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Johnson v. Gower

United States District Court, Ninth Circuit

June 28, 2013

ANTHONY W. JOHNSON, Petitioner,
v.
B. GOWER, Warden, Respondent.

FINDINGS AND RECOMMENDATIONS

ALLISON CLAIRE, Magistrate Judge.

Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a prison disciplinary proceeding in which he was found guilty of participating in a riot. ECF No. 1. Pending before the court is respondent's motion to dismiss, ECF No. 13, filed on February 12, 2013, which is fully briefed.

Petition

On August 22, 2011, petitioner was found guilty in a disciplinary proceeding at Centinela State Prison of participation in a riot in violation of 15 Cal. Code Regs. § 3005(d)(1), a Division "D" offense. Petition at 17, 41 (copy of hearing transcript for Rules Violation Report FC-11-07-144); see also Resp. Ex. 8, ECF No. 13-8 at 40. The grounds of petitioner's challenge are: (1) insufficient evidence to support a finding of a guilt in violation of his right to due process and (2) actual innocence of the disciplinary charge. Petition at 1-2, 6-12.

Petitioner was assessed a 90-day behavioral credit forfeiture as well as a ten-day loss of privileges "to include Ad-Seg yard." Petition at 17, 41. Petitioner seeks to have the rules violation report ("RVR") expunged. Id. at 11. Petitioner contends as a result of the disciplinary decision a SHU (security housing unit) term was "imposed unlawfully" and that he is "being denied privileges." Id. at 1, 13.

Motion to Dismiss

Respondent moves for dismissal of the petition, contending that: (1) the petition is moot because petitioner's lost credits were restored prior to the filing of the instant petition; (2) federal habeas jurisdiction is absent because the petition cannot affect the fact or duration of petitioner's confinement; (3) the claims are procedurally defaulted because petitioner failed to exhaust his administrative remedies as required by California law; (4) the petition is unexhausted because the state courts did not reach the merits of his claims. ECF No. 13 at 3-6.

Discussion

This Court Lacks Jurisdiction

Habeas corpus jurisdiction extends to a prisoner's claim that he has been deprived of due process in prison disciplinary proceedings, if expungement of the disciplinary decision is "likely to accelerate the prisoner's eligibility for parole." Bostic v. Carlson , 884 F.2d 1267, 1269 (9th Cir. 1989). This rule follows from the basic principle that habeas provides the remedy for constitutional violations affecting the fact or duration of custody. Id . (citing Preiser v. Rodriguez , 411 U.S. 475, 487-88 (1973)); see also Wilkinson v. Dotson , 544 U.S. 74, 82 (2005) (when claim would not "necessarily spell speedier release, " it falls outside the scope of habeas jurisdiction). Where a prison disciplinary finding has a non-speculative relationship to the actual duration of confinement, it therefore comes within the scope of habeas jurisdiction; otherwise it does not. See Ramirez v. Galaza , 334 F.3d 850, 859 (9th Cir. 2003), cert. denied, 541 U.S. 1063 (2004).

The court will assume for purposes of analysis that the permanent forfeiture of good time credits in this case would have had a sufficient nexus to petitioner's eventual release date to support habeas jurisdiction.[1] However, the credits that petitioner lost as the result of the challenged disciplinary decision were restored before the petition was filed. Respondent's Exhibit 1 is a classification committee program review form (CDCR Form 128G) dated August 28, 2012, which states, in relevant part:

Subject requested restoration of credit on RVR Log# FC-11-07-144, dated 7-16-11, for Participation in a Riot. Subject was found guilty and assessed 90 days loss of credit for the Division D[] offense. Committee notes, Subject is eligible for restoration of credit on the RVR. Therefore, committee elects to restore 90 days of credit on RVR Log# FC-11-07-144, dated 7-16-11, and refer the case to the CCRA for time computation.

Resp. Ex. 1, ECF No. 13-1, at 2.

The subsequent restoration of credits is documented in petitioner's Legal Status Summary sheet, Respondent's Exhibit 2 (ECF No. 13-2) at 3, and in petitioner's CDCR Chronological History, Respondent's Exhibit 3 (ECF No. 13-3). The latter document contains the following entry dated September 18, 2012: "WCR 90 Days, Log # 1107144, 128G DTD 8/28/12, Correction to Credit Applied Through Date On Previous Calculation Sheet." Respondent explains that this means that 90 days of work credit were restored for RVR Log No. 1107144, pursuant to ...


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