United States District Court, E.D. California
FINDINGS AND RECOMMENDATION
ALLISON CLAIRE, Magistrate Judge.
Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1). Pending before the court is respondent's motion to dismiss the petition on the ground that petitioner's only claim for relief is not cognizable on habeas (ECF No. 10). Petitioner opposed the motion (ECF No. 13), and respondent has filed a reply (ECF No. 15). For the reasons outlined below, the undersigned recommends denying the motion to dismiss.
I. Factual and Procedural Background
Petitioner was convicted in 1988 of Second Degree Murder following his guilty plea. ECF No. 10-1 at 2. He was sentenced to 16 years to life in prison. Id . His minimum eligible parole date ("MEPD") was originally calculated to be September 29, 1997. ECF No. 10-1 at 6. As a result, his first parole consideration hearing occurred in 1996, a year before his MEPD. See ECF No. 10-1 at 5.
On September 20, 2011, petitioner received a Rules Violation Report ("RVR") for possessing a cell phone and charger in a prison facility. ECF No. 13 at 16-19. At a disciplinary hearing on October 10, 2011 petitioner was found guilty of the RVR and assessed a 30 day loss of credit. Id.
Petitioner filed the present federal habeas corpus petition challenging the 2011 prison disciplinary proceeding on June 18, 2013. ECF No. 1. In this petition, he alleges that the RVR is not supported by evidence of his constructive possession of the cell phone and charger because he had no knowledge or control of the contraband. Id . at 4. By way of relief, petitioner seeks the reversal of his guilty finding, the expungement of all references to this disciplinary conviction, and an order that he be single celled "until such time as respondent does not hold him responsible for the actions of the convicts that are placed into his cell." ECF No. 1 at 4.
II. Respondent's Motion to Dismiss
In his motion to dismiss, respondent contends that habeas jurisdiction only lies for challenges that result in "release from prison or a shorter incarceration" and that petitioner's challenge to restore his lost custody credits will not necessarily shorten his prison term. ECF No. 10 at 3-4 (citing Skinner v. Switzer , 131 S.Ct. 1289, 1293 (2011)). Since petitioner is serving an indeterminate sentence of sixteen years to life, his loss of custody credits only affects the calculation of his minimum eligible parole date, which had already passed by the time the RVR was issued. Id . at 4. Therefore, the 2011 prison disciplinary finding does not affect the calculation of petitioner's sentence. Id.
III. Petitioner's Opposition
In his opposition, petitioner argues that the 2012 Board of Parole Hearing's consideration of this 2011 RVR "is such that it must be presumed to have prolonged petitioner's sentence." ECF No. 13 at 14. Petitioner provides the 2012 parole hearing transcript in support of his argument that the RVR has affected the fact or duration of his confinement. Not only did the Board rely upon the 2011 RVR in its decision denying petitioner parole for a period of three years, but the Presiding Commissioner specifically stated that if petitioner "prevail[s] in your writ [of habeas corpus challenging this RVR] that could be a basis for you to request that your next hearing be conducted a date earlier than the denial period we issued today...." ECF No. 13 at 35, 37-39, 42-44.
IV. Respondent's Reply
Even with this evidence from the most recent parole board hearing, respondent still argues that "the Board did not deny petitioner parole based on the prison disciplinary alone; it based its decision on the severity of petitioner's commitment offense, his disciplinary history, and the findings in a psychological evaluation." ECF No. 14 at 2. Therefore, respondent maintains that "it is entirely speculative that expungement of the challenged prison disciplinary from Sarmiento's prison file would result in a future grant of parole...." Id . at 3.
V. Legal Standards
The establishment of jurisdiction is a necessary prerequisite to proceeding with this action. See Wilson v. Belleque , 554 F.3d 816, 821 (9th Cir. 2009). Petitioner does not challenge the validity of his convictions or sentences, the length of his confinement to date, or the denial of parole. Rather, ...