-CKD (HC) Luu v. Solano County Superior Court et al, No. 2:2008cv02630 - Document 62 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/24/2011 RECOMMENDING that respondent's 59 motion to dismiss be granted; and this action be dismissed. Referred to Judge John A. Mendez; Objections due w/in 21 days. (Yin, K)
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-CKD (HC) Luu v. Solano County Superior Court et al Doc. 62 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 QUOC XUONG LUU, 11 Petitioner, 12 vs. 13 No. CIV S 08-2630 JAM CKD P D.K. SISTO, et al. 14 Respondents. 15 FINDINGS AND RECOMMENDATIONS / 16 Petitioner is a California parolee proceeding with an application for writ of habeas 17 corpus under 28 U.S.C. § 2254. He challenges a 2008 prison disciplinary finding that he 18 introduced drugs into prison for distribution.1 As a result of the findings, petitioner suffered a 19 loss of 180 days good conduct sentence credit. Respondents have filed a motion to dismiss. 20 First, respondents argue that this case has become moot by virtue of the fact that 21 petitioner has been paroled. A writ of habeas corpus can only be granted with respect to a person 22 in state custody if the court finds that he is in custody in violation of federal law. See 28 U.S.C. 23 24 25 26 1 In an order dated May 16, 2011, the magistrate judge previously assigned to this case noted that in his April 8, 2010 amended petition, petitioner asserts claims regarding conditions of confinement. The magistrate judge informed petitioner that he may not proceed on such claims in a habeas action. Rather, such claims should be brought in an action for violation of civil rights under 42 U.S.C. § 1983. The judge also noted that, in this action, petitioner may only proceed on claims related to process which resulted in the 2008 prison disciplinary finding that petitioner introduced drugs into prison for distribution. Dockets.Justia.com 1 § 2254(a). Generally speaking, in a writ of habeas corpus, the court can either order a petitioner 2 released from custody, or that the length of his or her sentence be reduced. See Preiser v. 3 Rodriguez, 411 U.S. 475, 498 (1973). If the court no longer has the power to release somebody 4 from prison, or reduce their sentence, a habeas action becomes moot because under Article III, 5 Section 2 of the Constitution the court only has jurisdiction to consider actual “cases” or 6 “controversies.” In order to satisfy the “case or controversy” requirement, the parties must have 7 a personal stake in the outcome of the action in all stages of federal proceedings. Spencer v. 8 Kemna, 523 U.S. 1, 7 (1998). 9 Because petitioner is no longer in prison, restoration of the good conduct credit 10 petitioner lost as a result of the 2008 disciplinary proceedings at issue will do petitioner no good. 11 In other words, petitioner has already been released from prison so granting him more credit 12 towards his ordered term of incarceration does nothing. Petitioner argues that if the court 13 restores the credit petitioner lost, his term of parole will be shorter. However, petitioner fails to 14 point to anything in support of this or anything suggesting that the court has the authority to 15 reduce his period of parole if the court were to find the 2008 disciplinary finding violates federal 16 law. See Nonnette v. Small, 316 F.3d 872, 875 (9th Cir. 2002) (restoration of good conduct 17 sentence credit has no effect on term of parole). 18 The court notes that an action which has been rendered moot could be saved if the 19 habeas petitioner shows that he will suffer “collateral consequences.” For example, a habeas 20 action where a petitioner challenges a criminal conviction is never rendered moot by release from 21 custody because it is presumed that the petitioner will suffer “collateral consequences,” such as 22 the inability to vote, as a result of the conviction. Spencer, 523 U.S. at 9-10. But, “collateral 23 consequences” from a prison disciplinary proceeding are not presumed, Wilson v. Terhune, 319 24 F.3d 477, 480 (9th Cir. 2003), and petitioner fails to allege that he will suffer any if the 2008 25 disciplinary finding is allowed to stand. 26 ///// 1 For all of the foregoing reasons, petitioner’s application for writ of habeas corpus 2 should be denied as moot. The court notes that respondents argue the petitioner’s claims are 3 time-barred as well. In light of the foregoing, the court need not address this argument. 4 Accordingly, IT IS HEREBY RECOMMENDED that: 5 1. Respondent’s August 15, 2011 motion to dismiss be granted; and 6 2. This action be dismissed. 7 These findings and recommendations are submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 9 one days after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” In his objections petitioner 12 may address whether a certificate of appealability should issue in the event he files an appeal of 13 the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district 14 court must issue or deny a certificate of appealability when it enters a final order adverse to the 15 applicant). Any reply to the objections shall be served and filed within fourteen days after 16 service of the objections. The parties are advised that failure to file objections within the 17 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 18 F.2d 1153 (9th Cir. 1991). 19 Dated: October 24, 2011 20 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 1 luu2630.157
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