(HC) Oliver v. Arnold et al, No. 2:2014cv02364 - Document 18 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/4/15 RECOMMENDING that the petition be dismissed for lack of jurisdiction. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days.(Dillon, M)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY WAYNE OLIVER, 12 13 14 15 No. 2:14-cv-2364 GEB CKD P Petitioner, v. FINDINGS AND RECOMMENDATIONS E. ARNOLD, Respondent. 16 17 In this habeas action pursuant to 28 U.S.C. § 2254, petitioner challenges a 2012 18 disciplinary conviction for which he was assessed a 360-day loss of credits. (ECF No. 1 at 5, 91- 19 95.) Petitioner is serving a state prison term of 33 years to life pursuant to a 1984 criminal 20 conviction. (Id. at 1-2.) In 2014, the petition was briefed on the merits. (ECF Nos. 10 & 13.) 21 On September 29, 2015, the undersigned directed the parties to file supplemental briefs on 22 the issue of jurisdiction under the Ninth Circuit’s recent decision, Nettles v. Grounds, 788 F.3d 23 992 (9th Cir. 2015). The parties have done so. (ECF Nos. 15 & 17.) 24 As petitioner is serving an indeterminate sentence, a grant of relief in this action would 25 not result in his speedier release from prison. See Nettles, 788 F.3d at 1004. Moreover, as he is 26 no longer in segregated housing pursuant to the challenged conviction, relief in this action would 27 not cause a reduction of the level of custody. See id. at 1005. Under the circumstances, the 28 parties agree that Nettles precludes federal habeas jurisdiction over this action. 1 1 2 Accordingly, IT IS HEREBY RECOMMENDED that the petition be dismissed for lack of jurisdiction. 3 These findings and recommendations are submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 5 after being served with these findings and recommendations, any party may file written 6 objections with the court and serve a copy on all parties. Such a document should be captioned 7 “Objections to Magistrate Judge’s Findings and Recommendations.” In his objections petitioner 8 may address whether a certificate of appealability should issue in the event he files an appeal of 9 the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district 10 court must issue or deny a certificate of appealability when it enters a final order adverse to the 11 applicant). The parties are advised that failure to file objections within the specified time may 12 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 13 1991). 14 Dated: November 4, 2015 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 2/oliv2364.fr 20 21 22 23 24 25 26 27 28 2
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