(HC) Sarmiento v. Rackley, No. 2:2015cv00364 - Document 16 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 09/02/15 recommending that respondent's motion to dismiss 11 be granted. MOTION to DISMISS 11 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAMUEL SARMIENTO, 12 13 14 No. 2:15-cv-0364 KJM CKD P Petitioner, v. FINDINGS AND RECOMMENDATIONS RONALD RACKLEY, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. (ECF No. 1 (“Ptn.”).) Petitioner challenges an August 2013 19 disciplinary conviction for possession of dangerous contraband (a cell phone and charger), for 20 which he was assessed a 90-day credit loss. (See id. at 45-48.) All other claims having been 21 dismissed, this action proceeds on the sole claim that the disciplinary conviction was not 22 supported by “some evidence,” violating petitioner’s Constitutional right to due process. (ECF 23 Nos. 6 & 12.) 24 Before the court is respondent’s motion to dismiss the petition – i.e., the remaining claim. 25 (ECF No. 11.) Respondent argues that petitioner’s claim is not cognizable in federal habeas. 26 Alternatively, he argues that petitioner failed to exhaust state remedies and procedurally defaulted 27 on his claim. (Id.) Petitioner has filed an opposition, and respondent has filed a reply. (ECF 28 Nos. 14 & 15.) For the reasons set forth below, the undersigned will recommend that 1 1 respondent’s motion be granted. 2 FACTUAL AND PROCEDURAL HISTORY 3 Petitioner is serving an indeterminate prison term of sixteen years to life. (ECF No. 11-1, 4 Ex. 1.) He does not have a fixed release date, but will be released from prison when the parole 5 board determines that he is suitable for parole. Cal. Penal Code § 3041; Cal. Code Regs. Tit. 15, 6 § 2402. Petitioner reached his minimum eligible parole date (MEPD) on September 29, 1997. 7 (ECF No. 11-3 at 64, Ex. 5.) On September 11, 2012, the California Board of Parole Hearings 8 (“Board”) denied him parole consideration for three years. (Id. at 63.) 9 10 On August 24, 2013, petitioner sustained the disciplinary conviction challenged in this action and was assessed a 90-day loss of custody credits. (Ptn. at 45-48.) 11 He filed a petition in the Sacramento County Superior Court challenging the 2013 12 conviction on five grounds. (ECF No. 11-1, Ex. 2.) The superior court denied the petition, 13 finding that petitioner failed to exhaust administrative remedies as to any of his claims. (Id.) 14 Petitioner next filed a petition challenging his 2013 conviction in the California Supreme Court, 15 which summarily denied the petition on December 10, 2014. (ECF No. 11-3, Ex. 4.) 16 Petitioner filed the instant federal habeas petition on February 12, 2015. (Ptn.) 17 ANALYSIS 18 This court may entertain a petition for writ of habeas corpus “in behalf of a person in 19 custody pursuant to the judgment of a State court only on the ground that he is in custody in 20 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The 21 Ninth Circuit recently clarified when a prison disciplinary challenge could be brought in a habeas 22 action. 23 In Nettles v. Grounds, 788 F.3d 992, 1001 (9th Cir. 2015), the court held that habeas 24 jurisdiction extends to claims involving prison disciplinary convictions only if petitioner’s 25 success on the claim “would ‘necessarily spell speedier release’ from custody,” which “would 26 include termination of custody, acceleration of future date of release from custody, or reduction 27 of the level of custody.” See Skinner v. Switzer, 562 U.S. 521, 533–34 (2011). Applying 28 Skinner, the Nettles court held that the district court lacked jurisdiction over the discipline-related 2 1 claim of a California inmate serving an indeterminate life sentence who had passed his MEPD 2 and not yet been found suitable for parole. Under these circumstances, neither expungement of 3 the disciplinary finding nor restoration of lost good-time credits would “necessarily” accelerate 4 his release. Nettles, 788 F.3d at 1004. Thus, the petitioner’s claim was not cognizable in federal 5 habeas. Id. 6 Here, even if petitioner’s 2013 disciplinary conviction were expunged due to lack of 7 evidence, and his 90 days of custody credits restored, it would not “necessarily spell speedier 8 release” under Nettles. E.g., Hardney v. Virga, 2015 WL 3648697, *3 (E.D. Cal. June 10, 2015) 9 (recommending dismissal of habeas petition from life inmate challenging a loss of credits, per 10 11 12 13 14 Nettles) (findings and recommendations adopted by district court August 10, 2015). Because this court lacks jurisdiction over petitioner’s remaining claim, it need not reach respondent’s alternative arguments for dismissal. Accordingly, IT IS HEREBY RECOMMENDED that respondent’s motion to dismiss (ECF No. 11) be granted. 15 These findings and recommendations are submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 17 after being served with these findings and recommendations, any party may file written 18 objections with the court and serve a copy on all parties. Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 20 objections shall be served and filed within fourteen days after service of the objections. The 21 parties are advised that failure to file objections within the specified time waives the right to 22 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 Dated: September 2, 2015 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 24 25 26 27 2/ sarm0364.mtd_fr 28 3

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