United States District Court, S.D. California
ORDER ADOPTING REPORT AND RECOMMENDATION [Doc. No.
12] AND GRANTING RESPONDENT'S MOTION TO DISMISS PETITION
FOR WRIT OF HABEAS CORPUS [Doc. No. 8]
Gonzalo P. Curiel United States District Judge
Del Rio, a state prisoner proceeding pro se, filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 on March 24, 2017. Doc. No. 1. Del Rio alleges
that prison officials denied him due process by issuing him a
Rules Violation Report (“RVR”) for not providing
a urine sample for drug testing. Id. at 12. Del Rio
asserts that the officers' actions violated prison rules,
and relatedly, his right to due process. Id. He
explains that he could not provide a urine sample due to a
medical condition. Id. As a remedy, Del Rio asks for
expungement of the RVR and restoration of credits he lost as
a result of the infraction. Id.
13, 2017, Respondent filed a motion to dismiss the petition.
Doc. No. 8. Respondent argues that (1) Del Rio's petition
does not invoke federal habeas corpus jurisdiction, and (2)
even if the Court were to construe the petition as a claim
under 42 U.S.C. § 1983, Del Rio fails to raise a
substantial federal question. Id. at 2-8. With
respect to the first ground, Respondent explains that Del
Rio's petition does not invoke federal habeas
jurisdiction because the relief sought will not necessarily
affect the duration of his confinement. Id. at 3-4.
Del Rio filed a response in opposition to motion to dismiss
on August 16, 2017. Doc. No. 11.
January 8, 2018, United States Magistrate Judge Bernard G.
Skomal issued a report and recommendation (the
“Report”) recommending this Court grant
Respondent's motion to dismiss. Doc. No. 12. Judge
Skomal's order instructed that objections to the Report
must be filed by January 26, 2018. Id. at 9. Del Rio
did not file any objections.
careful consideration of the pleadings and relevant exhibits
submitted and for the reasons set forth below, this Court
ADOPTS the Report and
GRANTS Respondent's motion to dismiss.
Rules of Civil Procedure 72(b) and 28 U.S.C. § 636(b)
set forth this Court's duties in connection with a report
from a Magistrate Judge. The Court “may accept, reject
or modify, in whole or in part, the findings and
recommendations made by the magistrate judge.” 28
U.S.C. § 636(b). This Court need not review de
novo portions of the Report to which neither party
objects. See Wang v. Masaitis, 416 F.3d 992, 1000
n.13 (9th Cir. 2005). Because Del Rio filed no objections to
the Report, this Court may assume the correctness of Judge
Skomal's findings of fact and decide the motion on the
applicable law. Campbell v. U.S. Dist. Ct. for the N.
Dist. Of Cal., 501 F.2d 196, 206 (9th Cir. 1974);
Johnson v. Nelson, 142 F.Supp.2d 1215, 1217 (S.D.
Skomal concluded that Del Rio cannot pursue his claims in a
petition for a writ of habeas corpus. Doc. No. 12 at 6. A
state prisoner cannot bring a habeas corpus action if his
claim is not at “the core of habeas corpus.”
Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir.
2016) (en banc) (quoting Preiser v. Rodriguez, 411
U.S. 475, 487 (1973)). A claim is at the core of habeas
corpus if it “challenges the fact or duration of the
conviction or sentence” and “necessarily
lead[s] to immediate or earlier release for
confinement.” Id. at 934-35 (emphasis added).
is confined as a result of a California criminal judgment.
Doc. No. 1. Since Del Rio brought the instant action under a
habeas corpus claim, his claim must be at “the core of
habeas corpus.” Doc. No. 1; Nettles, 830 F.3d
at 934. In California, a prisoner is eligible for release if
he is found suitable for parole and he has reached the
minimum eligible parole date (MEPD). Nettles, 830
F.3d at 925. Del Rio reached his MEPD in 1984. Prior to
receiving his RVR, Del Rio was denied parole. In reaching
that decision, the parole board explained, inter
alia, that Del Rio had not assumed full responsibility
for his criminal conduct and that he had a
“statistically high risk to reoffend in the free
community.” Lodg. 9:3. These considerations demonstrate
that expungement of Del Rio's RVR will not
“necessarily” result in his earlier release of
confinement because a prison rule violation is only one of
many factors the parole board must consider in making its
determination. Nettles, 830 F.3d at 934-35
(“Because the parole board has the authority to deny
parole on the basis of any of the grounds presently available
to it, 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.” (internal
quotation marks and citation omitted)). Indeed, “the
panel could deny parole to [Del Rio] even if he succeeded in
expunging [his] violation report.” Id. at 935.
as Judge Skomal noted in the Report, because Del Rio's
MEPD has passed, a loss of credits due to the RVR will not
lengthen his sentence. “These credits will not get [Del
Rio] to his MEPD any faster because he reached it decades
ago, and even if their restoration would have any impact on
the outcome of his next parole hearing, it would be one among
the many ...