-EFB (HC) Luu v. Institution Classification Committee et al, No. 2:2009cv00338 - Document 30 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 02/08/11 recommending that petitioner's ex parte motion for summary judgment 19 be denied. Petitioner's motion to renew ex parte motion for summary judgment 22 be denied. Respondents' motion to dismiss 21 be granted. The clerk be directed to close the case. MOTIONS 19 , 21 , 22 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)
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-EFB (HC) Luu v. Institution Classification Committee et al Doc. 30 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 No. CIV S-09-0338 KJM EFB P vs. 13 D.K. SISTO, Warden, et al., 14 Respondents. FINDINGS AND RECOMMENDATIONS / 15 Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas 16 17 corpus. See 28 U.S.C. § 2254. Respondents move to dismiss on the grounds that his claims are 18 not cognizable on federal habeas review. See Dckt. No. 21. Petitioner has filed an opposition, 19 see Dckt. No. 28, and has also filed an “ex parte motion for summary judgment.” Dckt. Nos. 19, 20 22. Petitioner alleges he was placed in the administrative segregation unit of his prison in 21 22 violation of his federal due process rights. He contends that prison officials failed to mitigate his 23 security housing unit (SHU) term, and improperly interpreted the state regulations regarding the 24 term. See Pet., Dckt. No. 1 at 1-3. Petitioner has now been released from prison on parole. See 25 Resps.’ Mot. to Dism. at 2, Pet’r’s Opp’n at 1. 26 //// 1 Dockets.Justia.com 1 Respondents argue that because petitioner has served his SHU term and has been 2 released from prison, his claim is not cognizable on federal habeas review. Petitioner responds 3 that because he is still on parole, he is still in state custody and his claims are therefore 4 cognizable. For the following reasons, the undersigned recommends that the petition be 5 dismissed as moot. 6 A case is moot when it no longer presents a case or controversy. Wilson v. Terhune, 319 7 F.3d 477, 479 (9th Cir. 2003). A habeas petition challenging an underlying conviction is not 8 always moot simply because, subsequent to its filing, petitioner has been released from custody. 9 Id. But such a suit is moot unless some collateral consequence of conviction exists. Id. There is 10 no presumption of collateral consequences due to prison disciplinary proceedings. Id. at 480. 11 See also Nonnette v. Small, 316 F.3d 872, 875-76 (9th Cir. 2002) (holding that a habeas 12 challenge to a loss of good time credits is rendered moot by one’s release from custody where 13 the discipline had no collateral consequences that followed release). 14 In Wilson, the petitioner argued in part that due to the rules violation report, he would be 15 less likely to be paroled. Id. at 481. The Ninth Circuit held that, as petitioner did not deny the 16 misconduct upon which the disciplinary proceedings were based, and the parole board would 17 consider the underlying conduct rather than to the rules violation report itself, the petitioner had 18 failed to allege any collateral consequences stemming from his prison disciplinary conviction 19 sufficient to meet the case-or-controversy requirement. Id. at 481-82. 20 Similarly, petitioner in this case has failed to allege any collateral consequences 21 stemming from the prison disciplinary proceedings. He has not denied the underlying 22 misconduct. Although petitioner states that he is still in state custody because he is on parole, 23 this is not a collateral consequence of the prison disciplinary proceedings because the parole 24 board would consider the underlying misconduct rather than merely the outcome of the 25 disciplinary proceedings. Moreover, the court cannot engage in the speculation that petitioner 26 might have been granted parole sooner had the disciplinary proceedings gone differently. As 2 1 noted in Wilson, “the importance attached to any circumstance...is left to the judgment of the 2 [parole] panel.” 319 F.3d at 482. Thus, the court cannot afford any relief to plaintiff, and the 3 case is moot. 4 5 Petitioner has also filed a motion for summary judgment. As the case should be dismissed, the motion should be denied. 6 Accordingly, it hereby is RECOMMENDED that: 7 1. Petitioner’s “ex parte motion for summary judgment” be denied; 8 2. Petitioner’s “motion to renew ex parte motion for summary judgment” be denied; 9 3. Respondents’ motion to dismiss be granted; and 10 4. The Clerk be directed to close the case. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 13 after being served with these findings and recommendations, any party may file written 14 objections with the court and serve a copy on all parties. Such a document should be captioned 15 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 16 within the specified time may waive the right to appeal the District Court’s order. Turner v. 17 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In 18 his objections petitioner may address whether a certificate of appealability should issue in the 19 event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 20 Section 2254 Cases (the district court must issue or deny a certificate of appealability when it 21 enters a final order adverse to the applicant). 22 DATED: February 8, 2011. 23 24 25 26 3
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