(HC) Tyson v. MacComber, No. 2:2016cv02494 - Document 11 (E.D. Cal. 2017)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 6/19/2017 RECOMMENDING respondent's 8 motion to dismiss be granted. Referred to Judge John A. Mendez; Objections to F&R due within 21 days.(Yin, K)
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(HC) Tyson v. MacComber Doc. 11 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TIMMY RAY TYSON, SR., 12 Petitioner, 13 14 v. No. 2:16-cv-2494 JAM AC P FINDINGS AND RECOMMENDATIONS JEFF MACCOMBER, 15 Respondent. 16 17 Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 18 28 U.S.C. § 2254. Now pending before the court is respondent’s motion to dismiss (ECF No. 8) 19 which argues that the petition fails to state a cognizable federal habeas claim. Petitioner has 20 responded to the motion (ECF No. 9) and respondent has filed a reply (ECF No. 10). After 21 review of the pleadings, the court recommends that respondent’s motion be granted. 22 23 I. Background Petitioner was assessed a thirty day loss of credit on June 13, 2015 for disrespecting 24 prison staff. ECF No. 1 at 1. He filed a petition for writ of habeas corpus in the Sacramento 25 County Superior Court in which he argued that staff should have given him a verbal warning in 26 lieu of a loss of credit. Id. at 28. The superior court rejected petitioner’s claims in a reasoned 27 decision. Id. at 28-31. Petitioner then raised this claim in the state court of appeal and the 28 California Supreme Court, both of which summarily denied his petition. Id. at 33, 36. 1 Dockets.Justia.com 1 The federal petition raises two claims. First, petitioner argues that the prison hearing 2 officer erroneously assessed a loss of credit penalty for a “lesser included offense” after finding 3 him innocent of threatening a peace officer. Id. at 4. He claims that the appropriate penalty for 4 the offense of which he was found guilty – disrespecting staff – was a verbal warning. Id. 5 Second, petitioner argues that his disciplinary finding for disrespecting staff was not supported by 6 sufficient evidence. Id. at 6. 7 II. 8 Applicable Legal Standards In the context of federal habeas claims, a motion to dismiss is construed as arising under 9 rule 4 of the Rules Governing Section 2254 in the United States District Courts which “explicitly 10 allows a district court to dismiss summarily the petition on the merits when no claim for relief is 11 stated.” O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (quoting Gutierrez v. Griggs, 12 695 F.2d 1195, 1198 (9th Cir. 1983)). Accordingly, a respondent is permitted to file a motion to 13 dismiss after the court orders a response, and the court should use Rule 4 standards in reviewing 14 the motion. See Hillery v. Pulley, 533 F. Supp. 1189, 1194 & n. 12 (E.D. Cal. 1982). Rule 4 15 specifically provides that a district court may dismiss a petition if it “plainly appears from the 16 face of the petition and any exhibits annexed to it that petitioner is not entitled to relief in the 17 district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. The court may, however, 18 take judicial notice of court records and does so here. See Porter v. Ollison, 620 F.3d 952, 954-55 19 (9th Cir. 2010). 20 21 III. Analysis In Nettles v. Grounds, the Ninth Circuit held that federal habeas relief is only available to 22 a prisoner if his claim lies at the core of habeas corpus – that is, if success on his claim would 23 “necessarily lead to . . . immediate or earlier release from confinement.” 830 F.3d 922, 930-31, 24 935 (9th Cir. 2016). In Nettles, the appellate court concluded that the petitioner, who was an 25 inmate serving a determinate term of twelve years and a life term with the possibility of parole, 26 would not necessarily be entitled to a speedier release if his challenged disciplinary violation 27 were expunged. Id. at 925, 934-35. This was because the disciplinary violation was merely one 28 factor which the parole board could consider in deciding whether to grant parole. Id. at 935. 2 1 The present petition is foreclosed by Nettles. Petitioner is serving an indeterminate 2 sentence of twenty-five years to life. ECF No. 8 at 6. Thus, like the petitioner in Nettles, he does 3 not have a fixed release date and will be released only if and when the parole board determines he 4 is suitable for parole. Cal. Penal Code § 3041; Cal. Code Regs. Tit. 15, § 2402. Expungement of 5 his disciplinary violation would not necessarily lead to his speedier or immediate release. In his 6 response, petitioner argues that “[o]ne of the main factors” by which parole suitability is 7 determined is an inmate’s disciplinary record. ECF No. 9 at 2. This is undoubtedly true, but it 8 cannot be said that he would necessarily be paroled (or necessarily be granted quicker parole) if 9 his conviction were expunged. Success in this petition would merely increase petitioner’s 10 chances of parole. Nettles explicitly noted that its adoption of the “core of habeas” standard was 11 partially motivated by a desire to sidestep the sort of probability analysis which previously 12 required courts to “guess at the discretionary decisions of state officials in order to determine 13 whether an action sounds in habeas . . . .” 830 F.3d at 934. 14 IV. 15 16 Conclusion Accordingly, it is RECOMMENDED that respondent’s motion to dismiss (ECF No. 8) be granted. 17 These findings and recommendations are submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty one days 19 after being served with these findings and recommendations, any party may file written 20 objections with the court and serve a copy on all parties. Such a document should be captioned 21 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 22 within the specified time may waive the right to appeal the District Court’s order. Turner v. 23 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In 24 his objections petitioner may address whether a certificate of appealability should issue in the 25 event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 26 //// 27 //// 28 //// 3 1 § 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a 2 final order adverse to the applicant). 3 DATED: June 19, 2017 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4