The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. Â§ 2254. Petitioner alleges that a 2008 prison disciplinary decision violated his federal due process rights because the disciplinary conviction affects his eligibility or suitability for parole, as well as the frequency of his parole hearings. (Dkt. No. 12.) Petitioner seeks dismissal of the CDC-115 based upon allegedly insufficient evidence to substantiate the guilty finding. Respondent has filed a motion to dismiss on the ground that petitioner fails to state a cognizable claim for federal habeas relief because his claim allegedly "does not necessarily implicate the fact or duration of his incarceration under his life sentence." (Dkt. No. 11 at 2.) Petitioner has filed an opposition and respondent has filed a reply. As explained below, the court recommends that respondent's motion to dismiss be denied.
This court has jurisdiction to consider habeas petitions where the petitioner is "incustody pursuant to the judgment of a State court" and alleges that "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. Â§ 2254(a). A writ of habeas corpus is not limited to immediate release from unlawful confinement, but rather is available to attack future confinement and obtain future releases. See Preiser v. Rodriguez, 411 U.S. 475, 487 (1973); see also Toussaint v. McCarthy, 801 F.2d 1080, 1094 n.14 (9th Cir. 1986)*fn1 ("To the extent that defendants may from time to time deny the credits due under sections 2931 and 2933, without affording a prisoner due process of law, that prisoner may obtain habeas corpus relief."). A prisoner may challenge a prison disciplinary conviction by petition for writ of habeas corpus if the conviction resulted in the loss of good time credits because credits impact the duration of the prisoner's confinement. Preiser at 487-88 (suit seeking restoration of good time credits was "within the core of habeas corpus in attacking the very duration of their physical confinement itself"). In dicta, the court in Preiser noted that such a challenge is permissible even if restoration of the credits would not result in the prisoner's immediate release from prison. Id.
"Habeas corpus jurisdiction also 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." Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989); see also Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004) ("[W]e understand Bostic's use of the term 'likely' 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 Preiser Court.")
Here, the court has habeas corpus jurisdiction over petitioner's due process claims in connection with his 2008 disciplinary hearing and thirty days loss of credits imposed as a result. In 1996, petitioner was sentenced to life in state prison for attempted murder. (Dkt. No.11, Ex. 1.) Although petitioner is serving an indeterminate sentence, the Board of Parole Hearings ("Board") is already considering him for parole suitability.
Moreover, pursuant to California Code of Regulations Â§ 2402(a), the Board is required to determine petitioner's suitability for parole by considering: his "involvement in other criminal misconduct which is reliably documented;" his "behavior before, during, and after the crime;" and whether he "has engaged in serious misconduct in prison or jail." Cal. Code Regs. tit. 15, Â§ 2402(b), (c)(6) (2010). Institutional behavior is given additional consideration because "[i]nstitutional activities indicate an enhanced ability to function within the law upon release." Id. Â§ 2402(d)(9). Therefore, the Board is required to consider petitioner's prison disciplinary record in determining his suitability for parole.
Petitioner's prison discipline for possession of contraband is "criminal misconduct which is reliably documented." Id. Â§ 2402(b). The Board is required to consider the violation because it reflects on petitioner's behavior "after the crime." Id. While the prison discipline was not the main focus for the Board's denial of parole to petitioner in 2009,*fn2 the Board warned petitioner he should "become disciplinary free. No more 115s or 128s." (Dkt. No. 13-1 at 74.) This was the same warning given petitioner in 2007. (Id. at 31.) Ultimately, the Board found petitioner unsuitable for parole and issued him a five-year denial. (Dkt. No. 13-1 at 74.)
Respondent argues habeas jurisdiction is lacking because petitioner's challenge will not necessarily shorten petitioner's sentence, relying, inter alia, on Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003).*fn3 This court is unpersuaded by respondent's argument. Reversal or expungement of petitioner's conviction for the rules violation, if warranted, is both "likely" to accelerate his eligibility for parole, Bostic, 884 F.2d at 1269, and "could potentially affect the duration of [his] confinement." Docken, 393 F.3d at 1031. See, e.g., Murphy v. Dep't of Corrs. & Rehabilitation, No. C 06-4956 MHP, 2008 WL 111226 at *7 (N.D. Cal. Jan. 9, 2008) (habeas corpus jurisdiction is proper over challenge to disciplinary guilty finding because "[a]s a matter of law, it is well established that a disciplinary violation may affect the duration of an inmate's confinement."); Drake v. Felker, S-07-0577 JKS, 2007 WL 4404432 at *2 (E.D. Cal. Dec. 13, 2007) (habeas corpus jurisdiction found to exist over a challenge to a disciplinary decision because "a negative disciplinary finding, at least in California, necessarily affects potential eligibility for parole"); Bryant v. Scribner, No. 06-1856 JM(LSP), 2007 WL 3276280 at *4 (S.D. Cal. Nov. 5, 2007) (habeas corpus jurisdiction found proper over a challenge to a rules violation report resulting in 150 days loss of credits). Accordingly, the pending motion to dismiss should be denied, and respondent should be directed to file an answer to the petition.
DEPUTY COMMISSIONER POE: Okay. And you received 30 days, right? [PETITIONER]: Yes, that's correct. (Dkt. No. 13-1 at 31.) Later in the hearing, petitioner's attorney offered to introduce a chrono regarding a 115 cell phone incident for petitioner's bunkee, inmate Lopez, in which the officer "says that he saw the inmate throw the cell phone down." (Id. at 54.)
IT IS HEREBY RECOMMENDED that:
1. Respondent's August 23, 2010 motion to dismiss (dkt. no. ...