ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. Petitioner requests appointment of counsel. Respondent moves to dismiss the petition on the grounds that it fails to state a claim cognizable in a federal habeas corpus petition. For the reasons that follow, the undersigned denies the request for counsel and recommends that the motion to dismiss be granted but that petitioner be granted leave to file an amended petition.
The petition concerns disciplinary action taken against petitioner in January 2008 for allegedly failing to report to work. Dckt. No. 1 at 5-9.*fn1 On January 29, 2008, petitioner was found guilty of refusing to work and was assessed a loss of 30 days' credit, among other punishments. Id. at 28 (Ex. B). Petitioner alleges that he was deprived of due process at the disciplinary hearing because the hearing officer refused to call witnesses and that he was further deprived of due process and equal protection because the alleged infraction was minor and should have resulted in progressive disciplinary action rather than "a CDC-115 for violation of not going to work for missing one day." Id. at 9.
In his opposition to respondent's motion to dismiss, petitioner requests that the court appoint him counsel. Dckt. No. 22 at 3. There currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). The court may appoint counsel at any stage of the proceedings "if the interests of justice so require." See 18 U.S.C. § 3006A; see also, Rule 8(c), Rules Governing § 2254 Cases. The court does not find that the interests of justice would be served by the appointment of counsel at this stage of the proceedings.
III. Respondent's Motion to Dismiss
Respondent moves to dismiss the petition pursuant to Rule 4 of the Rules Governing § 2254 Cases in the U.S. District Courts for failure to state a cognizable claim. This court has authority under Rule 4 to dismiss a petition if it "plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." As a corollary to that rule, the court may also consider a respondent's motion to dismiss, filed in lieu of an answer, on the same grounds. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as the procedural vehicle to review a motion to dismiss for state procedural default). Respondent argues that petitioner's claim is not cognizable in a habeas petition because petitioner has not established that issuance of the writ (requiring that the disciplinary conviction be expunged) would necessarily shorten the duration of his confinement.
"Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871, Rev Stat § 1979, as amended, 42 U.S.C. § 1983. Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus . . .; requests for relief turning on circumstances of confinement may be presented in a § 1983 action." Muhammad v. Close, 540 U.S. 749, 750 (2004) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)).While not expressly framed as such, respondent's argument is a jurisdictional one -- respondent claims that success on the petition will not impact petitioner's custody and thus the court is without power to hear the case under the habeas statute. See Docken v. Chase, 393 F.3d 1024, 1028-29 (9th Cir. 2004) (treating the issues of whether a claim that could potentially impact the duration of custody was cognizable or was within the court's federal habeas jurisdiction as interchangeable). The party seeking to invoke the jurisdiction of a federal court bears the initial burden of pleading facts sufficient to establish jurisdiction. McNutt v. Gen'l Motors Acceptance Corp., 298 U.S. 178, 182 (1936); Jackson v. Cal. Dep't of Mental Health, 399 F.3d 1069, 1074 (9th Cir. 2005); United States v. Bustillos, 31 F.3d 931, 933 (10th Cir. 1994). Thus, the court must determine whether petitioner has alleged sufficient facts in the petition to show that the challenged actions impacted his custody in a manner sufficient to invoke the court's jurisdiction under the habeas statute.
This determination is complicated by a current lack of clarity in case law regarding whether a potential, rather than certain, impact on custody is sufficient to invoke federal habeas jurisdiction. While the U.S. Supreme Court has repeatedly held that a prisoner who seeks immediate or speedier release from custody (alleging a definite impact on custody in what is often termed a "core" habeas challenge) must pursue his case through a habeas petition rather than a § 1983 action, the Court has not explicitly held that a prisoner whose challenge might not result in speedier release must press his case under § 1983 rather than a habeas petition. See Docken v. Chase, 393 F.3d 1024, 1028 (9th Cir. 2004) (noting that, "although Supreme Court case law makes clear that § 1983 is not available where a prisoner's claim 'necessarily' implicates the validity or duration of confinement, it does not set out any mirror-image limitation on habeas jurisdiction."). However, where a challenge does not even indirectly implicate the fact or duration of the petitioner's confinement, the Ninth Circuit Court of Appeals has concluded that the challenge is not cognizable in a habeas petition.*fn2 Crawford v. Bell, 599 F.2d 890, 891-92 (9th Cir. 1972) (holding that a challenge to allegedly cruel and unusual prison conditions could not be brought via habeas); see id. at 891 ("[T]he writ of habeas corpus is limited to attacks upon the legality or duration of confinement."); see also Muhammad, 540 U.S. at 754-55 (stating that the plaintiff, who brought a retaliation claim against a prison official, had raised no claim on which habeas relief could have been granted on any recognized theory).
Generally, a prisoner challenging a disciplinary action with an attendant loss of time credits must pursue the challenge in a habeas petition, because a decision in the case in the prisoner's favor would require restoration of the lost time credits and would therefore accelerate the inmate's date of release, making the case the type of "core" habeas challenge that must be pursued by habeas petition. Preiser, 411 U.S. at487-88, 490. \\\ Here, however, petitioner is a life-term inmate who passed his Minimum Eligible Parole Date ("MEPD") in 1977. Resp.'s Mot. to Dismiss, Ex. 1. Respondent argues that, at the time the discipline challenged here was imposed, petitioner was serving the portion of his sentence in which the duration of his confinement is controlled solely by the Board of Parole Hearings ("BPH"). See Cal. Code Regs. tit. 15, §§ 2280-2292. According to respondent, the credit losses assessed against petitioner at his hearing concerned a type of time credit which could only advance petitioner's MEPD but could not impact the BPH's determination of when to release petitioner.*fn3 See Cal. Pen. Code § 2931. Because petitioner's MEPD had long passed at the time of the discipline challenged here, respondent argues, expungement of the disciplinary finding and accordant restoration of the time credits would not advancepetitioner's release.
Petitioner does not contend that restoration of the credit losses would directly advance his release date or otherwise challenge respondent's characterization of California's parole-release system.Accordingly, the undersigned accepts respondent's argument that restoration of the lost credits here would not itself advance petitioner's date of release. This fact places petitioner's case in the same position as that of a habeas petitioner who challenges a disciplinary action that carries no credit loss. Prisoners in this situation often argue that their disciplinary convictions will nevertheless impact the duration of their confinement because they provide a basis on which the BPH may deny parole.*fn4 Thus, to rule on respondent's motion to dismiss, the court must determine whether habeas jurisdiction exists when a petitioner challenges prison discipline that will possibly, but not definitely, impact the duration of his confinement by influencing the decision of the relevant parole authority on whether and when to grant the petitioner conditional release.
Courts within the Ninth Circuit have not responded uniformly to this issue. Compare, e.g., Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) ("Habeas 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."); Hardney v. Carey, No. CIV S-06-0300 LKK EFB P, 2011 U.S. Dist. LEXIS 35603, at *18-22 (E.D. Cal. Mar. 31, 2011) (recommending that the district court find that a challenge to a disciplinary conviction carrying no credit loss was cognizable in habeas because of its likely impact on parole eligibility, adopted in full by district court order dated June 6, 2011); Johnson v. Swarthout, No. CIV S-10-1568 KJM DAD P, 2011 U.S. Dist. LEXIS 43798, at *4-8 (E.D. Cal. Apr. 22, 2011) (same); and Silva v. Cal. Dep't of Corr., No. CIV S-03-1508 DFL GGH P, 2005 U.S. Dist. LEXIS 32046, at *2-3 (E.D. Cal. Dec. 9, 2005) (same, adopted in full by 2006 U.S. Dist. LEXIS 3661 (E.D. Cal. Jan. 31, 2006)) with Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003) (stating that "habeas jurisdiction is absent, and a § 1983 action proper, where a successful challenge to a prison condition will not necessarily shorten the prisoner's sentence."); Everett v. Yates, No. CIV F-0150 AWI GSA HC, 2011 U.S. Dist. LEXIS 23224, at *2-5 (E.D. Cal. Mar. 8, 2011) (recommending the dismissal of a habeas petition challenging a disciplinary conviction with no attendant credit loss, because the potential impact of the conviction on the petitioner's parole prospects was "entirely speculative"); and Perrotte v. Salazar, No. ED CV 06-00539-JOHN (VBK), 2010 U.S. Dist. LEXIS 140385, at *9-16 (C.D. Cal. Nov. 8, 2010) (same, adopted in full by 2011 U.S. Dist. LEXIS 6606 (C.D. Cal. Jan 24, 2011)).*fn5 As is apparent from these cases, courts within this circuit have varied when addressing habeas challenges to prison disciplinary decisions that would have an impact on the duration of confinement only to the extent that they may affect the petitioners' parole eligibility. A brief discussion of the apparent source of the disagreement and the various approaches courts have taken is appropriate.
Three Ninth Circuit cases are central to the controversy: Bostic v. Carlson, 884 F.2d 1267 (9th Cir. 1989), Ramirez v. Galaza, 334 F.3d 850 (9th Cir. 2003), and Docken v. Chase, 393 F.3d 1024 (9th Cir. 2004). In Bostic, the court of appeals reviewed district court dismissals of ten separate habeas petitions filed by the same petitioner, challenging nine prison disciplinary actions taken against him. 884 F.2d at 1269. Prison officials had assessed a forfeiture of good-time credits for some of the infractions, but the remainder did not carry a loss of time credits -- only a term of segregated housing. Id. at 1269. In each of the petitions, the petitioner sought expungement of the infractions from his disciplinary record. Id. The court "assume[d]" that habeas jurisdiction existed over all the petitions, even those challenging discipline with no attendant credit loss, stating:
Habeas corpus jurisdiction is available under 28 U.S.C. § 2241 for a prisoner's claim that he has been denied good time credits without due process of law. [citations] Habeas corpus jurisdiction is also available for a prisoner's claims that he has been subjected to greater restriction of his liberty, such as disciplinary segregation, without due process of law.[*fn6 ] [citations] Habeas corpus jurisdiction also exists when a petitioner seeks expungement of a disciplinary finding from his record if ...