The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO GRANT IN PART AND DENY IN PART RESPONDENT‟S MOTION TO DISMISS (Doc. 12) FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS
Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The instant petition was filed on November 1, 2011. (Doc. 1). On February 24, 2012, Respondent filed the instant motion to dismiss, contending that the Court lacks habeas jurisdiction over Petitioner‟s claims. (Doc. 12). On March 16, 2012, Petitioner filed his opposition to the motion to dismiss. (Doc. 16).
A. Procedural Grounds for Motion to Dismiss
As mentioned, Respondent has filed a Motion to Dismiss the petition for lack of jurisdiction. Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it 5 "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not 6 entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases. 7
The Ninth Circuit has allowed Respondent‟s to file a Motion to Dismiss in lieu of an Answer if 8 the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state‟s 9 procedural rules. See, e.g., O‟Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a Respondent can file a Motion to Dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12.
In this case, Respondent's Motion to Dismiss is based on the contention that the Court lacks jurisdiction over the habeas petition. Because Respondent's Motion to Dismiss is similar in procedural standing to a Motion to Dismiss for failure to exhaust state remedies or for state procedural default and Respondent has not yet filed a formal Answer, the Court will review Respondent‟s Motion to Dismiss pursuant to its authority under Rule 4.
B. Habeas Jurisdiction Exists To Review Petitioner‟s Claims.
1. General Principles of Habeas Jurisdiction.
A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the "legality or duration" of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485, 93 S. Ct. 1827 (1973); Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003)("[H]abeas jurisdiction is absent, and a § 1983 action proper, where a successful challenge to a prison condition will not 2 necessarily shorten the prisoner‟s sentence."); Advisory Committee Notes to Rule 1 of the Rules 3 Governing Section 2254 Cases. Indeed, claims challenging the validity of a prisoner‟s continued 4 incarceration, including the fact or length of the custody, lie within the "heart of habeas corpus" and 5 are cognizable only in federal habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 498-99, 499 n.14 6 (1973). In contrast, an action pursuant to 42 U.S.C. § 1983 is appropriate for a state prisoner 7 challenging the conditions of prison life but not the fact or length of the custody. McCarthy v. 8 Bronson, 500 U.S. 136, 141-42 (1991); Preiser v. Rodriguez, 411 U.S. at 499; Badea v. Cox, 931 9 F.2d 573, 574 (9th Cir. 1991).
With respect to prison disciplinary proceedings, it is established that a constitutional claim concerning the application of rules administered by a prison or penal administrator that challenges the duration of a sentence is a cognizable claim of being in custody in violation of the Constitution pursuant to 28 U.S.C. § 2254. See, e.g., Superintendent v. Hill, 472 U.S. 445, 454 (1985) (determining a procedural due process claim concerning loss of time credits resulting from disciplinary procedures and findings). The Supreme Court has held that challenges to prison disciplinary adjudications that have resulted in a loss of time credits must be raised in a federal habeas corpus action and not in a § 1983 action because such a challenge is to the very fact or duration of physical imprisonment, and the relief sought is a determination of entitlement of immediate or speedier release. Preiser v. Rodriguez, 411 U.S. 475, 500.
The Supreme Court‟s decisions concerning any boundaries between habeas jurisdiction and § 1983 jurisdiction have been rendered in cases involving § 1983 proceedings. Thus, it is established that regardless of the precise relief sought, an action pursuant to § 1983 concerning prison administrative processes is barred if success in the action would necessarily demonstrate the invalidity of the confinement or its duration, or necessarily imply the invalidity of a conviction or sentence. Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (parole processes). However, the limits on habeas jurisdiction, or the appropriate extent of any overlap between habeas and § 1983, has not been definitively addressed by the Supreme Court. The Supreme Court has referred to the possibility of 2 habeas as a potential alternative remedy to an action under § 1983 for unspecified additional and 3 unconstitutional restraints during lawful custody, Preiser v. Rodriguez, 411 U.S. at 499-500, but it has 4 declined to address whether a writ of habeas corpus may be used to challenge conditions of 5 confinement as distinct from the fact or length of confinement itself, see Bell v. Wolfish, 441 U.S. 6 520, 527 n.6 (1979). Nevertheless, the Court continues to recognize a "core" of habeas corpus 7 jurisdiction that refers to suits where success would inevitably affect the legality or duration of 8 confinement. For example, in Wilkinson, the Court noted that if success on a claim would mean at 9 most a new opportunity for review of parole eligibility, or a new parole hearing at which authorities could discretionarily decline to shorten a prison term, then success would not inevitably lead to release, and the suit would not lie at the core of habeas corpus. Wilkinson, 544 U.S. at 82.
In the singular context of parole, cases in this circuit have recognized a possibility of habeas jurisdiction in suits that do not fall within the core of habeas corpus. Bostic v. Carlson, 884 F.3d 1267 (9th Cir. 1989) (expungement of disciplinary finding likely to accelerate eligibility for parole)*fn1 ;
Docken v. Chase, 393 F.3d 1024 (9th Cir. 2004) (a claim challenging the constitutionality of the frequency of parole reviews, where the prisoner was seeking only equitable relief, was held sufficiently related to the duration of confinement). However, relief pursuant to § 1983 remains an appropriate remedy for claims concerning administrative decisions made in prison where success would not necessarily imply the validity of continuing confinement. Docken v. Chase, 393 F.3d at 1030 (characterizing Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997) as holding that a § 1983 suit is an appropriate remedy for challenges to conditions [there, administrative placement in a sex offender program affecting eligibility for parole] which do not necessarily imply the invalidity of continuing confinement).
Nevertheless, it is established in this circuit that where a successful challenge to a disciplinary hearing or administrative sanction will not necessarily shorten the overall length of confinement, then 2 habeas jurisdiction is lacking. In Ramirez v. Galaza, 334 F.3d 850 (9th Cir. 2003), a prisoner sought 3 relief pursuant to § 1983 for allegedly unconstitutional disciplinary proceedings that resulted in 4 administrative segregation. It was held that § 1983 was the appropriate remedy because the alleged 5 constitutional errors did not affect the overall length of the prisoner‟s confinement; success in the § 6 1983 action would not necessarily result in an earlier release from incarceration, and the § 1983 suit 7 did not intrude upon the core or "heart" of habeas jurisdiction. Ramirez, 334 F.3d at 852, 858. 8
The court in Ramirez went further and considered the related question of the extent of habeas
9 corpus jurisdiction, expressly stating that its holding "also clarifies our prior decisions addressing the availability of habeas corpus to challenge the conditions of imprisonment." 334 F.3d at 858. The court reviewed the decisions in Bostic v. Carlson and Neal v. Shimoda and concluded as follows:
Our decision in Neal v. Shimoda, 131 F.3d 818 (9th Cir.1997), illustrates the importance of measuring the likelihood that a suit under § 1983 will affect the length of the prisoner's confinement. In Neal, two state prisoners filed suits under § 1983 alleging that they were classified as sex offenders in violation of the Due Process and Ex Post Facto guarantees. Id. at 822-23. Among other harms, both inmates argued that the classification affected their eligibility for parole. Id. We held that Heck did not require the inmates to invalidate their classification before bringing suit under § 1983, because a favorable judgment "will in no way guarantee parole or necessarily shorten their prison sentences by a single day." Id. at 824. The prisoner suits did not seek to overturn a disciplinary decision that increased their period of incarceration. Rather, a successful § 1983 action would provide only "a ticket to get in the door of the parole board." Id. A favorable judgment, therefore, would not "undermine the validity of their convictions," or alter the calculus for their possible parole. Id.
Neal makes clear that under Preiser habeas jurisdiction is proper where a challenge to prison conditions would, if successful, necessarily accelerate the prisoner's release. Thus, Neal accords with our holding here 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.
Ramirez, 334 F.3d at 858-59.
Thus, habeas jurisdiction might be predicated on some conditions claims affecting parole if there is a sufficient nexus to the length of imprisonment or a sufficient likelihood of affecting the overall length of a prisoner‟s confinement. Docken v. Chase, 393 F.3d at 1030-31. However, the court has emphasized that measurement of the likelihood will result in an absence of habeas jurisdiction where the challenge will not necessarily shorten the overall sentence. Ramirez, 334 F.3d 2 at 859. In Ramirez, expungement of the disciplinary action was not shown to be likely to accelerate 3 eligibility for parole; rather, success there would have meant only an opportunity to seek parole from a 4 board that could deny parole on any ground already available to it. Thus, the suit did not threaten to 5 advance the parole date. Id. at 859. 6
Effective January 1, 1983, the California legislature added new § 2933 to the California Penal Code, eliminating the prior credit-earning system and instituting a new system of "work-time" credits 8 for performance in work assignments and educational programs up to a maximum of one day 9 reduction in term for each day of performance. 70 Ops. Cal. Atty. Gen. 49 (1987). However, § 2933 applies only to persons sentenced under Penal Code §1170. Persons convicted under § 1170 are those convicted of an offense for which the specified sentence is one of three time periods of imprisonment in state prison. Cal. Pen. Code § 1168.
2. Habeas Jurisdiction Exists In This Case As To Grounds Four Through Nine.
Here, Petitioner is serving a determinate ten-year sentence pursuant to a conviction in the San Bernardino County Superior Court. (Doc. 1, p. 18). Because Petitioner was sentenced to a determinate prison term, he is subject to the "work-time" credits under § 2933. Petitioner has alleged he was wrongfully validated as a gang member and thereafter placed in the Secure Housing Unit ("SHU"). (Doc. 1). Pursuant to 15 C.Cal.Reg. § 3043.4(b), "An inmate who is placed in SHU.upon validation as a prison gang member or affiliate is ineligible to earn credits pursuant to section 2933 or 2933.05 during the time he or she is in the SHU.." Petitioner alleges that, as a direct result of being placed in the SHU pursuant to his gang validation, he has lost, at the time of filing of the petition, 450 days‟ of credits that extended his release date from August 8, 2011 to November 21, 2012. (Doc. 1, p. 54). Respondent‟s motion to dismiss does not contradict this allegation.
Thus, by even the most cursory of analyses, a direct correlation between the allegedly unlawful administrative decision to validate Petitioner and place him in the SHU, on the one hand, and Petitioner‟s potential loss of work-time credits while in the SHU, on the other, can easily be made.
Put simply, a sufficient nexus exists between Petitioner‟s claims attacking Respondent‟s 2 administration decision to validate Petitioner and incarcerate him in the SHU and the length of 3 imprisonment or a sufficient likelihood of affecting the overall length of a prisoner‟s confinement 4 exists to justify habeas jurisdiction. Docken v. Chase, 393 F.3d at 1030-31. Unlike many cases where 5 no habeas jurisdiction is found because the effect of losing credits for an inmate serving an 6 indeterminate sentence, and who is also past his or her minimum eligible parole date, on the point 7 when the inmate is granted parole is simply too speculative to justify habeas jurisdiction, here the 8 correlation between lost credits and Petitioner‟s determinate sentence is both direct and proximate. 9
Compare Burton v. Adams, 2010 WL 703182 (E.D. Cal. Feb. 25, 2010)(no habeas jurisdiction for claim of wrongful gang validation because, as a "lifer," petitioner‟s loss of credits would not affect the length of his sentence), with Corral v. Gonzalez, 2010 WL 3069244 (E.D. Cal. Aug. 3, 2010)(withdrawing recommendation of dismissal for lack of habeas jurisdiction because petitioner serving determinate prison term established that loss of credits resulting from gang validation affected length of his sentence).
However, such a nexus exists only for claims challenging the lawfulness of Respondent‟s administrative decisions regarding SHU placement, either standing alone or as a consequence of gang validation, since SHU placement is the trigger for Petitioner‟s loss of work-time credits, which, in turn, is the sole factor that potentially affects the length of Petitioner‟s sentence. Claims that do not have a meaningful correlation to Respondent‟s administrative actions placing Petitioner in the SHU are necessarily unrelated to Petitioner‟s potential loss of credits and are therefore factors too attenuated from the length of Petitioner‟s sentence to justify habeas jurisdiction.
Here, in addition to Petitioner‟s challenges to the lawfulness of Respondent‟s gang validation and SHU placement, Petitioner raises three claims alleging that Respondent‟s administrative decisions were motivated by revenge and were ...