ORDER RE: MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS
Based on a prison disciplinary action taken against him, petitioner Marvin Dean Noor filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. As petitioner is a state prisoner proceeding pro se, his case was referred to a United States Magistrate Judge pursuant to § 636(b)(1)(B) and Local General Order No. 262. On April 30, 2009, the Magistrate Judge recommended that the court deny respondent's motion to dismiss petitioner's habeas action as moot. Respondent filed timely objections, and the court now reviews the Magistrate Judge's Findings and Recommendations de novo. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3).
In 1980, petitioner plead guilty to first-degree murder and was sentenced to life imprisonment with the possibility of parole. (Habeas Pet. ¶ 4.) Petitioner has been eligible for parole since 1993 but has been denied parole six times, including the most recent denial in October 2005. (Resp't's Mem. Ex. B.) In July 2006, petitioner was charged with the rules violation of "Inappropriate Conduct in the Visiting Room" based on his alleged "excessive contact" with his wife during a supervised visit. (Id. Ex. A at 3-4.) Although petitioner denied the charges, he was found guilty and, as a consequence, was placed on "no-visit" status for ninety days and assessed thirty days "loss of behavioral credit." (Id.) After exhausting his administrative and state judicial remedies, petitioner filed this habeas action, seeking to expunge the 2006 prison disciplinary action and findings from his record. (Habeas Pet. ¶¶ 10-13.) Respondent now moves to dismiss petitioner's action as moot because the no-visit status has long since expired and the loss of the behavioral credit will not impact petitioner's duration of confinement.
In determining that petitioner's claim is not moot, the Magistrate Judge relied on Bostic v. Carlson, 884 F.2d 1267 (9th Cir. 1989), which held that "[h]abeas corpus jurisdiction  exists when a petitioner seeks expungement of a disciplinary finding from his record if expungement is likely to accelerate the prisoner's eligibility for parole." Id. at 1269. Fifteen years after Bostic, the Ninth Circuit explained that the use of the term "likely" was intended to identify "claims with a sufficient nexus to the length of imprisonment so as to implicate, but not fall squarely within, the 'core' challenges identified by the [Supreme Court in] Preiser" v. Rodriguez, 411 U.S. 475 (1973). Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004); see Preiser, 411 U.S. at 487-89 (identifying claims that are "within the core of habeas corpus" as those that attack "the very duration of [a prisoner's] physical confinement" by seeking immediate release from or a reduction in the length of confinement).
As mootness was not at issue in Bostic, its standard of allowing habeas jurisdiction when "expungement is likely to accelerate the prisoner's eligibility for parole" must be considered in light of precedent that directly addresses the issue before the court: whether petitioner's claim is now moot.
"A case becomes moot when 'it no longer present[s] a case or controversy under Article III, § 2, of the Constitution.'" Wilson v. Terhune, 319 F.3d 477, 479 (9th Cir. 2003) (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)) (alteration in original). Based on § 2254's jurisdictional requirement that a petitioner be in "custody" at the time of seeking habeas relief, a claim is potentially moot if the very "custody" the petitioner challenges terminates.*fn1 Spencer, 523 U.S. at 7; Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir. 1998). When the challenged "custody" has terminated, a petitioner may nonetheless avoid dismissal of a habeas petition as moot if "some concrete and continuing injury other than the now-ended ["custody"]--some 'collateral consequence' of the conviction--" remains. Spencer, 523 U.S. at 7; see Carafas v. LaVallee, 391 U.S. 234, 237 (1968) (explaining that collateral consequences are "'disabilities or burdens [which] may flow from'
[a] petitioner's conviction," thereby giving the petitioner "'a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him'") (first alteration in original).
The existence of collateral consequences that may avoid dismissal of a habeas petition as moot can either be presumed or proven. Spencer, 523 U.S. at 8. For example, collateral consequences are presumed when a habeas petition attacks a criminal conviction. Id. (citing Sibron v. New York, 392 U.S. 40, 55-56 (1968)). On the other hand, the presumption of collateral consequences does not apply to a habeas petition that seeks to reverse a revocation of parole. Id. at 14.
In holding that the revocation of parole was insufficient to give rise to the presumption of collateral consequences, the Supreme Court reasoned that, even though "the parole violations found by the revocation decision would enable the parole board to deny [petitioner's] parole in the future," this consequence was too speculative, especially because the petitioner was "able--and indeed required by law--" to avoid returning to prison and becoming eligible for parole in the future. Id. at 13. The possibility that a parole revocation might affect a petitioner's future employment prospects or criminal sentence was also insufficient to give rise to the presumption of collateral consequences:
These "non-statutory consequences" were dependent upon "[t]he discretionary decisions . . . made by an employer or a sentencing judge," which are "not governed by the mere presence or absence of a recorded violation of parole," but can "take into consideration, and are more directly influenced by, the underlying conduct that formed the basis for the parole violation."
Id. (quoting Lane v. Williams, 455 U.S. 624, 632-33 (1982)) (alteration in original).
The Ninth Circuit has also held that "the presumption of collateral consequences does not apply to prison disciplinary proceedings." Wilson, 319 F.3d at 480. Although a parole board is required to consider any disciplinary actions when determining whether a prisoner should be granted parole, Cal. Code Regs. tit. 15, § 2402, the Ninth Circuit reasoned that the delay or denial of parole based on prison disciplinary proceedings presents the "type of non-statutory consequence [that is] dependent on discretionary decisions" and thus insufficient to give rise to the presumption of collateral consequences. Wilson, 319 F.3d at 481. Petitioner is therefore unable to rely on the presumption of collateral consequences to withstand dismissal of his claim as moot. Id.; accord Franco v. Clark, No. 07-267, 2007 WL 1544715, at *1 (E.D. Cal. May 25, 2007).*fn2
Nonetheless, petitioner's habeas petition is not subject to dismissal as moot if he can prove that actual collateral consequences are a likely--not merely speculative or ephemeral--result from the disciplinary action he challenges. Wilson, 319 F.3d at 481 & n.4. Petitioner identifies the delay or denial of his parole as the collateral consequence he will suffer if the 2006 disciplinary action remains in his record.
To show that the disciplinary action will delay or defeat the grant of his parole, petitioner submitted transcripts from his prior Parole Consideration Hearings.*fn3 First, when the Parole Board denied petitioner parole on March 14, 2002, it expressly warned petitioner that his receipt of another disciplinary action would adversely and unequivocally affect his chance of receiving parole in the future:
And the recommendations that we're making, Mr. Noor, is that you become, first of all, and you remain disciplinary free. In your case, sir, you cannot afford one disciplinary because when you get a disciplinary you have to put time between that disciplinary. And it's not just the Panel members, it's the totality of the review process. As I mentioned to you earlier it goes to decision review and from there to the governor and disciplinaries is like a kiss of death. You get a disciplinary, you just may as well give yourself additional time in prison. Especially the kind that you received, a Division E I believe it was. You cannot receive those, not even a 128(a). So, you need to get disciplinary free and you need to put some time between that . . . . [Y]ou have to be ...