(HC) Luu v. Sisto et al, No. 2:2009cv03404 - Document 18 (E.D. Cal. 2010)

Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 11/3/2010 ORDERING that ptnr's 14 motion for evidentiary hearing is DENIED w/out prejudice; and RECOMMENDING that this action be dismissed as moot.. Referred to Judge John A. Mendez; Objections due w/in 21 days.(Yin, K)
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(HC) Luu v. Sisto et al Doc. 18 1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE EASTERN DISTRICT OF CALIFORNIA 11 QUOC XUONG LUU, 12 Petitioner, 13 vs. 14 No. 2:09-cv-3404 JAM KJN P D.K. SISTO, et al., 15 Respondents. 16 17 18 ORDER AND FINDINGS AND RECOMMENDATIONS / I. Introduction Petitioner is a former state prisoner, presently on parole, proceeding without 19 counsel and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. 20 § 2254. Petitioner challenges two prison disciplinary decisions relating to the search of his cell, 21 claiming violations of his Fifth Amendment and due process rights. 22 On March 24, 2008, while petitioner was incarcerated at California State Prison - 23 Solano, he was issued a rules violation report for being in possession of tobacco, log number S1- 24 08-02-0755. (Dkt. No. 1 at 7.) On March 14, 2008, a prison disciplinary hearing was conducted 25 and petitioner was found guilty of the rules violation. (Id.) Petitioner was assessed thirty-days 26 loss of work-time credits. 1 Dockets.Justia.com 1 In the instant proceeding, petitioner claims that the prison disciplinary hearing 2 violated his Fifth and Fourteenth Amendment rights. Specifically, he presents three grounds for 3 the granting of habeas relief: (1) petitioner’s fifth amendment right was violated by two prison 4 disciplinary decisions relating to one search of his cell;1 (2) petitioner’s due process rights were 5 violated when he was not given a final copy of the Rules Violation Report within five working 6 days as required by California Code of Regulations, title 15, § 3320(l); and (3) petitioner was 7 denied procedural safeguards when he was not provided an investigative employee as required by 8 California Code of Regulations, title 15, § 3315(d)(1)(A) in violation of the Fourteenth 9 Amendment. Petitioner seeks dismissal and expungement of his prison disciplinary conviction 10 and restoration of the thirty days loss of work-time credits. Because petitioner was on parole at 11 the time he filed the instant petition, petitioner seeks credit of the thirty days toward his period of 12 parole supervision. (Dkt. No. 1 at 53.) 13 II. Analysis 14 15 As indicated above, petitioner filed his petition for a writ of habeas corpus after he was released on parole. Accordingly, the court must determine whether this action is moot. 16 “A case becomes moot when ‘it no longer present[s] a case or controversy under 17 Article III, § 2, of the Constitution.’” Wilson v. Terhune, 319 F.3d 477, 479 (9th Cir. 2003) 18 (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)). A federal habeas petition challenging an 19 underlying criminal conviction is never rendered moot by the petitioner’s release from custody 20 when after its filing so long as there are collateral consequences that flow from the criminal 21 conviction. Wilson, 319 F.3d at 479 (citation omitted). However, “the presumption of collateral 22 consequences does not apply to prison disciplinary proceedings.” Wilson, 319 F.3d at 480. In 23 Wilson, the federal habeas petition was filed after the disciplinary action had been either 24 1 25 26 Petitioner’s challenge to prison disciplinary log number S1-08-02-0754, filed in Case No. 2:09-cv-2732 WBS DAD P, was dismissed as moot on September 1, 2010. (Dkt. No. 12.) A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 2 1 withdrawn or completed. Id., 319 F.3d at 479. The Ninth Circuit concluded that the petitioner 2 had failed to allege any collateral consequences stemming from his prison disciplinary conviction 3 sufficient to meet the case-or-controversy requirement. Id., 319 F.3d at 481-82. 4 Similarly, here, petitioner filed his federal habeas petition after the prison 5 disciplinary action was completed. See also Nonnette v. Small, 316 F.3d 872, 875-76 (9th Cir. 6 2002) (holding that a habeas challenge to a loss of good time credits is rendered moot by one’s 7 release from custody where the discipline had no collateral consequences that followed release); 8 Garrett v. Marshall, 2009 WL 3417786, *2 (C.D. Cal. Oct. 20, 2009) (habeas application 9 challenging prison disciplinary conviction and loss of good time rendered moot by petitioner’s 10 release on parole); Washington v. Scribner, 2008 WL 2523247, at *2 (E.D. Cal. June 20, 2008) 11 (When sentence expires and inmate subsequently released on parole, claims regarding the 12 restoration of good-time credits lost at a disciplinary hearing become moot because that issue has 13 no bearing on the length of parole term.); Tsehai v. Schwartz, 2007 WL 1087058, at *1 (E.D. 14 Cal. Apr. 10, 2007) (federal habeas petition challenging a prison disciplinary conviction and 15 forfeiture of time credits rendered moot by petitioner’s release on parole). 16 Moreover, it is mere speculation to assume that petitioner would have been 17 released from prison earlier on parole, if not for the challenged prison disciplinary conviction. 18 As the Ninth Circuit reasoned in Wilson, “the decision to grant parole is discretionary” and “‘the 19 importance attached to any circumstance . . . is left to the judgment of the [parole] panel.’” 20 Wilson, 319 F.3d at 482 (citing Cal. Code of Regs. tit. 15, § 2402(c)). Therefore, “the likelihood 21 of delayed or denied parole is a type of nonstatutory consequence dependent on discretionary 22 decisions that is insufficient to apply the presumption of collateral consequences.” Id. at 481; 23 Norman v. Salazar, 2010 WL 2197541, at *2 (C.D. Cal. Jan. 26, 2010) (“Although a disciplinary 24 conviction may not help an inmate who is seeking release on parole, it is only one of a ‘myriad of 25 considerations’ relevant to a parole decision and does not inevitably affect the length of the 26 prisoner’s sentence); Gayles v. Sisto, 2010 WL 231382, at *2 (E.D. Cal. Jan. 13, 2010) (“[T]he 3 1 potential use of the 115 in future parole proceedings is too speculative to be considered a 2 collateral consequence . . . .”); James v. Castellaws, 2008 WL 4058477, at *1 (N.D. Cal. Aug. 3 28, 2008) (habeas action challenging disciplinary action and loss of good time credit was moot 4 because the punishment imposed had expired and allegations that the rules violation finding may 5 result in a delay or denial of parole were too speculative to constitute sufficient proof of collateral 6 consequences). 7 8 Because petitioner has been released on parole, this court cannot grant any meaningful relief to petitioner. Therefore, this action should be dismissed as moot. 9 10 In light of the above, petitioner’s motion for evidentiary hearing should be denied. III. Conclusion 11 12 Accordingly, IT IS HEREBY ORDERED that petitioner’s May 18, 2010 motion for an evidentiary hearing (dkt. no. 14) is denied without prejudice; and 13 IT IS HEREBY RECOMMENDED that this action be dismissed as moot. 14 These findings and recommendations are submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 16 one days after being served with these findings and recommendations, any party may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files 19 objections, he shall also address whether a certificate of appealability should issue and, if so, why 20 and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if 21 the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 22 § 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after 23 service of the objections. The parties are advised that failure to file objections within the 24 //// 25 //// 26 //// 4 1 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 2 F.2d 1153 (9th Cir. 1991). 3 DATED: November 3, 2010 4 5 6 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 7 8 luu3494.moot 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5