Damous D. Nettles, Petitioner-Appellant,
Randy Grounds, Warden, Respondent-Appellee.
and Submitted En Banc March 22, 2016 San Francisco,
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
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
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.
Corpus / Prisoner Civil Rights
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.
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.
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
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.
panel remanded for further proceedings.
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.
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.
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.
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.
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.
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). 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).
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) deemed Nettles to be unsuitable for
parole. It scheduled the next parole suitability hearing for
2006, but the date was postponed several times.
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
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.
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
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."
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. The California Court of Appeal and
California Supreme Court then summarily denied the petition.
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
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
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.
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.
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.
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).
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.
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.
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.
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).
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
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
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.
factors support our adoption of the Supreme Court's
strong suggestion that a § 1983 action is the exclusive