Nettles v. Grounds

          Argued and Submitted En Banc March 22, 2016 San Francisco, California

         Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, Senior District Judge, Presiding D.C. No. 1:11-cv-01201-AWI-JLT

          John P. Balazs (argued), Sacramento, California; Monica Knox, Assistant Federal Defender; Heather Williams, Federal Defender; Office of the Federal Defender, Sacramento, California; for Petitioner-Appellant.

          Phillip J. Lindsay (argued), Supervising Deputy Attorney General; Jennifer A. Neill, Senior Assistant Attorney General; Kamala D. Harris, Attorney General of California; Office of the Attorney General, Sacramento, California; for Respondent-Appellee.

          Before: Sidney R. Thomas, Chief Judge and William A. Fletcher, Marsha S. Berzon, Johnnie B. Rawlinson, Richard R. Clifton, Consuelo M. Callahan, Sandra S. Ikuta, N. Randy Smith, Mary H. Murguia, Jacqueline H. Nguyen and Andrew D. Hurwitz, Circuit Judges.

         SUMMARY ^[*]

         Habeas Corpus / Prisoner Civil Rights

         The en banc court vacated the district court's dismissal of a matter, brought as a habeas corpus petition by a California state prisoner serving a life sentence, challenging a disciplinary violation on constitutional grounds and claiming that the failure to expunge this violation from his record could affect his eligibility for parole.

         The en banc court held that a 42 U.S.C. § 1983 action is the exclusive vehicle for claims brought by state prisoners that are not within "the core of habeas corpus." Preiser v. Rodriguez, 411 U.S. 475, 487 (1973). In so holding, the en banc court overruled Docken v. Chase, 393 F.3d 1024 (9th Cir. 2004), and Bostic v. Carlson, 884 F.2d 1267 (9th Cir. 1989), to the extent they are inconsistent with this rule.

         The en banc court held that the prisoner's claim does not fall within "the core of habeas corpus" because success on the claim would not necessarily lead to immediate or speedier release since the expungement of the challenged disciplinary violation would not necessarily lead to a grant of parole.

         The en banc court joined sister circuits in holding that a district court may construe a petition for habeas corpus to plead a cause of action under § 1983 after notifying and obtaining informed consent from the prisoner.

         The panel remanded for further proceedings.

         Concurring in part, Judge Hurwitz joined Parts I, II(A), III, and IV of Judge Ikuta's opinion. He wrote that Skinner v. Switzer, 562 U.S. 521 (2011), is an unambiguous indication of the Supreme Court's view on the issue in this case, and that parsing the language or history of 28 U.S.C. § 2254 is unnecessary.

         Judge Berzon dissented. She wrote that the majority's response - that if the prisoner were successful on his claim, it "would not necessarily lead to his immediate or earlier release from confinement, " because the parole board could deny him parole even without considering the disciplinary proceeding at issue - flouts this court's normal approach to alleged violations of procedural rights and is inconsistent with the statutes and precedents governing petitions for habeas corpus.

          OPINION

          IKUTA, Circuit Judge:

         Damous Nettles, a prisoner serving a life sentence in California prison, appeals the district court's dismissal of his habeas petition for lack of jurisdiction. The petition challenged a disciplinary violation on constitutional grounds and claimed that the failure to expunge this violation from his record could affect his eligibility for parole. We conclude that because Nettles's claim does not fall within the "core of habeas corpus, " Preiser v. Rodriguez, 411 U.S. 475, 487 (1973), it must be brought, if at all, under 42 U.S.C. § 1983.

         I

         In 1990, Nettles was convicted in California of attempted first degree murder with the use of a firearm and other offenses. The victim was a woman who had filed a complaint against Nettles's brother. In order to prevent her from testifying, Nettles took the victim down an alley, ordered her onto her hands and knees, and told her "You're not going to testify against my brother. I'm going to kill you." Nettles then shot her twice in the left ear and left her in the alley. The victim did not die, but was seriously injured and disfigured.

         Nettles was convicted for attempted murder and dissuading and conspiring to dissuade a witness from attending or giving testimony at trial. He was sentenced to prison for a determinate term of twelve years and a life term with the possibility of parole.

         Under California law, prisoners with life terms like Nettles may not be released before their minimum eligible parole date (MEPD). Cal. Penal Code § 3041(a)(4). One year before a prisoner's MEPD, a panel of the Board of Parole Hearings will meet with the prisoner and determine if the prisoner is suitable for parole. Id. § 3041(a)(2). "[A] life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison." Cal. Code Regs. tit. 15, § 2281(a). In determining the prisoner's suitability for parole, the panel must consider "all relevant" information, id. § 2281(b), including disciplinary actions received during imprisonment. If the prisoner is suitable for parole and has reached the MEPD, the prisoner is entitled to release. Cal. Penal Code § 3041(a).^[1] If the panel determines that the prisoner is unsuitable for parole, the Board of Parole Hearings will schedule a future hearing that could take place from three to fifteen years after the previous hearing, as directed by statutory criteria. Id. § 3041.5(b)(3). Once every three years, an inmate may request the board to exercise its discretion to accelerate the next hearing. Id. § 3041.5(d).

         An initial parole consideration hearing for Nettles was held in 2004 after the presiding parole commissioner determined that Nettles' MEPD was October 19, 2005. Before that hearing, prison staff had issued some thirty-nine rules violations reports to Nettles. These reports are issued for misconduct that "is believed to be a violation of law or is not minor in nature." Cal. Code Regs. tit. 15, § 3312(a)(3). Nettles also received numerous citations for lesser types of misconduct. See id. § 3312(a)(2). At Nettles's initial parole hearing in 2004, the Board of Prison Terms (now the Board of Parole Hearings, or Board)^[2] deemed Nettles to be unsuitable for parole. It scheduled the next parole suitability hearing for 2006, but the date was postponed several times.

         After 2004, Nettles received seven additional rules violations reports. On February 26, 2008, staff issued Nettles a rules violation report for threatening to stab a corrections officer. After an investigation of the incident and a hearing, Nettles was found guilty and given a four-month term in the segregated housing unit. He also lost thirty days of post-conviction credit.

         On July 30, 2009, the Board convened a second parole suitability hearing for Nettles. At the hearing, the presiding commissioner first described the facts of Nettles's crime of conviction, characterizing it as "one of the most atrocious and cruel acts I've read" and stating that Nettles's motive was "ridiculously heinous." The commissioner then reviewed Nettles's prior criminal history. Nettles had a long string of convictions beginning at age seventeen and had been in and out of prison for offenses including possession of drugs, assault with a deadly weapon, battery on a peace officer, and robbery. Nettles was on parole for the robbery conviction when he committed the attempted murder for which he was sentenced to life imprisonment. The commissioner stated that Nettles's lengthy criminal history illustrated his inability to learn from prior incarcerations.

         The commissioner next explained the hearing panel's concerns about Nettles's mental state and attitude about the crime. In the hearing panel's view, Nettles's letter to the victim did not express true remorse. Further, Nettles had not taken responsibility for his conduct and lacked insight that would enable him to change his behavior. The commissioner discussed a May 2007 psychological report, which gave Nettles "a rating of overall moderate likelihood to become involved in a violent offense if released." Finally, the commissioner stated that Nettles was argumentative and stubborn, "challenge[d] authority at every given opportunity, " and refused to restrain himself, as evidenced by his numerous rules violations. The commissioner noted the forty-six rules violation reports that had been issued to Nettles while he was in prison. Nettles "continued to display negative behavior while incarcerated, " and as a result was placed in segregated housing. Moreover, Nettles had not taken any significant steps to gain skills to function outside of prison. Nevertheless, a deputy commissioner noted some positive steps Nettles had taken, including a slight reduction in the number of rules violations reports issued to Nettles in recent years.

         The panel of the Board of Parole Hearings concluded that Nettles was unsuitable for parole because he "still pose[d] an unreasonable risk of danger if released from prison." This finding was "based on weighing the considerations provided in the California Code of Regulations." As authorized by the regulations, the commissioner made recommendations regarding "what steps may be undertaken to enhance the possibility of a grant of parole at a future hearing, " Cal. Code Regs. tit. 15, § 2304, telling Nettles that "[f]or next time, you certainly need to become and remain disciplinary free."

         On January 23, 2009, Nettles filed a habeas petition in the state trial court claiming, in relevant part, that the 2008 rules violation report was illegal and that the disciplinary proceedings held in connection with the 2008 rules violation report violated his due process rights. The court denied the petition, concluding that Nettles failed to exhaust his administrative remedies concerning these claims.^[3] The California Court of Appeal and California Supreme Court then summarily denied the petition.

         On June 10, 2011, Nettles filed a habeas petition in federal court seeking expungement of the February 26, 2008 rules violation report and "restoration of good time, " presumably referring to the loss of thirty days of post-conviction credits as a result of the 2008 disciplinary decision. After being ordered to respond, the state moved to dismiss the petition, arguing that the court lacked jurisdiction to entertain the petition because the 2008 disciplinary decision did not impact the fact or duration of Nettles's confinement and so was not cognizable in habeas. Nettles opposed the motion, arguing that the disciplinary decision impacted the duration of his confinement because it delayed his parole hearing and constituted grounds for future denial of parole.

         The district court dismissed Nettles's petition, holding that he could not show that expungement of the 2008 rules violation report was likely to accelerate his eligibility for parole. Nettles timely appealed the district court's decision.

         We review de novo a district court's decision to deny a petition for habeas corpus. Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010). We also review de novo a district court's determination that it does not have jurisdiction over a habeas corpus petition. Id.

         II

         The Supreme Court has recognized that "[f]ederal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871 . . . 42 U.S.C. § 1983." Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam). "Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus; requests for relief turning on circumstances of confinement may be presented in a § 1983 action." Id. (internal citation omitted). The Court has long held that habeas is the exclusive vehicle for claims brought by state prisoners that fall within the core of habeas, and such claims may not be brought in a § 1983 action. See, e.g., Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (characterizing the Court's precedents as holding "that a state prisoner's § 1983 action is barred (absent prior invalidation)-no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)-if success in that action would necessarily demonstrate the invalidity of confinement or its duration"). Based on our review of the development of the Court's case law in this area, we now adopt the correlative rule that a § 1983 action is the exclusive vehicle for claims brought by state prisoners that are not within the core of habeas corpus.

         A

         The Supreme Court first addressed the scope of § 1983 vis-a-vis the scope of habeas in the leading case of Preiser v. Rodriguez, 411 U.S. 475 (1973). In Preiser, state prisoners who had lost good-time credits as a result of disciplinary proceedings brought an action under § 1983 for restoration of the credits on the ground that the proceedings violated their due process rights. Id. at 476-77. The prisoners would have been entitled to immediate release from prison if their good-time credits had been restored, and the Court therefore concluded that habeas was the exclusive remedy for these claims. Id. at 500. Although "the literal terms of § 1983 might seem to cover" claims that a prisoner's confinement violated the Constitution, id. at 489, the language of the habeas statute is more specific, and the writ's history makes clear that it traditionally "has been accepted as the specific instrument to obtain release from [unlawful] confinement, " id. at 486. Further, "habeas corpus actions require a petitioner fully to exhaust state remedies, which § 1983 does not." Wilkinson, 544 U.S. at 79 (citing Preiser, 411 U.S. at 490-91). Based on "[t]hese considerations of linguistic specificity, history, and comity, " the Court concluded that Congress intended to make "an implicit exception from § 1983's otherwise broad scope for actions that lie 'within the core of habeas corpus.'" Id. (quoting Preiser, 411 U.S. at 487). The claims at issue in Preiser, which would have resulted in immediate release if successful, fell within the core of habeas corpus and therefore had to be brought, if at all, in habeas. See id.

         In a series of cases after Preiser, the Supreme Court distinguished between different sorts of state prisoner claims, indicating which claims were in the "core of habeas corpus, " Preiser, 411 U.S. at 489, and thus could be brought only in a habeas petition, and which claims fell outside that core and could be brought in a § 1983 action. In Wolff v. McDonnell, the Court considered a § 1983 class action brought by state prisoners challenging prison rules, practices, and procedures and seeking restoration of good-time credits, injunctive relief, and damages. 418 U.S. 539, 542-44 (1974). The Court held that the plaintiffs' claims for restoration of good-time credits were in the core of habeas and therefore outside the scope of § 1983. Id. at 554. By contrast, claims challenging a prison's "procedures for depriving prisoners of good-time credits" and seeking damages or a prospective injunction-claims which would not necessarily lead to an earlier release-could be brought in a § 1983 action. Id. at 554 (emphasis added).

         In Heck v. Humphrey, a state prisoner brought a § 1983 action for compensatory and punitive money damages against state officials who had allegedly engaged in unconstitutional procedures in their investigation and handling of evidence. 512 U.S. 477, 478-79 (1994). Analogizing the prisoner's § 1983 action to the common-law cause of action for malicious prosecution, id. at 484, the Court held that a plaintiff could not bring a § 1983 action "that necessarily require[d] the plaintiff to prove the unlawfulness of his conviction or confinement, " id. at 486. To bring such an action, the plaintiff would first have to prove that the conviction or sentence was eliminated, including "by a federal court's issuance of a writ of habeas corpus." Id. at 486-87. By contrast, an action that, "even if successful, will not demonstrate the invalidity of any outstanding criminal judgment" falls within § 1983's scope. Id. at 487. This favorable termination rule polices "the intersection of the two most fertile sources of federal-court prisoner litigation- [§ 1983], and the federal habeas corpus statute, " id. at 480, by ensuring that a court cannot address a § 1983 claim if doing so would require it to first resolve a claim that falls within the core of habeas corpus.

         In Edwards v. Balisok, the Court held that a state prisoner's challenge under § 1983 that "would necessarily imply the invalidity of the disciplinary hearing and the resulting [deprivation of good-time credits]" fell within habeas's exclusive domain and was barred by the rule in Heck, while a claim seeking an injunction barring future unconstitutional procedures was within the scope of § 1983 action. 520 U.S. 641, 644, 648 (1997). The court later clarified, in Muhammad v. Close, that such challenges to disciplinary proceedings are barred by Heck only if the § 1983 action would be "seeking a judgment at odds with [the prisoner's] conviction or with the State's calculation of time to be served." 540 U.S. at 754-55. If the invalidity of the disciplinary proceedings, and therefore the restoration of good-time credits, would not necessarily affect the length of time to be served, then the claim falls outside the core of habeas and may be brought in § 1983. See id.^[4]

         In this series of cases, the Court made clear that habeas is the exclusive vehicle for claims brought by state prisoners that fall within the core of habeas and that such claims may not be brought under § 1983, but the Court did not have occasion to address the question whether § 1983 was the exclusive vehicle for claims outside the core of habeas. In subsequent cases, the Court began suggesting that § 1983 was the sole remedy for such claims. See, e.g., Muhammad, 540 U.S. at 754-55. In Muhammad, the Supreme Court limited the applicability of Heck by holding that a state prisoner was entitled to challenge administrative determinations that did not "raise any implication about the validity of the underlying conviction" or "necessarily" affect "the duration of time to be served" under § 1983 because such a challenge "raised no claim on which habeas relief could have been granted on any recognized theory." Id. In other words, Muhammad suggested, without holding, that the scope of habeas is limited to claims in the core of habeas and does not extend to a claim that does not necessarily challenge the validity or duration of the underlying conviction or sentence.

         This suggestion that § 1983 and habeas are mutually exclusive vehicles for prisoner claims appeared again in Wilkinson v. Dotson, 544 U.S. at 82. In Dotson, state prisoners brought a § 1983 action to challenge the state's practice of applying new parole procedures retroactively. Id. at 76-77. Like earlier cases that had distinguished between state prisoner claims that were in the "core of habeas, " and thus could be brought only in a habeas petition, and those which could be brought in a § 1983 action, Dotson concluded that habeas was the exclusive vehicle for state prisoner claims where "success in that action would necessarily demonstrate the invalidity of confinement or its duration." Id. at 82. But a § 1983 action would lie where success on a claim means only that a prisoner will be eligible for parole review, "which at most will speed consideration of a new parole application." Id. In rejecting the dissent's argument that habeas was available for challenges to parole procedures and therefore provided the exclusive vehicle for them, the Court suggested that habeas was available only for claims that seek "invalidation (in whole or in part) of the judgment authorizing the prisoner's confinement." Id. at 83. The concurring opinion in Dotson picked up this suggestion that habeas was available only for claims in the core of habeas, stating that it "would utterly sever the writ from its common-law roots" to hold that "the habeas statute authorizes federal courts to order relief that neither terminates custody, accelerates the future date of release from custody, nor reduces the level of custody." Id. at 86 (Scalia, J., concurring).

         Dotson's suggestion that a § 1983 action is the exclusive vehicle for state prisoner claims that are not within the core of habeas was echoed more strongly in the Supreme Court's most recent pronouncement on this issue, Skinner v. Switzer. 562 U.S. 521 (2011). There, a state prisoner moved in state court for DNA testing of certain crime scene evidence. Id. at 527-29. After the state court denied the motions, the prisoner brought a federal action for injunctive relief under § 1983, alleging a due process violation. Id. at 529. The district court dismissed the action on the ground that "postconviction requests for DNA evidence are cognizable only in habeas corpus, not under § 1983." Id. The Court disagreed and indicated that the correct analysis was the exact opposite: because an action for DNA testing was not within the core of habeas, it could be brought only in § 1983. Id. at 533-34, 535 n.13. In reaching this conclusion, the Court relied first on the Dotson concurrence and its indication that habeas was available only for claims in the core of habeas corpus. "It suffices to point out that [the state] has found no case, nor has the dissent, in which the Court has recognized habeas as the sole remedy, or even an available one, where the relief sought would 'neither terminat[e] custody, accelerat[e] the future date of release from custody, nor reduc[e] the level of custody.'" Id. at 534 (quoting Dotson, 544 U.S. at 86 (Scalia, J., concurring)). Second, rejecting the state's argument that a claim for DNA testing lay "at the core" of a criminal proceeding and had to be brought in habeas, the Court instead characterized its prior decision in Dotson as declaring "in no uncertain terms, that when a prisoner's claim would not necessarily spell speedier release, that claim does not lie at "the core of habeas corpus, " and may be brought, if at all, under § 1983." Id. at 535 n.13 (internal quotation marks omitted). Skinner also alluded to the existence of a firm line between habeas and § 1983, noting that the state's argument "cannot be reconciled with the line our precedent currently draws" between habeas and § 1983, and suggested that the core of habeas defines the contours of that line. See id.^[5]

         We read these statements as strongly suggesting that habeas is available only for state prisoner claims that lie at the core of habeas (and is the exclusive remedy for such claims), while § 1983 is the exclusive remedy for state prisoner claims that do not lie at the core of habeas. Although the Supreme Court has not provided an express ruling on the scope of habeas, "we afford 'considered dicta from the Supreme Court . . . a weight that is greater than ordinary judicial dicta as prophecy of what the court might hold.'" Managed Pharmacy Care v. Sebelius, 716 F.3d 1235, 1246 (9th Cir. 2013) (quoting United States v. Montero-Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (en banc)); see also United States v. Baird, 85 F.3d 450, 453 (9th Cir. 1996) ("Although the Daniel construction . . . may be dictum, we treat Supreme Court dicta with due deference, and see no reason not to apply the Court's construction in the case at bar.").

         The dissent heavily relies on cases where prisoners in federal custody brought habeas petitions under 28 U.S.C. § 2241 claiming that the Bureau of Prisons acted contrary to a federal statute that authorized it to shorten the sentence of a federal prisoner under certain circumstances. Dissent at 33-34, 45-47. See, e.g., Rodriguez v. Copenhaver, - F.3d -, No. 14-16399, 2016 WL 3003423, at *4 (9th Cir. May 25, 2016); Close v. Thomas, 653 F.3d 970, 973-74 (9th Cir. 2011); Crickon v. Thomas, 579 F.3d 978, 982 (9th Cir. 2009). None of these cases addressed the scope of habeas relief available to federal prisoners under § 2241, and therefore they shed no light on the issue before us. Nor do the Supreme Court's recent cases addressing the scope of habeas petitions vis-à-vis § 1983 involve the rights of federal prisoners. See, e.g., Skinner, 562 U.S. at 527; Dotson, 544 U.S. at 82. Because the case before us involves a state prisoner's action under 28 U.S.C. § 2254, we need not address how the standard suggested in Skinner and adopted here applies to relief sought by prisoners in federal custody.^[6]

         B

         Other factors support our adoption of the Supreme Court's strong suggestion that a § 1983 action is the exclusive vehicle ...