FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas corpus. See 28 U.S.C. § 2254. Respondent moves to dismiss the petition on the grounds that it fails to state a cognizable claim. For the reasons that follow, the motion to dismiss should be denied.
Petitioner is serving an indeterminate life term. Pet. at 2, 8.*fn1 He challenges a 2008 disciplinary action taken against him for allegedly having contraband (weapons and a cell phone) in his cell. Id. at 8. Petitioner was found guilty of possession of a deadly weapon, was assessed a SHU term, lost 360 days of good time credits, lost his privilege group status and was placed in a different level of custody. Id. at 15, 16. Petitioner alleges that the contraband belonged to his cellmate and he had no knowledge of it, that he was deprived of due process at the disciplinary hearing when he was not allowed to call witnesses, that staff falsified evidence against him, and that the evidence against him "is so slim as to be nonexistent." Id. at 9, 18, 21.
Petitioner alleges that because he has been found guilty of possessing a weapon and a cell phone, there is a "very strong likelihood" that he will be denied parole at his next hearing, whereas "absent the guilty finding, petitioner stood an excellent chance of receiving a parole date, after 30 years of incarceration." Id. at 16. He states that his chance to parole depends heavily on his conduct, and that he "had maintained an exemplary record of conduct and reform since receiving his last disciplinary violation . . . more than 18 years" ago. Id. at 14.
He further alleges that his loss of night yard, weekend and holiday yard, and night dayroom, and his loss of the right to pursue his vocation (which is needed in order to be found suitable for parole), show that he has been denied a liberty interest. Id. at 17.
II. 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 (i.e. ordering 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). Because the question presented on the motion necessarily calls into question the court's subject matter jurisdiction, analysis of the motion must begin with the fundamental threshold question of whether there is jurisdiction to hear petitioner's claim.
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.
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 2005. Dckt. No. 1 at 45.*fn2 Respondent argues that because petitioner has passed his MEPD, the loss of credits will not "necessarily spell speedier release" and that therefore the petition is not cognizable in habeas. Dckt. No. 11 at 4.
Petitioner has been sentenced to life for murder, so the California Code of Regulations, Title 15, Article 11 (Parole Consideration Criteria and Guidelines for Murders Committed on or After November 8, 1978) applies. See Dckt. No. 1 at 1. This statute explains that an inmate's MEPD is established by statute, and may be reduced by "good conduct" credits. Cal. Code Regs. tit. 15, § 2400. Inmates receive their initial parole hearing one year before the MEPD, and they continue to receive parole hearings until they are found suitable for parole. Cal. Penal Code § 3041(a). One factor "tending to show unsuitability" for parole is "[t]he prisoner has engaged in serious misconduct in prison or jail." Cal. Code Regs. tit. 15, § 2402(c)(6).
Once an inmate has been found suitable for parole, the Board of Prison Terms determines the length of time a prisoner must serve prior to actual release on parole by setting a base term and then adjusting the term by accounting for aggravating or mitigating circumstances. Id. at § 2400, 2403-2409. Next, the Board determines the amount of "post-conviction" credit an inmate should be granted, which reduces the length of time the inmate must serve. Id. at§§ 2403, 2410. In determining the amount of post-conviction credit, the Board "shall" consider the inmate's behavior in prison. Id. at § 2410(c)(3). The regulations state that no post-conviction credit "shall be granted in the case of any prisoner who commits serious . . . infractions of departmental regulations, violates any state law, or engages in other conduct which could result in rescission of a parole date (see Section 2451) unless the panel finds evidence in mitigation and supports such finding with a statement of its reasoning." Id. at § 2410(d). Section 2451 specifically provides that "possession of a weapon without permission" and "possession of escape tools without permission" are examples of conduct that may result in the rescission proceedings.
Respondent seems to argue that because petitioner had already passed his MEPD at the time of the disciplinary proceeding, the 360-day credit loss that he was assessed will not affect when he is released from prison. Dckt. No. 11 at 4. But petitioner argues that his 360 days of credit loss "will be assessed once he receives a parole date." Dckt. No. 1 at 15.
It appears that there are two possible ways that the disciplinary conviction may affect the length of petitioner's sentence. First, the Parole Board may find (possibly at multiple hearings) that petitioner is unsuitable for parole because of the disciplinary conviction. Second, if the Board eventually does find petitioner suitable for parole, the disciplinary conviction will likely prevent petitioner from receiving his post-conviction credits, and the duration of his confinement will be lengthened. Thus, to rule on respondent's motion to dismiss, the court must determine whether federal habeas jurisdiction ...