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Robin Lynn Bailey v. Gary Swarthout


September 9, 2011


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge



Petitioner, a state prisoner proceeding pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Presently pending is respondent's motion to dismiss for failure to state a federal claim (within habeas corpus jurisdiction), filed on December 6, 2010. (Doc. No. 18.) Petitioner filed an opposition on February 3, 2011, and respondent filed a reply on February 17, 2011. (Doc. Nos. 22, 23.)

Generally, the undersigned has a rule that if the assigned district judge has written on the precise subject at issue in an earlier action, the previous opinion will direct the result in the action at bar. The undersigned departs from that rule only if the Ninth Circuit has eviscerated the rule in the previous opinion, or the undersigned respectfully requests that the district judge revisit the previous opinion based on the weight of authority and the facts of this case. The undersigned's departure from Judge Mendez' previous opinion on the issue in this motion to dismiss (discussed at length infra) is based on aspects of both exceptions.


Petitioner is serving a term of twenty-four years to life for second degree robbery, assault with a firearm, and possession of a firearm. (Respondent's Motion to Dismiss (hereinafter "MTD"), Ex. A.) Petitioner challenges a 2008 prison disciplinary finding that he was guilty of the specific act of escape, for which he was assessed a 150-day credit loss. (Id., Ex. 2 (Rules Violation Report dated June 18, 2008)). Petitioner claims that there was insufficient evidence to support the finding that he committed the act of escape and that such a finding was arbitrary and capricious, in violation of his constitutional due process rights. (Petition at 4.) Motion to Dismiss

In the motion to dismiss, respondent argues that the 150-day credit loss does not impact the duration of petitioner's life term, because when petitioner "is released from prison will depend on when the parole board finds him suitable for parole, what base term the board sets for [him], and how much post-conviction credit the board elects to apply to that term." (MTD at 3.) Petitioner counters that, even without the 150-day credit loss, the disciplinary conviction for escape is a serious disciplinary action that precludes him from being granted any post-conviction credits and "inevitably impacts petitioner's life sentence in an adverse manner." (Petitioner's Opposition to MTD (hereinafter "Opp.") at 3-6, citing 15 CCR § 2410(d) ("No annual post-conviction credit shall be granted in the case of any prisoner who commits serious (as defined in 15 CCR section 3315) or numerous (more than three) infractions of departmental regulations, violates any state law, or engages in other conduct which could result in rescission of a parole date . . . unless the panel finds evidence in mitigation")). In reply, respondent avers that the "post-conviction credit scheme" only applies once the Board has found an inmate suitable for parole, and that "it is speculative to assume that," if the Board grants petitioner relapse on parole, "this disciplinary decision would affect the award of discretionary credit[.]" (Respondent's Reply at 2-3.)

A June 18, 2008 Rules Violation Report summarizes the events leading to the challenged disciplinary conviction as follows: Petitioner, who at that time was assigned to a culinary crew, was found "hiding behind storage units located next to O-Wing behind the maintenance area" wearing "gray sweatpants and a state issued blue nylon jacket with the embossed letters 'CDC' blacked out." When correctional officers attempted to locate petitioner's cellmate, they "discovered the cell unoccupied" and found "that two window bars approximately nine inches long located on the lower section of the window had been cut and removed, along with three (3) six inch by nine inch (6" x 9") glass windows." A 9" x 18" portion of the expanded metal covering the windows "had been cut and removed[,]" and clothing, sheets and mesh bags had been "placed under the blanket of the upper bunk to give the appearance that the bunk was occupied." (MTD, Ex. 2 at 5-6.*fn1

At a disciplinary hearing on July 24, 2008, petitioner pled not guilty to the charge of escape in violation of CCR § 3015(c), stating: "It's not an escape, it's attempted escape because I never left the prison. This RVR should be a Division 'C.'" (MTD, Ex. 2 at 11.) Petitioner was found guilty and sentenced to 150 days forfeiture of credit, consistent with a Division "B" offense. (Id. at 5.)


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, 93 S.Ct. 1827 (1973); see also Toussaint v. McCarthy, 801 F.2d 1080, 1096 n.14 (9th Cir. 1986)*fn2 ("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.

In Rhodes v. Evans, CIV-S-09-1842 JAM EFB (Order of April 4, 2011), the Honorable John A. Mendez determined in a case much like the present one that a disciplinary violation could [never] proceed in habeas because:

The Court finds that Ramirez v. Galaza, 334 F.3d 850 (9th Cir. 2003) is directly on point and controlling. In Ramirez, the Ninth Circuit held that "habeas jurisdiction is absent...where a successful challenge to a prison condition will not necessarily shorten [a] prisoner's sentence." Id. At 859. In this case, Plaintiff is challenging a prison disciplinary decision that will not necessarily spell earlier release. Accordingly, his challenge is not cognizable in federal habeas. (Emphasis added).

However, Ramirez had to deal with prior circuit precedent, Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) which held, as recognized in Ramirez, at 858, that habeas jurisdiction did exist if the "expungement of a disciplinary finding from his record [would] likely [] accelerate the prisoner's eligibility for parole." Despite the recognition of prior circuit precedent, the "likely to accelerate" holding of Bostic was thereafter transmuted into the "necessarily shorten" statement in Ramirez.. It took the Ninth Circuit only a few short months to cast Ramirez aside. Docken v. Chase, 393 F.3d 1024 (9th Cir. 2004). In determining that habeas jurisdiction did exist in a claim regarding extension of a parole eligibility review, this panel cited to Ramirez' accurate description of the Bostic, "likely" holding, Docken, at 1028, and distinguished Ramirez' "necessarily shorten" holding because "Ramirez concerned a challenge to internal disciplinary procedures and the administrative segregation that resulted from it. Ramirez's suit did not deal with the fact or duration of his confinement." Docken, at 1030, n.4. Docken went on to hold at p. 1031, that although a civil rights action was one possible avenue of relief for its situation, "[w]e therefore hold that when prison inmates seek only equitable relief in challenging aspects of their parole review that, as long as they prevail, could potentially affect the duration of their confinement, such relief is available under the federal habeas statute."

This case does not involve the mere transfer of a prisoner to administrative segregation, but involves the prison conviction of a serious disciplinary charge which will undoubtedly, in a realistic sense, if left standing, affect the duration of confinement. Pursuant to California Code of Regulations § 2402(a), the 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. Indeed, criminal conduct, or quasi criminal conduct is a factor more related to the overarching public safety consideration for parole eligibility than perhaps any other factor.

The majority of courts considering similar issues to the one here have found habeas jurisdiction to exist. See, e.g., Morris v. Haviland, 2011 WL 3875708 (JAM EFB) (E.D. Cal. Sept. 1, 2011) (again recommending to Judge Mendez that habeas jurisdiction exists in the same circumstances of this case); Allen v. Swarthout, S-10-3257 GEB GGH P, 2011 WL 2075713 at *2-3 (E.D. Cal., May 23, 2011) (Findings and Recommendations recommending that habeas jurisdiction exists for a challenge to a disciplinary decision, adopted by district judge on July 8, 2011); Hardney v. Carey, S-06-0300 LKK EFB, 2011 WL 1302147 at *5-8 (E.D. Cal. Mar. 31, 2011) (same, adopted by district judge on June 6, 2011); Johnson v. Swarthout, S-10-1568 KJM DAD, 2011 WL 1585859 at *2-3 (E.D. Cal. Apr. 22, 2011) (same, but no decision yet from the district judge); Foster v. Washington-Adduci, 2010 WL 1734916 at *4 (C.D. Cal. Mar. 24, 2011) (Respondent's reliance on dictum from Ramirez was not persuasive in case brought under § 2241 in the federal prison context ); Murphy v. Dep't of Corrs. & Rehabilitation, 2008 WL 111226 at *7 (N.D. Cal. Jan. 9, 2008) (habeas corpus jurisdiction is proper to challenge a 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").

The undersigned also notes that some district courts have held the opposite. See e.g., Legare v. Ochoa, S-10-2379 AWI, 2011 WL 795811 at *1 (E.D. Cal. Mar. 1, 2011) (Findings and Recommendations recommending that habeas jurisdiction does not exist for a challenge to a disciplinary decision, but no decision yet from the district judge); Norman v. Salazar, 2010 WL 2197541 at *2 (C.D. Cal. Jan. 26, 2010) ("the mere possibility that the 2006 disciplinary conviction could be detrimental to Petitioner in future parole hearings is too speculative to serve as the basis for a habeas corpus petition"); Santibanez v. Marshall, 2009 WL 1873044 at *7 (C.D. Cal. June 30, 2009) (claim seeking expungement of disciplinary conviction not cognizable on habeas review because it would have only speculative impact on the petitioner's consideration for parole in the future).

However, based on the record in the instant case, the undersigned finds that petitioner has stated a federal claim within habeas corpus jurisdiction. As set forth above, in determining whether to release petitioner on parole at any future parole hearing, the BPH is required to consider the violation because it reflects on petitioner's behavior "after the crime." Cal. Code Regs. tit. 15 § 2402(b). While it is arguable that some disciplinary findings could be too insignificant for habeas jurisdiction, a disciplinary conviction for escape is a serious black mark on petitioner's prison record. Thus, it is at least 'likely' that expungement of the disciplinary finding could accelerate petitioner's eligibility for parole, notwithstanding whether petitioner would be eligible for post-conviction credit following a BPH decision to release him on parole. Therefore, the instant disciplinary finding is significant enough to warrant habeas review from this court.*fn3

Accordingly, IT IS HEREBY RECOMMENDED that respondent's December 6, 2010 motion to dismiss (Doc. No. 18) be denied and respondent shall file an answer to the petition within sixty days, if these findings and recommendations are adopted.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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