(HC) Noor v. Martell, No. 2:2008cv01656 - Document 18 (E.D. Cal. 2009)
Court Description: ORDER denying 8 Motion to Dismiss signed by Judge William B. Shubb on 7/1/09. (Kaminski, H)
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(HC) Noor v. Martell Doc. 18 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 ----oo0oo---9 MARVIN DEAN NOOR, NO. CIV. 08-1656 WBS JFM 10 Petitioner, ORDER RE: MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS 11 v. 12 M. MARTELL, Warden (A), 13 Respondent. 14 15 16 / ----oo0oo---Based on a prison disciplinary action taken against 17 him, petitioner Marvin Dean Noor filed this petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. 19 state prisoner proceeding pro se, his case was referred to a 20 United States Magistrate Judge pursuant to § 636(b)(1)(B) and 21 Local General Order No. 262. 22 Judge recommended that the court deny respondent’s motion to 23 dismiss petitioner’s habeas action as moot. 24 timely objections, and the court now reviews the Magistrate 25 Judge’s Findings and Recommendations de novo. 26 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). 27 28 As petitioner is a On April 30, 2009, the Magistrate Respondent filed 28 U.S.C. § In 1980, petitioner plead guilty to first-degree murder and was sentenced to life imprisonment with the possibility of 1 Dockets.Justia.com 1 parole. (Habeas Pet. ¶ 4.) Petitioner has been eligible for 2 parole since 1993 but has been denied parole six times, including 3 the most recent denial in October 2005. 4 In July 2006, petitioner was charged with the rules violation of 5 “Inappropriate Conduct in the Visiting Room” based on his alleged 6 “excessive contact” with his wife during a supervised visit. 7 (Id. Ex. A at 3-4.) 8 was found guilty and, as a consequence, was placed on “no-visit” 9 status for ninety days and assessed thirty days “loss of (Resp’t’s Mem. Ex. B.) Although petitioner denied the charges, he 10 behavioral credit.” 11 and state judicial remedies, petitioner filed this habeas action, 12 seeking to expunge the 2006 prison disciplinary action and 13 findings from his record. 14 now moves to dismiss petitioner’s action as moot because the no- 15 visit status has long since expired and the loss of the 16 behavioral credit will not impact petitioner’s duration of 17 confinement. 18 (Id.) After exhausting his administrative (Habeas Pet. ¶¶ 10-13.) Respondent In determining that petitioner’s claim is not moot, the 19 Magistrate Judge relied on Bostic v. Carlson, 884 F.2d 1267 (9th 20 Cir. 1989), which held that “[h]abeas corpus jurisdiction [] 21 exists when a petitioner seeks expungement of a disciplinary 22 finding from his record if expungement is likely to accelerate 23 the prisoner’s eligibility for parole.” 24 years after Bostic, the Ninth Circuit explained that the use of 25 the term “likely” was intended to identify “claims with a 26 sufficient nexus to the length of imprisonment so as to 27 implicate, but not fall squarely within, the ‘core’ challenges 28 identified by the [Supreme Court in] Preiser” v. Rodriguez, 411 2 Id. at 1269. Fifteen 1 U.S. 475 (1973). Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2 2004); see Preiser, 411 U.S. at 487-89 (identifying claims that 3 are “within the core of habeas corpus” as those that attack “the 4 very duration of [a prisoner’s] physical confinement” by seeking 5 immediate release from or a reduction in the length of 6 confinement). As mootness was not at issue in Bostic, its standard of 7 8 allowing habeas jurisdiction when “expungement is likely to 9 accelerate the prisoner’s eligibility for parole” must be 10 considered in light of precedent that directly addresses the 11 issue before the court: whether petitioner’s claim is now moot. “A case becomes moot when ‘it no longer present[s] a 12 13 case or controversy under Article III, § 2, of the 14 Constitution.’” 15 2003) (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)) 16 (alteration in original). 17 requirement that a petitioner be in “custody” at the time of 18 seeking habeas relief, a claim is potentially moot if the very 19 “custody” the petitioner challenges terminates.1 Wilson v. Terhune, 319 F.3d 477, 479 (9th Cir. Based on § 2254’s jurisdictional Spencer, 523 20 21 22 23 24 25 26 27 28 1 “Custody” for purposes of § 2254 extends beyond physical incarceration to include “conditions and restrictions” that “significantly confine and restrain [petitioner’s] freedom.” Jones v Cunningham, 371 U.S. 236, 243 (1963). Petitioner agrees that his ninety-day no-visit status expired on October 22, 2005. He also does not dispute respondent’s representation that, because he has been eligible for parole since 1993, the thirty-day credit loss could not affect his release date. (Resp’t’s Mem. 3:1-13, 4:4-13.) Petitioner initially contends his claim is not moot because he and his wife were also excluded from the “Friday visiting program” for three years, and that restriction is still in effect. The Magistrate Judge did not address this alleged restriction, and the disposition of petitioner’s Rules Violation Report does not reflect it. (Resp’t’s Mem. Ex. A at 4); see Safe 3 1 U.S. at 7; Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir. 2 1998). 3 petitioner may nonetheless avoid dismissal of a habeas petition 4 as moot if “some concrete and continuing injury other than the 5 now-ended [“custody”]--some ‘collateral consequence’ of the 6 conviction--” remains. 7 LaVallee, 391 U.S. 234, 237 (1968) (explaining that collateral 8 consequences are “‘disabilities or burdens [which] may flow from’ 9 [a] petitioner’s conviction,” thereby giving the petitioner “‘a When the challenged “custody” has terminated, a Spencer, 523 U.S. at 7; see Carafas v. 10 substantial stake in the judgment of conviction which survives 11 the satisfaction of the sentence imposed on him’”) (first 12 alteration in original). The existence of collateral consequences that may avoid 13 14 dismissal of a habeas petition as moot can either be presumed or 15 proven. 16 consequences are presumed when a habeas petition attacks a 17 criminal conviction. 18 40, 55-56 (1968)). 19 collateral consequences does not apply to a habeas petition that 20 seeks to reverse a revocation of parole. Spencer, 523 U.S. at 8. For example, collateral Id. (citing Sibron v. New York, 392 U.S. On the other hand, the presumption of Id. at 14. 21 22 23 24 25 26 27 28 Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (“In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment.”); Biggs v. Terhune, 334 F.3d 910, 916 (9th Cir. 2003) (taking judicial notice of “the transcript of [petitioner’s] hearing before the Board of Prison Terms” and stating that “[m]aterials from a proceeding in another tribunal are appropriate for judicial notice”). Assuming the “Friday visiting program” restriction amounts to “custody” under § 2254, see infra note 2, the court cannot maintain habeas jurisdiction based solely on the unsupported allegation that a three-year visiting restriction resulted from the disciplinary action that petitioner seeks to expunge. 4 1 In holding that the revocation of parole was 2 insufficient to give rise to the presumption of collateral 3 consequences, the Supreme Court reasoned that, even though “the 4 parole violations found by the revocation decision would enable 5 the parole board to deny [petitioner’s] parole in the future,” 6 this consequence was too speculative, especially because the 7 petitioner was “able--and indeed required by law--” to avoid 8 returning to prison and becoming eligible for parole in the 9 future. Id. at 13. The possibility that a parole revocation 10 might affect a petitioner’s future employment prospects or 11 criminal sentence was also insufficient to give rise to the 12 presumption of collateral consequences: 13 14 15 16 These “nonstatutory consequences” were dependent upon “[t]he discretionary decisions . . . made by an employer or a sentencing judge,” which are “not governed by the mere presence or absence of a recorded violation of parole,” but can “take into consideration, and are more directly influenced by, the underlying conduct that formed the basis for the parole violation.” 17 Id. (quoting Lane v. Williams, 455 U.S. 624, 632-33 (1982)) 18 (alteration in original). 19 The Ninth Circuit has also held that “the presumption 20 of collateral consequences does not apply to prison disciplinary 21 proceedings.” 22 is required to consider any disciplinary actions when determining 23 whether a prisoner should be granted parole, Cal. Code Regs. tit. 24 15, § 2402, the Ninth Circuit reasoned that the delay or denial 25 of parole based on prison disciplinary proceedings presents the 26 “type of nonstatutory consequence [that is] dependent on 27 discretionary decisions” and thus insufficient to give rise to 28 the presumption of collateral consequences. Wilson, 319 F.3d at 480. 5 Although a parole board Wilson, 319 F.3d at 1 481. Petitioner is therefore unable to rely on the presumption 2 of collateral consequences to withstand dismissal of his claim as 3 moot. 4 at *1 (E.D. Cal. May 25, 2007).2 Id.; accord Franco v. Clark, No. 07-267, 2007 WL 1544715, 5 Nonetheless, petitioner’s habeas petition is not 6 subject to dismissal as moot if he can prove that actual 7 collateral consequences are a likely--not merely speculative or 8 ephemeral--result from the disciplinary action he challenges. 9 Wilson, 319 F.3d at 481 & n.4. Petitioner identifies the delay 10 or denial of his parole as the collateral consequence he will 11 suffer if the 2006 disciplinary action remains in his record. To show that the disciplinary action will delay or 12 13 defeat the grant of his parole, petitioner submitted transcripts 14 from his prior Parole Consideration Hearings.3 15 Parole Board denied petitioner parole on March 14, 2002, it 16 expressly warned petitioner that his receipt of another 17 disciplinary action would adversely and unequivocally affect his 18 chance of receiving parole in the future: 19 20 21 22 First, when the And the recommendations that we’re making, Mr. Noor, is that you become, first of all, and you remain disciplinary free. In your case, sir, you cannot afford one disciplinary because when you get a disciplinary you have to put time between that disciplinary. And it’s not just the Panel members, it’s the totality of the review process. As I mentioned to you earlier it goes to 23 2 24 25 26 27 28 Although the Magistrate Judge did not discuss Spencer or Wilson, it appears he relied on something akin to the presumption of collateral consequences. (See Mag. J.’s Findings & Recommendations 2:21-3:3 & n.2.) 3 The court may properly consider the transcripts from petitioner’s Parole Consideration Hearings to resolve whether it has jurisdiction over this matter, Safe Air for Everyone, 373 F.3d at 1039, and may take judicial notice of the transcripts, Biggs, 334 F.3d at 916. 6 1 2 3 4 5 6 7 decision review and from there to the governor and disciplinaries is like a kiss of death. You get a disciplinary, you just may as well give yourself additional time in prison. Especially the kind that you received, a Division E I believe it was. You cannot receive those, not even a 128(a). So, you need to get disciplinary free and you need to put some time between that . . . . [Y]ou have to be cognizant of your surroundings, and you have to be really aware that you cannot receive disciplinaries and that you have to be disciplinary free. (Pet.’s Opp’n Ex. A at 100:4-22, 101:4-7 (emphasis added).) Three years later at petitioner’s Parole Consideration 8 9 Hearing on August 23, 2005, the Parole Board referenced the 10 warnings it gave petitioner about receiving disciplinaries during 11 his 2002 hearing (id. Ex. B at 44:16-23) and again admonished him 12 about the effects of his past and any future disciplinary 13 actions: 14 15 16 17 18 19 Furthermore we feel that in terms of your gains you must be able to demonstrate that you can go a longer period of time with those gains before you can be found suitable for parole. Specifically what I am talking about is 115s, in that in the year 2000 you did receive a 115. That’s only five years ago. You must be able to demonstrate that you can go a longer period of time disciplinary-free before you can be found suitable by this Board. . . . In the meantime, sir, we make the following recommendations. And that is you remain disciplinary-free . . . . 20 (Id. Ex. B at 98:24-99:7, 99:18-20 (emphasis added).) 21 Petitioner’s prison “Cumulative Case Summary” also indicates 22 that, aside from the disciplinary action petitioner challenges, 23 he has remained “disciplinary-free” since last incurring a 24 disciplinary in 2000. 25 together, this evidence shows that subsequent parole boards will 26 likely consider recommendations and warnings that petitioner 27 received at his previous parole hearings and will more than 28 likely delay or deny his parole because of the disciplinary (Resp’t’s Mem. Ex. B at 1.) 7 Taken 1 2 action he challenges. Furthermore, in finding that the petitioner in Wilson 3 did not prove the existence of collateral consequences, the Ninth 4 Circuit emphasized that a future parole board would more likely 5 be influenced by the conduct underlying petitioner’s disciplinary 6 proceeding (escaping from prison), not the proceeding itself. 7 Wilson, 319 F.3d at 482. 8 challenged only the disciplinary proceeding; he did not deny that 9 he had escaped from prison or seek to expunge that conduct from In Wilson, however, the petitioner 10 his record. 11 habeas claims that sought “relief from the imposition of 12 disciplinary sanctions involving forfeiture of statutory good 13 time or segregation from the general prison population” and 14 emphasizing that, “[i]n each case, appellant [sought] expungement 15 of the incident from his disciplinary record”). 16 Id.; see also Bostic, 884 F.2d at 1269 (identifying Similarly, when the Supreme Court first reasoned that 17 potential employers or judges would “take into consideration, and 18 [be] more directly influenced by, the underlying conduct that 19 formed the basis for [a] parole violation,” it clarified that the 20 petitioners had not sought to expunge the conduct underlying the 21 parole violations from their records. 22 & n.14 (“Any disabilities that flow from whatever [petitioners] 23 did to evoke revocation of parole are not removed--or even 24 affected--by a District Court order that simply recites that 25 their parole terms are ‘void.’ 26 not require the Warden to expunge or make any change in any 27 portion of [petitioners’] records. 28 requested such relief.”). See Lane, 455 U.S. at 633 The District Court’s order did Nor have [petitioners] ever But see Spencer, 523 U.S. at 13 n.5 8 1 (recognizing that respondents’ decision not to “attack[] ‘the 2 finding that they violated the terms of their parole’” was “not 3 framed as an independent ground for the decision” in Lane). 4 Unlike the underlying conduct that would have remained 5 in the records of the petitioners in Wilson and Lane even if the 6 their habeas claims were successful, petitioner in this case 7 seeks to expunge the disciplinary action--and thus the findings 8 about the underlying conduct--from his record. 9 § 12(C), 8 at § 12(A).) (Habeas Pet. 6 at If petitioner’s habeas claim is 10 successful, it therefore appears that a future parole board would 11 neither consider petitioner’s disciplinary action nor the conduct 12 giving rise to it. 13 parole consideration hearings also illustrate that the mere 14 presence of the disciplinary action in petitioner’s case-- 15 regardless of the underlying conduct--is likely to delay or 16 defeat any grant of his parole. The transcripts from petitioner’s prior 17 Accordingly, because petitioner has submitted 18 sufficient evidence to show that he is likely to suffer 19 collateral consequences from the challenged disciplinary action, 20 habeas jurisdiction exists and respondent’s motion to dismiss his 21 case as moot should be denied. IT IS THEREFORE ORDERED that respondent’s motion to 22 23 dismiss this action be, and the same hereby is, DENIED. 24 DATED: July 1, 2009 25 26 27 28 9
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