United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is a state prisoner without counsel seeking a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Now pending before
the court is respondent's motion to dismiss (ECF No. 8)
which argues that the petition fails to state a cognizable
federal habeas claim. Petitioner has responded to the motion
(ECF No. 9) and respondent has filed a reply (ECF No. 10).
After review of the pleadings, the court recommends that
respondent's motion be granted.
was assessed a thirty day loss of credit on June 13, 2015 for
disrespecting prison staff. ECF No. 1 at 1. He filed a
petition for writ of habeas corpus in the Sacramento County
Superior Court in which he argued that staff should have
given him a verbal warning in lieu of a loss of credit.
Id. at 28. The superior court rejected
petitioner's claims in a reasoned decision. Id.
at 28-31. Petitioner then raised this claim in the state
court of appeal and the California Supreme Court, both of
which summarily denied his petition. Id. at 33, 36.
federal petition raises two claims. First, petitioner argues
that the prison hearing officer erroneously assessed a loss
of credit penalty for a “lesser included offense”
after finding him innocent of threatening a peace officer.
Id. at 4. He claims that the appropriate penalty for
the offense of which he was found guilty - disrespecting
staff - was a verbal warning. Id. Second, petitioner
argues that his disciplinary finding for disrespecting staff
was not supported by sufficient evidence. Id. at 6.
Applicable Legal Standards
context of federal habeas claims, a motion to dismiss is
construed as arising under rule 4 of the Rules Governing
Section 2254 in the United States District Courts which
“explicitly allows a district court to dismiss
summarily the petition on the merits when no claim for relief
is stated.” O'Bremski v. Maass, 915 F.2d
418, 420 (9th Cir. 1990) (quoting Gutierrez v.
Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983)).
Accordingly, a respondent is permitted to file a motion to
dismiss after the court orders a response, and the court
should use Rule 4 standards in reviewing the motion. See
Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n. 12
(E.D. Cal. 1982). Rule 4 specifically provides that a
district court may dismiss a petition if it “plainly
appears from the face of the petition and any exhibits
annexed to it that petitioner is not entitled to relief in
the district court . . . .” Rule 4 of the Rules
Governing Section 2254 Cases. The court may, however, take
judicial notice of court records and does so here. See
Porter v. Ollison, 620 F.3d 952, 954-55 (9th Cir. 2010).
Nettles v. Grounds, the Ninth Circuit held that
federal habeas relief is only available to a prisoner if his
claim lies at the core of habeas corpus - that is, if success
on his claim would “necessarily lead to . . . immediate
or earlier release from confinement.” 830 F.3d 922,
930-31, 935 (9th Cir. 2016). In Nettles, the
appellate court concluded that the petitioner, who was an
inmate serving a determinate term of twelve years and a life
term with the possibility of parole, would not necessarily be
entitled to a speedier release if his challenged disciplinary
violation were expunged. Id. at 925, 934-35. This
was because the disciplinary violation was merely one factor
which the parole board could consider in deciding whether to
grant parole. Id. at 935.
present petition is foreclosed by Nettles.
Petitioner is serving an indeterminate sentence of
twenty-five years to life. ECF No. 8 at 6. Thus, like the
petitioner in Nettles, he does not have a fixed
release date and will be released only if and when the parole
board determines he is suitable for parole. Cal. Penal Code
§ 3041; Cal. Code Regs. Tit. 15, § 2402.
Expungement of his disciplinary violation would not
necessarily lead to his speedier or immediate release. In his
response, petitioner argues that “[o]ne of the main
factors” by which parole suitability is determined is
an inmate's disciplinary record. ECF No. 9 at 2. This is
undoubtedly true, but it cannot be said that he would
necessarily be paroled (or necessarily be granted
quicker parole) if his conviction were expunged. Success in
this petition would merely increase petitioner's chances
of parole. Nettles explicitly noted that its
adoption of the “core of habeas” standard was
partially motivated by a desire to sidestep the sort of
probability analysis which previously required courts to
“guess at the discretionary decisions of state
officials in order to determine whether an action sounds in
habeas . . . .” 830 F.3d at 934.
it is RECOMMENDED that respondent's motion to dismiss
(ECF No. 8) be granted.
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within twenty one
days after being served with these findings and
recommendations, any party may file written objections with
the court and serve a copy on all parties. Such a document
should be captioned “Objections to Magistrate
Judge's Findings and Recommendations.” Failure to
file objections within the specified time may waive the right
to appeal the District Court's order. Turner v.
Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez
v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his
objections petitioner may address whether a certificate of
appealability should issue in the event he files an appeal of