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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 ...

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