(HC) Fond v. Diaz, No. 2:2020cv01145 - Document 21 (E.D. Cal. 2021)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 4/20/21 RECOMMENDING that respondent's motion to dismiss 12 be granted and petitioner's application for writ of habeas corpus be dismissed for lack of jurisdiction. Motion to Dismiss 12 referred to Judge Kimberly J. Mueller. Objections due within 21 days.(Plummer, M)
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(HC) Fond v. Diaz Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PHILLIP FOND, 12 No. 2:20-cv-1145 KJM AC P Petitioner, 13 v. 14 RALPH DIAZ, 15 FINDINGS & RECOMMENDATIONS Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Petitioner challenges his November 2, 2018 19 Rules Violation Report (RVR) at Mule Creek State Prison. Id. at 2, 11. Currently before the 20 court is respondent’s motion to dismiss. ECF No. 12. 21 I. 22 Background Petitioner was initially found guilty of conspiring to commit extortion and was assessed a 23 loss of 120 days of custody credit. ECF No. 1 at 12, 21. After appealing the decision, the finding 24 was reversed and ordered re-heard. Id. On re-hearing, petitioner was found guilty of “behavior 25 that could lead to violence,” but did not lose any credits as a result of the disciplinary decision. 26 Id. at 12-13, 21. He filed the instant federal habeas petition on June 4, 2020,1 challenging the 27 28 1 Since petitioner is a prisoner proceeding pro se, he is afforded the benefit of the prison mailbox (continued) 1 Dockets.Justia.com 1 disciplinary decision. Id. at 8-15. 2 II. 3 The Petition The petition presents four grounds for relief based upon various alleged due process 4 violations. Id. at 10-13. Petitioner further argues that his claims are reviewable even though he 5 did not lose any good-time credits, because the disciplinary decision affected his confinement and 6 suitability for parole and thereby entitles him to due process. Id. at 13-14. By way of relief, 7 petitioner seeks dismissal of the guilty finding and expungement of all references to the 8 disciplinary charge. Id. at 15. 9 III. 10 Motion to Dismiss Respondent moves to dismiss the petition on the ground that it fails to state a cognizable 11 federal habeas claim. ECF No. 12. Respondent contends that success on the merits would not 12 necessarily lead to speedier release from confinement because petitioner did not lose any good- 13 time credits for the challenged disciplinary decision, and that to the extent petitioner’s claims are 14 based on violations of state law, they are beyond the reach of federal habeas jurisdiction. Id. at 2- 15 3. 16 In his opposition, petitioner argues that his claims are cognizable in federal habeas 17 because expungement of the disciplinary conviction would advance his release from prison. ECF 18 No. 20 at 2-3. He contends that the Board of Parole Hearings relied upon the disciplinary charge 19 he challenges when it denied him parole on January 15, 2021. Id. at 5. Additionally, petitioner 20 argues that because a majority of his claims are based on violations of federal law, his claims fall 21 within the reach of federal habeas jurisdiction. Id. at 3. 22 23 24 25 26 27 IV. Discussion A. Necessarily Speedier Release A state prisoner may pursue habeas corpus relief under § 2254 “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. rule. Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing rule that a prisoner’s court document is deemed filed on the date the prisoner delivered the document to prison officials for mailing). 28 2 1 § 2254(a). A writ of habeas corpus is the appropriate federal remedy when “a state prisoner is 2 challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a 3 determination that he is entitled to immediate release or a speedier release from that 4 imprisonment.” Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). However, if success on the 5 merits of a petitioner’s challenged disciplinary proceeding would not necessarily impact the fact 6 or duration of his confinement, his claim does not fall within “the core of habeas corpus.” Nettles 7 v. Grounds, 830 F.3d 922, 934-35 (9th Cir. 2016) (en banc). Unless a state prisoner’s claim 8 “lie[s] at ‘the core of habeas corpus,’ it may not be brought in habeas corpus but must be brought, 9 ‘if at all,’ under § 1983.” Id. at 934 (internal citations omitted). 10 When a prisoner is indeterminately sentenced and has not yet been found suitable for 11 parole, success on the merits of the claim “would not necessarily lead to immediate or speedier 12 release because the expungement of the challenged disciplinary violation would not necessarily 13 lead to a grant of parole.” Id. at 934-35. This is “[b]ecause the parole board has the authority to 14 deny parole ‘on the basis of any of the grounds presently available to it,’ [therefore] the presence 15 of a disciplinary infraction does not compel the denial of parole, nor does an absence of an 16 infraction compel the grant of parole.” Id. at 935 (quoting Ramirez v. Galaza, 334 F.3d 850, 859 17 (9th Cir. 2003)). 18 In this case, petitioner is indeterminately sentenced, has not yet been found suitable for 19 parole, and is seeking expungement of a disciplinary charge that did not deprive him of good-time 20 credits.2 ECF No. 1 at 9. Petitioner’s claims do not fall within the “core of habeas corpus,” as 21 required to invoke this court’s federal habeas jurisdiction, because success on the claims would 22 not necessarily lead to his immediate or earlier release from prison. This would be true even if 23 petitioner had lost good-time credits, because he is indeterminately sentenced and has not been 24 25 26 27 28 2 Petitioner argues that he was entitled to due process protections with regard to his disciplinary because the disciplinary resulted petitioner being sent to a segregated housing unit for ninety days and interfered with his parole, which created an “atypical and significant hardship.” ECF No. 1 at 13-14. Even if the court assumes that the conditions created an atypical and significant hardship, it would not change the fact that there is no federal habeas jurisdiction because success on the merits would not necessarily spell speedier release. 3 1 found suitable for parole. Either way, the parole board could find him unsuitable for parole 2 without regard to the disciplinary violation. 3 In his opposition, petitioner argues the disciplinary conviction prevents a favorable 4 suitability finding, and therefore he would be released earlier from prison if the disciplinary is 5 expunged. ECF No. 20 at 4-6. However, rules violations are merely one factor a parole board 6 must consider when determining whether a prisoner is a current threat to public safety and is 7 therefore suitable for parole. Nettles, 830 F.3d at 935. As such, rules violations are not 8 determinative of a suitability finding, and expungement of a violation therefore cannot be said to 9 necessarily spell earlier release from prison. Id. In other words, even if petitioner succeeded in 10 expunging the disciplinary, the board could still deny parole on other grounds. Accordingly, 11 although petitioner argues that he will be released from prison faster if his relief is granted, that 12 assertion is entirely speculative and expungement of the disciplinary is not guaranteed to 13 accelerate his eligibility for parole. Accordingly, petitioner’s claims are not cognizable in habeas 14 and should be dismissed. 15 B. Violations of State Law 16 Insofar as petitioner’s claims are based on alleged violations of the California Code of 17 Regulations and other state law, the claims are not cognizable in federal habeas and should also 18 be dismissed on that ground. Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (habeas 19 relief “is unavailable for alleged error in the interpretation or application of state law” (citation 20 omitted)). 21 V. 22 23 24 Conclusion The petition does not state any cognizable habeas claims and respondent’s motion to dismiss should be granted. Accordingly, IT IS HEREBY RECOMMENDED that respondent’s motion to dismiss, 25 ECF No. 12, be GRANTED and petitioner’s application for writ of habeas corpus be 26 DISMISSED for lack of jurisdiction. 27 28 These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 4 1 after being served with these findings and recommendations, any party may file written 2 objections with the court and serve a copy on all parties. Such a document should be captioned 3 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 4 objections shall be filed and served within fourteen days after service of the objections. The 5 parties are advised that failure to file objections within the specified time may waive the right to 6 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 7 If petitioner files objections, he may also address whether a certificate of appealability 8 should issue and, if so, why and as to which issues. Pursuant to Rule 11 of the Federal Rules 9 Governing Section 2254 Cases, this court must issue or deny a certificate of appealability when it 10 enters a final order adverse to the applicant. A certificate of appealability may issue only “if the 11 applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 12 § 2253(c)(2). 13 DATED: April 20, 2021 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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