McDaniel v. Clay
Filing
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FINDINGS and RECOMMENDATION Regarding Respondent's 28 Motion to Dismiss, signed by Magistrate Judge Michael J. Seng on 6/24/11. Objections Due Within Thirty Days. Referred to Judge Ishii. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ROBERT McDANIEL,
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Petitioner,
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v.
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I.D. CLAY, Warden,
Respondent.
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1:09-cv-01809 AWI MJS HC
FINDINGS AND RECOMMENDATION
REGARDING RESPONDENT’S MOTION
TO DISMISS
(Doc. 28)
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Petitioner is a state prisoner proceeding pro se with a Petition for Writ of Habeas
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Corpus pursuant to 28 U.S.C. § 2254. Respondent is represented in this action by Christopher
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J. Rench, Esq., of the Office of the Attorney General for the State of California.
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I.
INTRODUCTION
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Petitioner is a former state prisoner, presently on parole, proceeding without counsel
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and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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Petitioner challenges a prison disciplinary decision and claims violations of his Constitutional
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and due process rights. (Pet., ECF No. 1.)
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On June 19, 2008, Petitioner was issued a rules violation report for battery on a peace
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officer. (Pet. at 38.) On November 21, 2008, a prison disciplinary hearing was conducted and
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Petitioner was found guilty of the rules violation and assessed a loss of 150 days of good-time
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credits. (Pet. at 1.)
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Petitioner presents three grounds for the granting of habeas relief: (1) the sentence
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imposed was greater than permitted by California Law and thereby violated Petitioner’s federal
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rights under the First, Sixth, Eighth, and Fourteenth amendments; (2) he was denied a state
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created liberty interest in a disciplinary hearing; and (3) he was denied access to all defense
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witnesses and evidence. Petitioner seeks dismissal and expungement of his prison disciplinary
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conviction and restoration of the 150 days loss of good-time credits. (Pet.)
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On December 2, 2010, Respondent filed a Motion to Dismiss the federal petition. (Mot.
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to Dismiss, ECF No. 28.) Respondent asserts that Petitioner’s release rendered his claims
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moot. Petitioner filed an Opposition to the motion on January 13, 2011. (Opp'n, ECF No. 33.)
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Respondent filed a Reply to the Opposition on January 19, 2011. (Reply, ECF No. 34.)
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II.
ANALYSIS
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As indicated above, Petitioner filed his Petition for a Writ of Habeas Corpus after he
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was released on parole. Accordingly, the Court must determine whether this action is moot.
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"A case becomes moot when 'it no longer present[s] a case or controversy under Article
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III, § 2, of the Constitution.'" Wilson v. Terhune, 319 F.3d 477, 479 (9th Cir. 2003) (quoting
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Spencer v. Kemna, 523 U.S. 1, 7, 118 S. Ct. 978, 140 L. Ed. 2d 43 (1998)). A federal habeas
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petition challenging an underlying criminal conviction is never rendered moot by the petitioner's
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release from custody so long as there are collateral consequences that flow from the criminal
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conviction. Wilson, 319 F.3d at 479 (citation omitted). However, "the presumption of collateral
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consequences does not apply to prison disciplinary proceedings." Wilson, 319 F.3d at 480.
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In Wilson, the federal habeas petition was filed after the disciplinary action had been either
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withdrawn or completed. Id., 319 F.3d at 479. The Ninth Circuit concluded that the petitioner
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had failed to allege any collateral consequences stemming from his prison disciplinary
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conviction sufficient to meet the case-or-controversy requirement. Id., 319 F.3d at 481-82.
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Similarly, here, Petitioner filed his federal habeas petition after his release from custody.
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See also Nonnette v. Small, 316 F.3d 872, 875-76 (9th Cir. 2002) (holding that a habeas
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challenge to a loss of good time credits is rendered moot by one's release from custody where
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the discipline had no collateral consequences that followed release); Garrett v. Marshall, 2009
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U.S. Dist. LEXIS 97823, 2009 WL 3417786, *2 (C.D. Cal. Oct. 20, 2009) (habeas application
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challenging prison disciplinary conviction and loss of good time rendered moot by petitioner's
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release on parole); Tsehai v. Schwartz, 2007 U.S. Dist. LEXIS 26511, 2007 WL 1087058, at
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*1 (E.D. Cal. Apr. 10, 2007) (federal habeas petition challenging a prison disciplinary
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conviction and forfeiture of time credits rendered moot by petitioner's release on parole).
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It is speculative to assume that Petitioner would have been released from prison earlier
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on parole had it not been for the challenged prison disciplinary conviction. As the Ninth Circuit
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reasoned in Wilson, "the decision to grant parole is discretionary" and "'the importance
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attached to any circumstance . . . is left to the judgment of the [parole] panel.'" Wilson, 319
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F.3d at 482 (citing Cal. Code of Regs. tit. 15, § 2402(c)). Therefore, "the likelihood of delayed
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or denied parole is a type of nonstatutory consequence dependent on discretionary decisions
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that is insufficient to apply the presumption of collateral consequences." Id. at 481; Norman
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v. Salazar, 2010 U.S. Dist. LEXIS 52280, 2010 WL 2197541, at *2 (C.D. Cal. Jan. 26, 2010)
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("Although a disciplinary conviction may not help an inmate who is seeking release on parole,
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it is only one of a 'myriad of considerations' relevant to a parole decision and does not
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inevitably affect the length of the prisoner's sentence); Gayles v. Sisto, 2010 U.S. Dist. LEXIS
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2748, 2010 WL 231382, at *2 (E.D. Cal. Jan. 13, 2010) ("[T]he potential use of the 115 in
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future parole proceedings is too speculative to be considered a collateral consequence . . . .");
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James v. Castellaws, 2008 U.S. Dist. LEXIS 66306, 2008 WL 4058477, at *1 (N.D. Cal. Aug.
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28, 2008) (habeas action challenging disciplinary action and loss of good time credit was moot
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because the punishment imposed had expired and allegations that the rules violation finding
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may result in a delay or denial of parole were too speculative to constitute sufficient proof of
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collateral consequences).
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In his opposition, Petitioner argues that the present action is not moot and that collateral
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consequences remain as he must obtain a favorable determination in this matter so that his
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civil rights actions based on this incident will not be barred by Heck v. Humphrey, 512 U.S. 477
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(1994). Under Heck, a claim that "necessarily implie[s] the invalidity of [a] conviction or
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sentence [may] not be maintained under § 1983 unless the prisoner proved 'that the conviction
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or sentence has been reversed on direct appeal, expunged by executive order, declared
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invalid by a state tribunal authorized to make such determination[s], or called into question by
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a federal court's issuance of a writ of habeas corpus.'" Nonnette, 316 F.3d at 875 (quoting
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Heck, 512 U.S. at 486-87). In Spencer v. Kemna, five members of the Supreme Court
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reasoned that "a former prisoner, no longer 'in custody,' may bring a § 1983 action establishing
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the unconstitutionality of a conviction or confinement without being bound to satisfy a
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favorable-termination requirement that it would be impossible as a matter of law for him to
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satisfy." 523 U.S. 1, 21, 118 S. Ct. 978, 140 L. Ed. 2d 43 (1998) (Souter, J., concurring); id.
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at 25 n.8 (Stevens, J., dissenting) ("Given the Court's holding that petitioner does not have a
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remedy under the habeas statute, it is perfectly clear . . . that he may bring an action under
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42 U.S.C. § 1983."). While the courts of appeal are split as to the significance of this reasoning
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in Spencer, see Wilson v. Johnson, 535 F.3d 262, 267 & nn. 6, 7 (4th Cir. 2008), the rule in
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the Ninth Circuit is clear. See Nonnette, 316 F.3d at 877. Specifically, a plaintiff challenging
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the validity of a conviction or sentence may bring a § 1983 claim despite the Heck bar so long
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as (1) habeas relief is unavailable and (2) plaintiff timely pursued appropriate relief. Id. at 877
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& n.6; see also Guerrero v. Gates, 442 F.3d 697, 705 (9th Cir. 2006); Greene v. Bd. of Prison
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Terms, 2011 U.S. Dist. LEXIS 41775, *2-4 (E.D. Cal. Apr. 18, 2011).
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Here, according to his complaint, Petitioner is no longer in custody for this violation.
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Further, as Petitioner brought the present action to challenge the violation and relief is now
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unavailable as the claim is moot, under Nonnette, he may continue to bring a § 1983 claim
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challenging the parole revocation decision. His claim does not fall within the Heck bar.
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Petitioner has not shown that collateral consequences result from the disciplinary proceeding.
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As such, Petitioner’s claim is moot and the Court recommends the petition be dismissed.
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III.
CONCLUSION
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Because Petitioner has been released on parole, this Court cannot grant any
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meaningful relief to Petitioner. Therefore, this Court recommends the action be dismissed as
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moot.
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IV.
Accordingly, the Court HEREBY RECOMMENDS that the motion to dismiss be
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RECOMMENDATION
GRANTED and the habeas corpus petition be DISMISSED as moot.
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This Findings and Recommendation is submitted to the assigned United States District
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Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the
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Local Rules of Practice for the United States District Court, Eastern District of California.
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Within thirty (30) days after the date of service of this Findings and Recommendation, any
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party may file written objections with the Court and serve a copy on all parties. Such a
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document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendation.” Replies to the Objections shall be served and filed within fourteen (14)
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days after service of the Objections. The Finding and Recommendation will then be submitted
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to the District Court for review of the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636
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(b)(1)(c). The parties are advised that failure to file objections within the specified time may
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waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th
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Cir. 1991).
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IT IS SO ORDERED.
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Dated:
92b0h
June 24, 2011
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
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