The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding without counsel, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2008 prison disciplinary conviction for possession of contraband (nudity) in violation of Cal. Code Regs. tit. 15, § 3006(c). Petitioner alleges that he was denied his right to call witnesses. As relief, petitioner seeks restoration of good time credits assessed as a result of the disciplinary finding and expungement of the conviction from his prison record.
Pending before the court is respondent's motion to dismiss filed January 19, 2011. On February 23, 2011, the court ordered petitioner to show cause for his failure to file an opposition. On March 1, 2011, petitioner filed a response to the show cause order and his opposition. Good cause appearing, the show cause order is vacated.
Respondent argues that this action should be dismissed for lack of jurisdiction. After carefully considering the record, the undersigned recommends that respondent's motion be granted.
This court has jurisdiction to consider habeas petitions where the petitioner is "in custody 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. § 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, 1096 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.")
Pursuant to California Code of Regulations § 2402(a), the Board of Prison Hearings ("BPH") 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, § 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.; § 2402(d)(9). Therefore, the BPH is required to consider petitioner's prison disciplinary record in determining his suitability for parole.
Respondent argues habeas jurisdiction is lacking because petitioner's challenge will not necessarily shorten petitioner's sentence. Respondent contends that the good time credits initially assessed were subsequently restored when petitioner's disciplinary conviction was reclassified as administrative rather than serious. (Respondent's Exhibits 3, 4.) Respondent goes on to argue that because petitioner's claims implicate only a condition of confinement, they are not cognizable in federal habeas and should be raised in a civil rights action.
In his opposition, petitioner does not dispute that his time credits were restored. Instead, petitioner argues that the BPH used the at-issue disciplinary conviction to find him unsuitable for parole. Attached as an exhibit to the opposition is the transcript of the "Decision" from petitioner's 2010 parole suitability hearing. In 2010, the BPH found petitioner unsuitable primarily based on his failure to take responsibility for his crime. (Dkt. No. 20, at 5-9; "I really still think you're still having trouble understanding that you are responsible for any of this..." (Id., at 7.)) The BPH also noted that it was troubled by the "dueling psychologists." (Id., at 9.) Petitioner had some positive psychological evaluations and some less than positive psychological evaluations. (Id.) The BPH noted the at-issue rules violation conviction, acknowledging that it had been reduced to an administrative violation. (Id., at 11-12; "If you're going to get a 115, it's certainly better than getting a violent 115 or a narcotic 115. But you're a lifer. You know the rules. You know those rules.") Regarding the at-issue disciplinary conviction, Deputy Commissioner Turner commented that it was not "really that bad." (Id., at 13.)
Petitioner has also attached transcripts from several prior parole suitability hearings. The at-issue conviction was not discussed at the prior hearings. However, in 2008 and 2007, the BPH advised petitioner that he would be found suitable for parole if he went for five years without any rules violation convictions. (Id., at 20, 23.)
Having reviewed the BPH's decision following petitioner's 2010 suitability hearing, the undersigned does not find that reversal or expungement of petitioner's disciplinary conviction 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. As discussed above, in 2010 the BPH found petitioner unsuitable for parole for several reasons. However, the factor relied on most strongly by the BPH in 2010 was petitioner's failure to accept responsibility for his crime. While the at-issue disciplinary conviction was mentioned and discussed, the BPH was not strongly influenced by it in finding petitioner unsuitable for parole. For these reasons, reversing or expunging the at-issue prison disciplinary is not likely to accelerate petitioner's eligibility for parole.
In his opposition, petitioner suggests that this disciplinary conviction directly impacts his parole eligibility because he has been told he must remain disciplinary free for five years before being found suitable. While petitioner received this advice, petitioner received a three year denial following the 2010 suitability hearing. (Dkt. No. 20, at 13.) In addition, at the 2010 hearing, the BPH acknowledged that the at-issue prison disciplinary conviction was administrative rather than serious. As discussed above, Deputy Commissioner Turner even stated that the conviction was not "that bad." For ...