Saif'ullah v. Haviland
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Timothy J. Bommer on 10/31/2011. Petitioner's Request for Order to Show Cause is DENIED as MOOT. His Requests for Appointment of Counsel and Evidentiary Hearing are both DENIED. P etitioner's 21 22 Requests for Judicial Notice are GRANTED; and Court RECOMMENDS that 1 Petition for Writ of Habeas Corpus be denied. These F/Rs are referred to Judge Morrison C. England, Jr.. Within 21 days after being served with F/Rs, any party may file written Objections with Court and serve a copy on all parties. (Attachments: # 1 Judge England's 9/30/2011 Order) (Marciel, M)
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Case 2:10-cv-00642-MCE -EFB Document 23
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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THEODORE WILLIS,
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No. 2:10-cv-00642-MCE-EFB P
Petitioner,
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v.
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R. GROUNDS,
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Respondent.
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----oo0oo----
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Petitioner, a state prisoner proceeding pro se, has filed
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this Application for a Writ of Habeas Corpus pursuant to
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28 U.S.C. § 2254.
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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local
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Rule 302.
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The matter was referred to a United States
Petitioner, who is serving an indeterminate life sentence
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for murder, seeks habeas relief from a prison disciplinary
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hearing in which he was found guilty of possessing a weapon and a
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cell phone.
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fears this conviction will hinder his eligibility for parole.
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///
Petitioner lost 360 days of good-time credits, and
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Case 2:10-cv-00642-MCE -EFB Document 23
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Petitioner maintains his innocence, that the contraband belonged
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to his cellmate, and argues that because procedures used at his
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disciplinary hearing violated his due process rights, the
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conviction should be expunged and his good-time credits should be
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restored.
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to Dismiss for failure to state a cognizable claim.
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Presently before the Court is the Respondent’s Motion
On August 31, 2011, the magistrate judge made findings
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recommending that Respondent’s Motion be denied.
Those Findings
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and Recommendations were served on all parties and contained
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notice that any Objections to the Findings and Recommendations
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were to be filed within fourteen (14) days.
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Objections to the Findings and Recommendations.
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Respondent has filed
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C)
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and Local Rule 304, this Court has conducted a de novo review of
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this case.
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rejects the magistrate judge’s findings and recommendations that
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Respondent’s Motion to Dismiss should be denied.
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standards set forth in Bostic and Ramirez, discussed herein,
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Petitioner has failed to state a cognizable claim for federal
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habeas relief because he has not demonstrated that success on his
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claim is likely to accelerate his eligibility for parole, or will
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necessarily shorten his sentence.
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1267 (9th Cir. 1989); Ramirez v. Galaza, 334 F.3d 850 (9th Cir.
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2003).
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granted.
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///
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///
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///
Having carefully reviewed the entire file, the Court
Under the
Bostic v. Carlson, 884 F.2d
Therefore, Respondent’s Motion to Dismiss should be
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Case 2:10-cv-00642-MCE -EFB Document 23
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I.
Filed 09/30/11 Page 3 of 14
LEGAL STANDARD
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This Court has jurisdiction to consider habeas petitions
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where the petitioner is “in custody pursuant to the judgment of a
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State court” and alleges that “he is in custody in violation of
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the Constitution or laws or treaties of the United States.”
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28 U.S.C. § 2254(a).
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claims seeking immediate release from unlawful confinement, but
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rather is also available to attack future confinement and obtain
A writ of habeas corpus is not limited to
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future releases.
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S. Ct. 1827, 1835 (1973).
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See Preiser v. Rodriguez, 411 U.S. 475, 487, 93
In Preiser, a prisoner sought restoration of so-called
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“good-time credits.”
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for good behavior, and potentially have the effect of shortening
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a prisoner’s duration of confinement.
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petitioner’s habeas claims seeking restoration of good-time
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credits were proper even though restoration of those credits
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would merely shorten the length of confinement.
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Court reasoned that such claims were still “within the core of
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habeas corpus in attacking the very duration of their physical
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confinement.”
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Id.
Such credits are earned by prisoners
Preiser held that the
The Supreme
Preiser, 411 U.S. at 487-88.
Citing Preiser, the Ninth Circuit, in Bostic, Ramirez, and
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Docken, addressed the boundaries of habeas jurisdiction where
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prisoners allege violations that potentially impact the duration
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of their confinement.
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1989); Ramirez v. Galaza, 334 F.3d 850 (9th Cir. 2003);
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Docken v. Chase, 393 F.3d 1024 (9th Cir. 2004).
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///
Bostic v. Carlson, 884 F.2d 1267 (9th Cir.
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Case 2:10-cv-00642-MCE -EFB Document 23
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Filed 09/30/11 Page 4 of 14
In Bostic, the court reviewed a prisoner’s claim seeking
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restoration of good-time credits and expungement of his
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disciplinary conviction.
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jurisdiction exists when a petitioner seeks expungement of a
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disciplinary finding from his record if expungement is likely to
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accelerate the prisoner’s eligibility for parole.
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884 F.2d 1267 at 1269 (emphasis added).
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summarily affirmed the district court’s grant of dismissal for
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failing to state a claim without addressing whether the
The court held that habeas corpus
Bostic,
The court, however,
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expungement of petitioner’s disciplinary convictions would likely
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accelerate his particular eligibility for parole.
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In Ramirez, a prisoner filed a 42 U.S.C. § 1983 suit
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alleging due process violations regarding his prison disciplinary
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hearing and subsequent conviction.
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Among other claims, Petitioner sought expungement of his
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disciplinary record.
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habeas petition was the proper course of action for a prisoner
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making such a challenge.
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two remedial avenues, stating that “[s]uits challenging the
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validity of the prisoner’s continued incarceration lie within
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‘the heart of habeas corpus,’ whereas ‘a § 1983 action is a
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proper remedy for a state prisoner who is making a constitutional
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challenge to the conditions of his prison life, but not to the
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fact or length of his custody.’”
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411 U.S. at 498-99).
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is absent, and a § 1983 action proper, where a successful
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challenge to a prison condition will not necessarily shorten the
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prisoner’s sentence.” Ramirez, 334 F.3d at 859 (emphasis added).
Ramirez, 334 F.3d at 853.
At issue was whether a § 1983 action or a
The court distinguished between those
Id. at 856 (citing Preiser,
Ramirez then held that “habeas jurisdiction
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Under the facts of the case, the court stated petitioner’s § 1983
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suit was proper, because even “if [his challenge was] successful,
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Ramirez will not necessarily shorten the length of his
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confinement because there has been no showing by the State that
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the expungement Ramirez seeks is likely to accelerate his
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eligibility for parole.”
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Id. at 859.
Finally, in Docken, a petitioner argued that a parole board
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violated his constitutional rights when it changed the time
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between his parole reviews from one to five years.
Docken, 393
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F.3d at 1026.
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certain that the change in frequency of review could impact the
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duration of his confinement, especially given the petitioner’s
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designation as a “dangerous offender.” Id. at 1031.
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its guiding principle, the court determined that to find a claim
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“likely” to accelerate a prisoner’s eligibility for parole under
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Bostic, a “sufficient nexus” between the claim and the length of
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imprisonment must be found “so as to implicate but not fall
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squarely within, the core challenges identified by the Preiser
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Court.”
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In finding the petitioner’s claim viable, the court adopted the
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following rule:
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The court stated that it was possible but not
In defining
Id.; Preiser, 411 U.S. at 487; Bostic, 884 F.2d at 1269.
We therefore hold that when prison inmates seek only
equitable relief in challenging aspects of their
parole review that, so long as they prevail, could
potentially affect the duration of their confinement,
such relief is available under the federal habeas
statute.
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Docken, 393 F.3d at 1031 (emphasis contained within opinion).
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///
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///
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Case 2:10-cv-00642-MCE -EFB Document 23
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Filed 09/30/11 Page 6 of 14
The Ninth Circuit, then, has created three arguably
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different standards regarding the availability of federal habeas
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review for expungement of disciplinary convictions.
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Bostic, habeas jurisdiction is proper if expungement of a
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disciplinary conviction is “likely to accelerate the prisoner’s
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eligibility for parole.”
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Ramirez, habeas is absent “where a successful challenge to a
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prison condition will not necessarily shorten the prisoner’s
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sentence.”
Bostic, 884 F.2d at 1269.
Ramirez, 334 F.3d at 859.
Under
Under
Finally, under Docken,
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habeas jurisdiction is proper when a prisoner challenges aspects
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of his parole review that “could potentially affect the duration
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of [his] confinement.”
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Docken, 393 F.3d at 1031.
The holdings have led to inconsistency among district courts
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addressing the existence of federal habeas jurisdiction in
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prisoner claims seeking expungement of prison disciplinary
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convictions.1
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See Stuart v. Singh, 2011 WL 2746096 at *9 (E.D. Cal.
2011) (impact of disciplinary hearing too speculative because
petitioner “had not yet had a parole suitability hearing which
actually considered the impact of the subject disciplinary
conviction”); Aguiar v. Haviland, 2011 WL 2066762 at *2-3 (E.D.
Cal. 2011) (impact of disciplinary conviction too speculative
because at previous parole board hearing, eligibility was denied
for several reasons, and most strongly because of petitioner’s
failure to accept responsibility); Norman v. Salazar, 2010 WL
2197541 at *2-3 (C.D. Cal. 2010) (previous parole hearing relied
on several factors, thus impact of disciplinary conviction upon
future hearings was too speculative); Santibanez v. Marshall,
2009 WL 1873044 at *7 (C.D. Cal. 2009) (finding impact of
disciplinary conviction too speculative; the court considered the
“minor nature” of the administrative discipline at issue for
expungement against the petitioner’s three previous serious
disciplinary convictions); but see Murphy v. Dep’t of Corr. &
Rehab., 2008 WL 111226 at *7 (N.D. Cal. 2008) (review of claim
(continued...)
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Case 2:10-cv-00642-MCE -EFB Document 23
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In particular, Docken appears to create a lower threshold for
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establishing the existence of federal habeas jurisdiction in some
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instances as opposed to the standards articulated in Bostic and
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Ramirez.
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Some courts, for example, have applied the Docken standard
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to cases like the instant case, where a petitioner seeks
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expungement alleging that a procedure used during a disciplinary
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hearing violated his due process rights.
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these cases, habeas jurisdiction has been found to exist because
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expungement of a disciplinary conviction could potentially affect
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the duration of a prisoner’s confinement.
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review panels consider prison conduct as a factor in determining
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parole eligibility, an expungement of a prisoner’s disciplinary
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record could potentially affect his eligibility for parole, and
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therefore could potentially affect the duration of his
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confinement.
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See supra, n.1. In
Indeed, because parole
The Docken standard for establishing federal habeas
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jurisdiction, however, is arguably limited to petitioners
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“challenging aspects of [] parole review”, such as the timing
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between parole hearings, and not direct challenges to
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disciplinary convictions.
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///
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(...continued)
proper because expungement of disciplinary conviction could
affect duration of confinement, and because the violation
actually did serve as a basis for denial of parole in this case);
Rodarte v. Grounds, 2011 WL 2531300, at *3-4 (N.D. Cal. 2011)
(despite no evidence that petitioner was ever denied parole based
on disciplinary conviction, the impact of such convictions could
potentially affect parole eligibility); see also Hardney v.
Carey, 2011 WL 1302147 (E.D. Cal. 2011).
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Case 2:10-cv-00642-MCE -EFB Document 23
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Docken, 393 F.3d at 1031 (timing between parole hearings is “even
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more related to the duration of [] confinement than eligibility
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for parole in the abstract”). Docken specifically dealt with a
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prisoner’s claim with respect to the length of time between
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parole hearings, whereas in Ramirez and Bostic, the petitioners
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attacked the disciplinary hearings themselves and the resulting
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convictions.
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“[u]nlike this case, Ramirez concerned a challenge to internal
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disciplinary procedures and administrative segregation that
Additionally, Docken distinguished Ramirez, stating
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resulted from it. Ramirez’s suit did not deal with the fact or
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duration of his confinement.”
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Docken, 393 F.3d at 1030 n.4.
Under this reasoning, which this Court hereby adopts, the
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Ramirez and Bostic standards apply to this case, while Docken
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does not, because petitioner is attacking the disciplinary
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procedures and the resulting conviction, not aspects of parole
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review.
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II.
HABEAS JURISDICTION TO REVIEW PETITIONER’S DISCIPLINARY
CONVICTION
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Bostic established federal jurisdiction to review
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expungements where it is likely to accelerate eligibility for
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parole.
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conviction will likely be an important consideration to any
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parole board determination of eligibility, it cannot be said that
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the conviction would likely accelerate eligibility, because many
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factors go into determining whether a prisoner is eligible for
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parole.
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///
Bostic, 884 F.2d at 1269.
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Although a disciplinary
Case 2:10-cv-00642-MCE -EFB Document 23
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See Cal. Code Regs., tit. 15 § 2402(a) (listing eligibility
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factors considered by parole boards); see also Calderon-Silva,
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2010 WL 5392895, at *3 (“[a]lthough a disciplinary conviction may
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not help an inmate who is seeking release on parole, it is only
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one of a myriad of considerations relevant to a parole
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decision”).
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9
10
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For example, parole board panels consider
prisoner’s social history; past and present mental
state; past criminal history, including involvement in
other criminal misconduct which is reliably documented;
the base and other commitment offenses, including
behavior before, during and after the crime; past and
present attitude toward the crime; any conditions of
treatment or control, including the use of special
conditions under which the prisoner may safely be
released to the community.
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Cal. Code Regs., tit. 15 § 2402(b).
13
previous record of violence, social history, sexual offenses,
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psychological factors, and institutional behavior.
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Regs., tit. 15 § 2402(c).
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“the prisoner will pose an unreasonable risk of danger to society
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if released from prison.”
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Panels also consider
Cal. Code
The ultimate decision rests on whether
Cal. Code Regs. tit. 15, § 2402(a).
Similarly, under Ramirez, even if petitioner is successful
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on the merits of his challenge to his disciplinary conviction,
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expungement might, but would “not necessarily shorten” his
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sentence.
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negative factor may or may not foreclose a favorable parole
23
determination.
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Ramirez, 334 F.3d at 859.
The presence of one
The impact of expunging Petitioner’s disciplinary conviction
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on parole eligibility, therefore, is simply too speculative to
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hold federal habeas jurisdiction exists.
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necessarily shorten his sentence, nor can it be said to be likely
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to accelerate his eligibility for parole.
9
Expungement would not
Case 2:10-cv-00642-MCE -EFB Document 23
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Filed 09/30/11 Page 10 of 14
United States Supreme Court precedent provides additional
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support for this analysis.
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115 S. Ct. 2293 (1995), a prisoner brought forth a claim arguing
4
that a Hawaii prison regulation and the Due Process Clause
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afforded the prisoner a protected liberty interest such that a
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disciplinary sentence of 30 days segregation was
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unconstitutional.
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constitutional, the court also addressed the impact of the
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conviction on his parole eligibility in the future:
10
In Sandin v. Conner, 515 U.S. 472;
In finding the 30-day punishment itself
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Nor does [Petitioner’s] situation present a case where
the State’s action will inevitably affect the duration
of his sentence. Nothing in Hawaii’s code requires the
parole board to deny parole in the face of a misconduct
record or to grant parole in its absence, Haw. Rev.
Stat. §§ 353-68, 353-69 (1985), even though misconduct
is by regulation a relevant consideration, Haw. Admin.
Rule § 23-700-33(b) (effective Aug. 1992). The
decision to release a prisoner rests on a myriad of
considerations. And, the prisoner is afforded
procedural protection at his parole hearing in order to
explain the circumstances behind his misconduct record.
Haw. Admin. Rule §§ 23-700-31(a), 23-700-35(c),
23-700-36 (1983). The chance that a finding of
misconduct will alter the balance is simply too
attenuated to invoke the procedural guarantees of the
Due Process Clause.
19
Id. at 487 (emphasis added); see also Spencer v. Kemna, 523 U.S.
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1, 14, 118 S. Ct. 978, 986 (1998) (parole revocation impacting
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future parole proceedings is only a “possibility rather than
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certainty or even a probability” and is “simply one factor, among
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many, that may be considered by the parole authority in
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determining whether there is a substantial risk that the parole
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candidate will not conform to reasonable conditions of parole”);
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///
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///
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///
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Case 2:10-cv-00642-MCE -EFB Document 23
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Wilson v. Terhune, 319 F.3d 477, 480-481 (9th Cir. 2003)
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(adopting Spencer stating “[b]ecause the decision whether to
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grant parole is left to the judgment of the Board of Prison
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terms, Cal. Code Regs. Tit. 15 § 2402, the likelihood of delayed
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or denied parole is a type of nonstatutory consequence dependant
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on discretionary decisions that is insufficient to apply the
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presumption of collateral consequences”).
8
9
As the Supreme Court has recognized, parole determinations
can rest on any number of different factors.
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Consequently, federal habeas jurisdiction to review Petitioner’s
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claim for expungement is absent under the facts of this case.
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III. FEDERAL HABEAS JURISDICTION TO REVIEW PETITIONER’S CLAIM FOR
RESTORATION OF GOOD TIME CREDITS
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Petitioner is serving an indeterminate life sentence with
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the possibility of parole.
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as a result of his disciplinary conviction.
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held that a prisoner may seek federal habeas relief from a loss
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of good-time credit where restoration of those credits would
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result in his immediate release from prison or in shortening the
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length of his confinement.
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He lost 360 days of good-time credits
The Preiser Court
Preiser, supra, 411 U.S. at 487.
Under Cal. Code Regs tit. 15, § 2400, good-time credits in
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Petitioner’s case would only serve to reduce his minimum eligible
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parole date.
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eligible parole date as of the time of his disciplinary
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conviction.
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extent because the credits can no longer reduce his minimum
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eligible parole date.
Petitioner, however, had already passed his minimum
Thus, his good-time credits are meaningless to an
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See e.g., Thomas v. Wong, 2010 WL 1233909 at *3-4 (N.D. Cal.
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2010) (claim of petitioner, an indeterminate-sentenced inmate who
3
challenged loss of good time credit, not cognizable on federal
4
habeas review because claim did not inevitably effect fact or
5
length of confinement); Norman v. Salazar, 2010 WL 2197541 at
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*2-3 (C.D. Cal. 2010) (petitioner’s claim seeking restoration of
7
good-time credit not cognizable on federal habeas review;
8
punishment had no bearing on the fact or duration of petitioner’s
9
confinement because petitioner was serving indeterminate life
10
sentence and minimum eligible parole date had passed);
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Calderon-Silva v. Uribe, 2010 WL 5392895 (C.D. Cal. Aug. 31,
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2010) (same).
13
California, however, also has a separate “postconviction
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credit” scheme by which prisoners earn credits that effectively
15
reduce a prisoner’s period of confinement.
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15, § 2400 (“[t]he standards for the department’s action in
17
reducing the minimum eligible parole date and the standards for
18
the board’s decision whether to reduce the period of confinement
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are different”).
20
however, until a reviewing parole board establishes a base level
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of confinement.
22
whether and when a prisoner may earn credits to reduce his term
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of confinement is within the discretion of the board.
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the record does not establish that a parole board has yet
25
established Petitioner’s period of confinement.
26
///
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///
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///
Cal. Code Regs. tit.
Postconviction credits are not granted,
Cal. Code Regs. tit. 15, § 2400.
12
And even then,
Id.
Here,
Case 2:10-cv-00642-MCE -EFB Document 23
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Filed 09/30/11 Page 13 of 14
The impact of Petitioner’s loss of good-time credit on
2
shortening his term of confinement, therefore, is also too
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speculative.
4
in terms of reducing his minimum eligible parole date, but
5
whether or when these credits would be applied to impact
6
Petitioner’s period of confinement is a decision within the sole
7
discretion of a reviewing parole board.
8
seeking restoration of good-time credits under the facts of this
9
case is not cognizable for federal habeas review.
Not only is the loss of credits largely meaningless
Thus, Petitioner’s claim
10
11
IV.
CONCLUSION
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13
This Court finds that federal habeas jurisdiction is not
14
available for relief under the facts of this case. The likely
15
impact of expunging Petitioner’s disciplinary conviction on
16
Petitioner’s future parole eligibility is too speculative given
17
the myriad of factors considered by a reviewing parole board.
18
Additionally, Petitioner’s good-time credit reduction cannot
19
impact his minimum eligible parole date because that date has
20
already passed.
21
period of confinement at a future time is pure speculation as all
22
decisions regarding credits are within the sole discretion of a
23
reviewing parole board.
24
and loss of good-time credits do not sufficiently impact
25
Petitioner’s eligibility for parole or the duration of his
26
confinement to be eligible for federal habeas review.
27
///
28
///
Whether these credits will be meaningful to his
Thus, Petitioner’s disciplinary record
13
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Given the foregoing, then, IT IS HEREBY ORDERED that:
2
1.
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are REJECTED;
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2.
5
6
The Findings and Recommendations, filed August 31,2011,
Respondent’s September 23, 2010 Motion to Dismiss is
GRANTED;
3.
Petitioner’s motion for a 45-day extension of time to
7
further respond to Respondent’s objections, ECF No. 22, is DENIED
8
since any further input from Petitioner will not change the
9
analysis set forth above.
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IT IS SO ORDERED.
Dated:
September 30, 2011
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________________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE
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