(HC) Riley v. Paramo, No. 1:2015cv01836 - Document 29 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS recommending that the Court Dismiss the 4 Petition for Writ of Habeas Corpus for Lack Jurisdiction and Decline to Issue a Certificate of Appealability ;referred to Judge O'Neill, signed by Magistrate Judge Sheila K. Oberto on 11/23/2016. Objections to F&R due by 1/3/2017 (Martin-Gill, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SHANNON RILEY, 12 Petitioner, 13 14 15 v. FINDINGS AND RECOMMENDATION THAT COURT DISMISS PETITION FOR LACK OF JURISDICTION DANIEL PARAMO, Warden, R.J. Donovan Correctional Facility, (Docs. 19 and 21) Respondent. 16 17 18 No. 1:15-cv-01836-LJO-SKO HC Petitioner Shannon Riley is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner contends that his due process rights were 19 20 21 violated in prison disciplinary proceedings that found him guilty of fighting. Respondent Daniel Paramo, Warden of the R.J. Donovan Correctional Facility, moves to dismiss the petition, 22 contending that because Petitioner’s claims do not challenge the fact of duration of his physical 23 imprisonment, they are not cognizable in a habeas proceeding. The undersigned agrees that the 24 petition does not concern the “core of habeas” and recommends that the Court dismiss the petition 25 for lack of federal habeas jurisdiction. 26 /// 27 28 /// 1 1 I. 2 3 Procedural and Factual Background In 1990, Petitioner was convicted in Los Angeles County Superior Court of second degree murder (Cal. Penal Code §§ 187). The court sentenced Petitioner to imprisonment for a term of 4 15 years to life. 5 On August 28, 2013, the California Department of Corrections and Rehabilitation 6 7 (CDCR) found Petitioner guilty of a prison disciplinary violation, fighting, and imposed, among 8 other sanctions, a 90-day loss of custody credits. Asserting a violation of due process (lack of 9 sufficient evidence), Petitioner pursued administrative appeals, which were denied at all levels. 10 In a petition filed February 20, 2015, Petitioner repeated his allegation of a due process 11 violation in a state petition for writ of habeas corpus filed in Kern County Superior Court. On 12 13 14 15 February 23, 2015, the superior court summarily denied the petition. Petitioner filed petitions in the California Court of Appeal and the California Supreme Court, each of which summarily rejected the petition. 16 17 18 19 Petitioner filed a § 2254 petition in the District of Northern California on November 5, 2016. The petition was transferred to this district on December 8, 2015. On April 8, 2016, Petitioner filed a supplementary motion for expungement of the disciplinary violation based on recent California legislation concerning parole hearings for youthful offenders.1 On May 10, 20 21 22 2016, Respondent moved to dismiss the action for lack of jurisdiction. II. Petitioner’s Claim Does Not Lie at the Core of Habeas 23 The pending motion to dismiss requires the Court to analyze recent case law addressing 24 whether losses of good time credits in prison disciplinary proceedings are properly addressed in 25 habeas corpus or in § 1983 civil rights actions. 26 /// 27 1 28 The supplemental motion for expungement is more properly classified as a supplemental ground for the pending habeas petition. 2 1 2 3 In Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016) (en banc) (“Nettles II”), superseding 788 F.3d 992, 1004 (9th Cir. 2015) (“Nettles I”), the Ninth Circuit Court of Appeals sought to resolve the ambiguity of when a state inmate seeking return of good time credits lost in a 4 disciplinary action may pursue habeas relief under 28 U.S.C. § 2254 and when he must file a 5 6 7 8 § 1983 complaint. The court held that any claim that concerns the fact or duration of a conviction or sentence must be addressed in a habeas proceeding. Nettles, who was serving a determinate term of 12 years and a life term with possibility of 9 parole, sought expungement of a February 2008 rules violation report and restoration of thirty- 10 days lost post-conviction credits. 830 F.3d at 927. After exhausting administrative and state 11 remedies, Nettles filed a habeas petition pursuant to 28 U.S.C. § 2254. Id. The district court 12 13 14 dismissed his petition, holding that Petitioner could not prove that expungement of the rules violation report and restoration of lost credits were likely to accelerate his eligibility for parole. 15 Id. A Ninth Circuit panel agreed and denied habeas jurisdiction because of Nettles’ indeterminate 16 sentence: ”Without knowing how many years Nettles will serve before the Board finds him 17 suitable for parole or the length of his base term, we cannot conclude that restoration of the lost 18 good-time credits would necessarily affect the duration of Nettles’ confinement if and when the 19 Board finds him suitable for parole.” Nettles I, 788 F.3d at 1004. 20 21 Following rehearing en banc, the Nettles II court rejected prior case law to the extent that 22 it considered habeas jurisdiction to depend on the likelihood that the petitioner’s claim would lead 23 to an earlier release or reduction in the duration of confinement. 830 F.3d at 933-34. The court 24 opined that analyzing habeas jurisdiction by attempting to calculate the probability that a claim 25 will lead to earlier release or could potentially effect the duration of confinement does not provide 26 27 a helpful measure by which a prisoner can determine whether a claim may be brought in a habeas petition. Id. at 934. Accordingly, in Nettles II, the Ninth Circuit adopted the rule that “if a 28 3 1 prisoner’s claim does not lie at ‘the core of habeas corpus,’ [Preiser v. Rodriguez, 411 U.S.475, 2 487 (1973)] , it may not be brought in habeas corpus but must be brought, ‘if at all,’ under 3 § 1983, [Skinner v. Switzer, 562 U.S. 521, 535 n. 13 (2011)].” 830 F.3d at 934. 4 In other words, “[i]f the prisoner’s claim challenges the fact or duration of the conviction or sentence, compliance 5 6 with [the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")] is mandated, while 7 if the claim challenges any other aspect of prison life, the prisoner must comply with the [Prison 8 Litigation Reform Act (“PLRA”)].” Id. 9 10 11 12 13 14 Applying its holding to Nettles’ habeas petition, the Nettles II court rejected Nettles’ claim that expunging his 2008 rules violation report would likely result in his next parole hearing’s being held at an earlier date. Id. at 934-35. Under California law, the parole board must consider all relevant and reliable information in its determination whether the prisoner “constitutes a current threat to public safety.” Id. at 935 (quoting In re Lawrence, 44 Cal. 4th 1181, 1213 15 (2008)). The parole board may deny parole “on the basis of any of the grounds presently 16 available to it.” Nettles II, 830 F.3d at 935 (quoting Ramirez v. Galaza, 334 F.3d 850, 859 (9th 17 Cir. 2003)). As a result, “the presence of a disciplinary infraction does not compel the denial of 18 19 parole, nor does an absence of an infraction compel the grant of parole. Id. Where a petitioner’s success on his habeas claims would not necessarily lead to his 20 21 immediate or earlier release from custody, the claim does not fall within “the core of habeas 22 corpus.” Id. Accordingly, the Ninth Circuit held that Nettles’ claim had to be brought in a 23 § 1983 action. Id. 24 25 26 The analysis and outcome are the same in this case. Petitioner seeks to set aside the disciplinary rule violation against him that resulted in a 90-day credit loss. Because Petitioner is serving an indeterminate sentence of 15 years to life, setting aside the rules violation and the 27 resulting credit loss will not result in his securing parole or an earlier release. Under the Nettles II 28 4 1 analysis, his claims are not within the core of habeas corpus and must be pursued in an action 2 pursuant to 42 U.S.C. § 1983. Accordingly, the undersigned recommends that the Court dismiss 3 the petition for lack of habeas jurisdiction. 4 III. Converting The Petition to a § 1983 Action Would Be Inappropriate 5 In addition to clarifying federal courts’ habeas jurisdiction to claims within the core of 6 7 habeas, the Nettles II court provided that a district court may construe a habeas petition to plead a 8 civil rights claim after notifying the prisoner and obtaining his informed consent. 830 F.3d at 9 935-36. The undersigned recommends that the Court decline to do so in this case. 10 11 To be converted to a § 1983 action, the petition must be amenable to conversion “on its face,” that is, it must name the correct defendant(s) and seek the correct relief. See id. at 936. 12 13 14 Respondent Daniel Paramo, the warden of the R.J. Donovan Correctional Facility, would not be an appropriate defendant in a civil rights action since Petitioner’s claims do not address Paramo’s 15 conduct. In addition, the petition would require substantial amendment to recast its grounds for 16 relief as civil rights claims and to identify and link the defendants allegedly responsible for each 17 claim. 18 IV. 19 Supplemental Motion to Expunge Disciplinary Violation Because this Court lacks jurisdiction of the petition for writ of habeas corpus, it also lacks 20 21 22 23 jurisdiction of Petitioner’s supplemental motion for expungement. V. Certificate of Appealability A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a 24 district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. 25 Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a 26 certificate of appealability is 28 U.S.C. § 2253, which provides: 27 28 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by 5 1 the court of appeals for the circuit in which the proceeding is held. 2 (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. 3 4 5 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— 6 7 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or 8 9 (B) the final order in a proceeding under section 2255. 10 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. 11 12 (3) The certificate of appealability under paragraph (1) shall indicate which specific issues or issues satisfy the showing required by paragraph (2). 13 14 15 If a court denies a habeas petition, the court may only issue a certificate of appealability 16 "if jurists of reason could disagree with the district court's resolution of his constitutional claims 17 or that jurists could conclude the issues presented are adequate to deserve encouragement to 18 19 proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the petitioner is not required to prove the merits of his case, he must demonstrate 20 21 22 "something more than the absence of frivolity or the existence of mere good faith on his . . . part." Miller-El, 537 U.S. at 338. Reasonable jurists would not find the Court's determination that Petitioner is not entitled 23 24 to federal habeas corpus relief to be debatable or wrong, or conclude that the issues presented 25 require further adjudication. Accordingly, the Court should decline to issue a certificate of 26 appealability. 27 /// 28 6 1 VI. 2 3 Conclusion and Recommendation The undersigned recommends that the Court dismiss the Petition for writ of habeas corpus for lack of jurisdiction and decline to issue a certificate of appealability. 4 These Findings and Recommendations will be submitted to the United States District 5 6 Judge assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty 7 (30) days after being served with these Findings and Recommendations, either party may file 8 written objections with the Court. The document should be captioned AObjections to Magistrate 9 Judge=s Findings and Recommendations.@ Replies to the objections, if any, shall be served and 10 11 filed within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may constitute waiver of the right to appeal the District 12 13 14 Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 17 IT IS SO ORDERED. Dated: November 23, 2016 /s/ 18 Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 7 .
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