United States District Court, N.D. California
TOORAJ A. NAKHEI, Petitioner,
T. FOSS, Respondent.
ORDER TO SHOW CAUSE
RICHARD SEEBORG, UNITED STATES DISTRICT JUDGE
seeks federal habeas relief under 28 U.S.C. § 2254 from
a prison disciplinary decision. The petition for such relief
is now before the Court for review pursuant to 28 U.S.C.
§ 2243 and Rule 4 of the Rules Governing Section 2254
petition states cognizable claims. Respondent shall file a
response to the petition on or before February 24,
2020, unless an extension is granted.
Court may lack jurisdiction over the petition.
appears the disciplinary decision was voided. If this means
the lost time credits were restored, petitioner's
sentence is unaffected and therefore no habeas action will
lie. Furthermore, the voiding of the disciplinary decision
may have cured any due process violation. If respondent
concludes the Court lacks jurisdiction, he may file a motion
to dismiss on such grounds.
to the petition, in 2016 petitioner's jailors at Pleasant
Valley State Prison found him guilty of possessing a
dangerous weapon. (Pet., Dkt. No. 1 at 38.) As punishment,
petitioner lost time credits, but it is not clear how many.
The initial disciplinary decision states 360 days, which
appears to have been reduced later to 181. (Id. at
38 and 59.) Petitioner says it was two years. (Id.
Court may lack jurisdiction because it appears that in 2019,
the rules violation report was “voided in the interest
of justice.” (Id. at 71.) It is not clear
whether the lost credits were restored.
Court may entertain a petition for writ of habeas corpus
“in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a). A
district court considering an application for a writ of
habeas corpus shall “award the writ or issue an order
directing the respondent to show cause why the writ should
not be granted, unless it appears from the application that
the applicant or person detained is not entitled
thereto.” 28 U.S.C. § 2243. Summary dismissal is
appropriate only where the allegations in the petition are
vague or conclusory, palpably incredible, or patently
frivolous or false. See Hendricks v. Vasquez, 908
F.2d 490, 491 (9th Cir. 1990).
grounds for federal habeas relief, petitioner claims his due
process and equal protection rights were violated. When
liberally construed, these allegations state claims for
relief. His claim that the “constructive
possession” theory of liability is unconstitutional is
DISMISSED. There is no federal law or constitutional right to
be free from the use of this theory of liability. While not a
separate claim, his contention that constructive possession
is insufficient evidence of possession can be considered part
of his due process claim.
Court may lack jurisdiction over this case for two reasons.
First, if the credits were restored (and therefore the length
of petitioner's sentence is unaffected), there is no
viable habeas suit here. If habeas relief will not
“necessarily lead to immediate or speedier release,
” no federal habeas claim lies. Nettles v.
Grounds, 830 F.3d 922, 935 (9th Cir. 2016). There would
be no case or controversy within the meaning of Article III
of the Constitution. Furthermore, no claim will lie on the
premise that an expunged disciplinary decision might affect
the voiding of the decision may have cured any due process
violation. See Wycoff v. Nichols, 94 F.3d 1187, 1189
(8th Cir. 1996) (“[T]he [administrative] reversal of
the case against Wycoff constituted part of the due process
Wycoff received, and it cured the alleged due process