FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Therein petitioner challenges his 2009 prison rules violation conviction for constructive possession of a cellular phone. Before the court is respondent's motion to dismiss the petition pursuant to Rule 4 of the Rules Governing § 2254 Cases. Petitioner has filed an opposition and respondent has filed a reply.
On May 22, 2009, correctional officer Henderson discovered a cell phone in petitioner's locker during a routine bed area search. (Doc. No. 1 at 39.) A prison rules violation was issued to petitioner for possession of a camera cellphone. (Id.)
On May 27, 2009, a disciplinary hearing was held on the rules violation. (Id. at 41.) At the hearing, petitioner's cellmate inmate Ashley, testified that the cell phone in question belonged to Ashley and that he had placed it in petitioner's locker after other inmates yelled out a warning that a correctional officer was approaching.(Id. at 42.)
Nonetheless, petitioner was found guilty of the prison rules violation. (Id. at 43.) The hearing officer made the following finding:
The SHO is convinced that the phone was already in MITCHELL's locker making MITCHELL in possession of the cell phone through Constructive Possession . . . . This offense requires only proof that the item was contraband. This item qualifies as contraband as Inmate MITCHELL was in possession of an item, which is not authorized.
(Id.) Petitioner was assessed a 30-day loss of worktime credits, a 90-day suspension of Friday visiting privileges, and reduction of privilege group "C" for 90-days. (Id.)
Petitioner is serving an indeterminate life prison sentence pursuant to his judgment of conviction entered in the Alameda County Superior Court on June 12, 1991.*fn1 On August 2, 2011, petitioner had his initial parole consideration hearing before the California Board of Parole Hearings (Board). (Doc. No. 14-1 at 8.) Parole was denied at that time for a period of five years. (Id. at 97.)
Thereafter, on December 5, 2011 and after exhausting his claim before the state courts, petitioner filed the pending federal habeas petition challenging the guilty finding on the prison rules violation. Petitioner claims that the his federal and state due process and equal protection rights have been violated because he was not provided adequate notice of the prison disciplinary charge of constructive possession of a cellular phone, that such a disciplinary offense is not prohibited under the California Code of Regulations and that there has been an "under ground rule change" in the regulations if this were found to be a prison disciplinary violation. (Id. at 6, 8-9.) Petitioner seeks expungement of his prison rules conviction. (Id. at 21.)
I. Respondent's Motion to Dismiss
Respondent argues that petitioner has failed to raise a cognizable claim to federal habeas corpus relief because in light of his indeterminate life sentence he cannot establish that a successful challenge to his prison disciplinary conviction will affect the fact or duration of his confinement.
According to respondent, petitioner's circumstance is as follows. In 1991 petitioner was convicted of multiple crimes and sentenced to both a determinate prison term and to an indeterminate term of life imprisonment with the possibility of parole. (Doc. No. 14 at 3; Doc. No. 14-1 at 8.) In 1998, petitioner began serving his indeterminate life sentence. (Id.) Thus, petitioner's determinate prison term was served first and the earning or loss of time credits by petitioner impacted only when his indeterminate life term began to run. (Doc. No. 14 at 3-4.) Credit adjustments are used to set a minimum eligible parole date (MEPD) and the initial parole hearing is held one year before the MEPD. (Id. at 4.) Regardless of the MEPD, an inmate will not be released until the Board finds him suitable for parole. (Id.) Once the inmate is found suitable for parole, the Board sets a base term of confinement and has the discretion to shorten that term through a separate post-conviction credit scheme. However, the duration of the inmate's incarceration on an indeterminate life term is determinated by the Board, not by statutory credit earnings and losses. (Id.)
Respondent contends that petitioner's MEPD was adjusted after the time credit loss associated with the challenged prison disciplinary conviction and petitioner had his initial parole consideration hearing in 2011. (Id.) At that hearing, the Board found petitioner unsuitable for release and parole was denied for five years. (Id.) (citing Doc. No. 14-1 at 89-97). Respondent argues that adjusting petitioner's MEPD now would have no impact on when he is actually released from prison on parole since petitioner has already begun to receive parole consideration. (Doc. No. 14 at 4.) Therefore, respondent argues, ...