United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
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.
Order to Show Cause
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
Legal Standard for Habeas Jurisdiction
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.
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).
Petitioner's Response Does Not Establish Habeas
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 ...