies, as is evident from the fact that a hearing was scheduled. If, after having exhausted all state remedies, Boehner believes he is being denied parole, or eligibility for parole, in violation of the Constitution, he may file a petition for a writ of habeas corpus in the district court at that time.

AFFIRMED.