The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the Report and Recommendation ("R&R") (Doc. # 9) of Magistrate Judge Jan M. Adler, filed on June 21, 2010, recommending that this Court dismiss Petitioner Robert Sheley's Petition for Writ of Habeas Corpus (Doc. # 1).
On October 6, 2009, Petitioner filed his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. # 1). On December 17, 2009, Respondents filed a Motion to Dismiss the Petition. (Doc. # 4). Petitioner filed an Opposition to the Motion to Dismiss on January 4, 2010. (Doc. # 5). The Magistrate Judge issued a Report and Recommendation on June 21, 2010. (Doc. # 9).
On August 30, 2010, Petitioner filed objections to the Report and Recommendation. (Doc. # 12). In his objections to the R&R, Petitioner makes essentially the same contentions that he made in his opposition to the motion to dismiss. (Doc. # 5, 12). Petitioner contends that he challenges the fact or duration of his sentence because the disciplinary report will prevent him from being eligible for parole. (Doc. # 12 at 2).
The R&R recommends that the Petition be dismissed with prejudice because, "Petitioner's claims are not cognizable on federal habeas review and instead must be raised, if at all, under § 1983." (Doc. # 9 at 6).
The duties of the district court in connection with a magistrate judge's report and recommendation are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court must "make a de novo determination of those portions of the report... to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. §636(b)(1); see also U.S. v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).
The Magistrate Judge states: "'Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus [28 U.S.C. § 2254].'" (Doc. # 9 at 4 (quoting Hill, 547 U.S. at 579)). The R&R states: "An inmate's challenge to the circumstances of his confinement, however, may be brought under [42 U.S.C. § 1983]." Id. (quoting Hill, 547 U.S. at 579).
The Magistrate Judge finds that Petitioner challenges prison disciplinary proceedings, but he "was not assessed any loss of good-time credits and thus the length of his imprisonment was not affected by the disciplinary finding." (Doc. # 9 at 6). The R&R finds that "[a]s with [Ramirez v. Galaza, 334 F.3d 850 (9th Cir. 2003)] Petitioner essentially seeks a finding of 'not guilty' on the disciplinary charge and/or an expungement of the guilty finding from his record." Id. (citing Ramirez, 334 F.3d at 859).
The R&R concludes that Petitioner merely speculates that his parole eligibility could be affected and he "has made no showing that expungement of the disciplinary finding from his record would be 'likely to accelerate' his eligibility for parole.'" Id. (quoting Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989)). The R&R concludes that "[t]he 'speculative impact' of the disciplinary proceedings on any future parole considerations is inadequate to serve as the basis for a habeas corpus petition." Id. (citation omitted).
The Court has reviewed de novo all aspects of the R&R, lodgments, and filings in this case and concludes that the Magistrate Judge correctly recommended that the Petition be dismissed because it is not a cognizable federal habeas corpus petition. Petitioner challenges his disciplinary proceedings and has not shown that expungement of the disciplinary finding would be ...