ORDER OVERRULING OBJECTIONS TO REPORT AND RECOMMENDATION; ORDER ADOPTING REPORT AND RECOMMENDATION; AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
LARRY ALAN BURNS, District Judge.
Petitioner Lenin Garcia filed his petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to Magistrate Judge Louisa Porter for report and recommendation, pursuant to 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Judge Porter issued her report and recommendation (the "R&R"), to which Garcia has filed written objections.
A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed.R.Civ.P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. The Court reviews de novo those portions of the R&R to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).
The R&R recommends denying the petition because Garcia seeks remedies unavailable through writ of habeas corpus, because he is not challenging the fact or length of his custody. The R&R summarizes Garcia's claim as arising from an allegedly groundless rules violation he received in retaliation for filing complaints against prison staff. He did not suffer a loss of good-time credits as a result of the disciplinary accusation, and the length of his sentence was unaffected by it. The R&R reasons that he is only challenging the conditions of his confinement, so the proper means of bringing his claim is an action pursuant to 42 U.S.C. § 1983.
Garcia's objections don't challenge the R&R's characterization of his claim. Rather, he argues that because the state courts where he first brought his claim were willing to treat his claim as one for habeas relief, this Court should do so as well. ( See Obj. to R&R (Docket no. 12), 1:24-2:12.) In fact, the state court decisions he attached to his traverse show he is mistaken. The traverse (Docket no. 10) includes a decision by the California Superior Court (Ex. 3 (Dkt. no. 10 at 24-27)) and the last reasoned decision, that of the California Court of appeal. (Ex. 4 (Dkt. no. 10 at 29-45).) Both decisions show that the state courts recognized Garcia thought he was pursuing habeas relief, but in fact there was no right to review for the injuries he claimed, and habeas jurisdiction was lacking. ( See Dkt. no 10 at 27:13-18; 29.)
The R&R, however, does not examine federal habeas jurisdiction closely enough, and the Court will therefore do so now. Under Ninth Circuit precedent, federal courts can exercise habeas jurisdiction where the expungement of a challenged prison disciplinary record is "likely to accelerate the prisoner's eligibility for parole." See Ramirez v. Galaza, 334 F.3d 850, 858 (9th Cir. 2003); Bostic v. Carlson, 884 F.2d 1267 (9th Cir. 1989). Although it is clear Garcia could bring a § 1983 suit for the types of deprivations he alleges here, it does not follow that he could not also vindicate his rights by means of habeas review. See Docken v. Chase, 393 F.3d 1024, 1027 (9th Cir. 2004) (noting that habeas and § 1983 can be available to remedy the same types of rights violations). For Garcia, the advantage of bringing a § 1983 action would include the ability to bring broader claims and potentially seek broader remedies, not merely expungement. Those remedies not not, however, include immediate or quicker release from confinement; that is available only via habeas review. See Docken at 1026-27. A great disadvantage would be that, because the relief he seeks-expungement of a disciplinary finding-necessarily implies the invalidity of that conviction, the "favorable termination" rule of Heck v. Humphrey, 512 U.S. 477, 487 (1994) would bar his claim. See Jackson v. Swarthout, 2013 WL 4049547, slip op. at *3 (E.D.Cal., Aug. 7, 2013) ( Heck bar applies to § 1983 actions seeking expungement of prison disciplinary findings, but not to habeas petitions). In fact, Heck contemplates that a complainant will first seek either direct review or habeas review, whichever is appropriate.
The Ninth Circuit has not elaborated on the degree of likelihood required for the "likely to accelerate" determination. See Birdwell v. Martel, 2012 WL 761914, at *4 and n.2 (E.D.Cal., March 7, 2012). The state court determined that although the write-up Garcia received was not itself disciplinary, the implications were potentially serious and it was "likely the Board for Parole Hearings would consider [such a write-up] in reaching a decision on parole." (Traverse, Ex. 1 (Docket no. 10 at 14-15).) This claim is still at the pleading stage, so the Court will liberally construe this evaluation, together with Garcia's own allegations, ( see Traverse at 10), as adequately pleading "likelihood of acceleration". In view of this, the Court believes it can exercise jurisdiction over Garcia's habeas claim, under Ramirez and Bostic. Because the law is unsettled, however, and because evidence of the likelihood of parole was not provided, the Court recognizes it is open to reasonable argument.
Ordinarily Garcia would be required to exhaust his claims in state court, but here, California's courts found habeas review was unavailable. See 28 U.S.C. § 2254(b)(1)((B)(i) and (ii) (providing that exhaustion of state court remedies is not required where there is an absence of available corrective process, or that process cannot effectively protect the applicant's rights).
On the merits, Garcia cannot prevail. His own allegations show he received the procedural protections required under Wolff v. McDonnell, 418 U.S. 539 (1974). He claims he was found guilty of this disciplinary violation based on evidence the trier of fact knew to be falsified. He claims the trier of fact was presented with "overwhelming exculpatory evidence which proves that petitioner is innocent of the charges" (Am. Pet., at 6; see also id., Appendix ("Summary of the Case, " Docket no. 3 at 14-20.)
Much of Garcia's "evidence" is in fact just his own arguments, and accusations of retaliation, and the evidence he does cite is not overwhelming or conclusive. He provides documentation showing that he had a pass to be in a classroom on October 22, 2008 from 8:50 to 10:00 (Pet., Ex. D), and that he asked for information from the prison log book and found that dayroom release for the his tier on that day was 9:15 to 10:15. The write-up, or chrono, (Pet., Ex. C), says that "at approximately 1000 hours" while Garcia was on dayroom release, Garcia presented Officer Reed with a memo saying he was free to go where he wanted to. The write-up says Garcia could not go out simply because he wanted to; that Garcia had spent half an hour playing cards in the dayroom instead of conducting Men's Advisory Council business as he was supposed to; and that Garcia was "constantly late in locking up and fails to program as the other inmates do" in the same housing unit. ( Id. ) The evidence for motive to retaliate is a grievance Garcia filed against Reed the previous year.
The state court reviewed the evidence and found Garcia made out a prima facia case for relief. It determined this because "all, if not portions of the chrono, appear arbitrary, unsupported by any evidence or fact, and/or based solely upon the opinion of the correctional officer." (Traverse, Ex. 1 (Docket no. 10 at 15).) At first blush, this might sound as if Garcia appeared to be clearly innocent. But on further review, it is clear the state court merely questioned whether disciplinary charges could properly be brought on Reed's opinion evidence, whether playing cards was a rules violation, and what the basis for the officer's conclusions about tardiness in locking up and failing to program. In other words, a prima facie case was not the overwhelming case Garcia claims it was.
It is important to remember that, because Garcia is seeking habeas relief, his claim is essentially that he was improperly found guilty of a disciplinary violation; it is not a claim against Reed for lying or falsifying evidence. The question, therefore, is whether he was denied due process of law. See Smith v. Goss, 2013 WL 4011606, at *9 (E.D.Cal., Aug. 6 2013) ("[T[he Due Process clause does not guarantee freedom from false testimony.")
Prisoners undergoing disciplinary proceedings are not entitled to all the rights that would normally attach in a criminal prosecution. Wolff, 418 U.S. at 556. Rather, they are only entitled to certain minimal protections. Id. Garcia's claim doesn't rest on allegations that any of these protections weren't met, and the record suggests they were met. With regard to the claim he focuses on-whether he was convicted on the basis of falsified evidence-it is clear that he was permitted to present his own evidence and put on a defense. He points to that evidence, in fact. When these procedural protections have been met, due process is satisfied. Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994). Compare Hanrahan v. Lane, 747 F.2d 1137, 1140-41 (7th Cir. 1984) (when an inmate has been afforded procedural due process in a disciplinary hearing, allegations of false charges fail to state a claim under § 1983).
Some Courts in this Circuit have subjected claims such as this to the "actual innocence" standard. See Napoleon v. Babcock, 2012 WL 1639881, at *8 (E.D.Cal., May 9, 2012). Habeas review does not amount to a de novo review by this Court of the evidence, to determine whether the Court would have made the same findings. Id. Rather, review is deferential and official proceedings are entitled to a presumption of correctness; the standard is "extremely high." Id. (citing Carriger v. Stewart, 132 F.3d 463, 476-77 (9th Cir. 1997)) ...