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Sarmiento v. Hill

United States District Court, E.D. California

May 5, 2017

SAMUEL SARMIENTO Petitioner,
v.
RICK HILL, Respondent.

          ORDER

          ALLISON CLAIRE UNITED STATES 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.

         I. Procedural History

         Petitioner filed the instant habeas action challenging a 2011 prison disciplinary conviction for which he was assessed thirty days loss of credit. ECF No. 1. By way of relief, petitioner seeks reversal of the guilty finding, expungement of all references to the 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.” Id. at 4.

         In response to the petition, respondent filed a motion to dismiss arguing the court lacked habeas jurisdiction because success on the merits would not necessarily affect the fact or duration of petitioner's confinement. ECF No. 10. Relying on Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989), the court denied the motion and ordered respondent to answer the petition. ECF Nos. 16, 18. The Ninth Circuit subsequently issued an opinion in Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016) (en banc), which overruled Bostic in relevant part.

         In reviewing the briefing on the petition, the court determined that petitioner, like Nettles, is indeterminately sentenced and has yet to be found suitable for parole. While the Parole Board may be more likely to find petitioner suitable for parole without the 2011 RVR on his record, the board could still deny parole on other grounds, therefore success on the merits will not necessarily impact the length of petitioner's sentence. Thus, petitioner's claim may only be brought in habeas if expungement of his 2011 disciplinary conviction will necessarily result in a speedier or immediate release. Based on the foregoing, petitioner was given the option to (1) show cause explaining why the court has jurisdiction over this habeas action in light of the decision in Nettles, (2) convert his petition to a complaint under 42 U.S.C. § 1983, or (3) voluntarily dismiss the petition. ECF No. 22. He opted to show cause why his petition should not be dismissed. ECF No. 23.

         Petitioner has now submitted a response to the court's order to show cause why Nettles does not bar this court from exercising jurisdiction over his habeas corpus petition. ECF No. 27. For the following reasons, the court finds that petitioner has failed to show cause and will provide him a final opportunity to convert his petition into a civil rights action under 42 U.S.C. § 1983 before recommending dismissal of the petition.

         II. Order to Show Cause

         In the order to show cause, this court directed petitioner to explain how expungement of the challenged disciplinary conviction will result in his immediate or speedier release. ECF No. 24 at 2. Petitioner was informed that restoration of the thirty days credit could be found to result in immediate or speedier release if petitioner has a set parole date or a determinate sentence. Id. He was also told that expungement of the disciplinary conviction could not be found to lead to speedier release if there is only a possibility that success on the merits could impact the length of his sentence. Id. For a claim to lie at the core of habeas, there must be an actual change in the length of petitioner's sentence.

         III. Legal Standard for Habeas Jurisdiction

         “[W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). In Nettles, the Ninth Circuit recently addressed the issue of whether a habeas corpus action is the appropriate vehicle to challenge a disciplinary conviction when it will not necessarily impact the fact or duration of an inmate's confinement. The Ninth Circuit held that if success on the merits of a petitioner's challenged disciplinary proceeding would not necessarily impact the fact or duration of his confinement, his claim would not fall within “the core of habeas corpus, ” and that, unless a state prisoner's claim lies at the core of habeas corpus, it may not be brought in habeas corpus. Nettles, 830 F.3d at 934-35.

         The court in Nettles reasoned that “[s]uccess on the merits of Nettles's claim would not necessarily lead to immediate or speedier release because the expungement of the challenged disciplinary violation would not necessarily lead to a grant of parole.” Id. This is “[b]ecause the parole board has the authority to deny parole on the basis of any grounds presently available to it, [so] the presence of a disciplinary infraction does not compel the denial of parole, nor does an absence of an infraction compel the grant of parole.” Id. at 935 (internal quotation marks and citation omitted).

         IV. Petitioner's Response Does Not Establish Habeas Jurisdiction

         The undersigned concludes that petitioner's response has not shown that this court has jurisdiction over his habeas corpus petition. Rather than addressing the specifics of his case and whether reversal of the disciplinary will speed his release, petitioner instead recites various legal standards governing habeas. He concludes by arguing that this court has jurisdiction over the instant petition because this court determined it had jurisdiction when it denied respondent's motion to dismiss and he should therefore be allowed to proceed on the merits of his claim. ECF No. 27 at 6. As the court previously explained, “[i]n denying the motion to dismiss, the court relied on Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989), the controlling law at the time, [to find that it had jurisdiction over his petition] because expungement of petitioner's 2011 RVR was ‘likely to accelerate the prisoner's eligibility for parole and therefore could affect the duration of his confinement.'” ECF No. 22 at 2 (citation and some internal quotation marks omitted). However, Bostic has been ...


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