Luu v. Sisto et al

Filing 18

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)

(HC) Luu v. Sisto et al

Doc. 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I. Introduction Petitioner is a former state prisoner, presently on parole, proceeding without counsel and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges two prison disciplinary decisions relating to the search of his cell, claiming violations of his Fifth Amendment and due process rights. On March 24, 2008, while petitioner was incarcerated at California State Prison Solano, he was issued a rules violation report for being in possession of tobacco, log number S108-02-0755. (Dkt. No. 1 at 7.) On March 14, 2008, a prison disciplinary hearing was conducted and petitioner was found guilty of the rules violation. (Id.) Petitioner was assessed thirty-days loss of work-time credits. 1
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA QUOC XUONG LUU, Petitioner, vs. D.K. SISTO, et al., Respondents. / ORDER AND FINDINGS AND RECOMMENDATIONS No. 2:09-cv-3404 JAM KJN P

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In the instant proceeding, petitioner claims that the prison disciplinary hearing violated his Fifth and Fourteenth Amendment rights. Specifically, he presents three grounds for the granting of habeas relief: (1) petitioner's fifth amendment right was violated by two prison disciplinary decisions relating to one search of his cell;1 (2) petitioner's due process rights were violated when he was not given a final copy of the Rules Violation Report within five working days as required by California Code of Regulations, title 15, § 3320(l); and (3) petitioner was denied procedural safeguards when he was not provided an investigative employee as required by California Code of Regulations, title 15, § 3315(d)(1)(A) in violation of the Fourteenth Amendment. Petitioner seeks dismissal and expungement of his prison disciplinary conviction and restoration of the thirty days loss of work-time credits. Because petitioner was on parole at the time he filed the instant petition, petitioner seeks credit of the thirty days toward his period of parole supervision. (Dkt. No. 1 at 53.) II. Analysis 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. "A case becomes moot when `it no longer present[s] a case or controversy under Article III, § 2, of the Constitution.'" Wilson v. Terhune, 319 F.3d 477, 479 (9th Cir. 2003) (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)). A federal habeas petition challenging an underlying criminal conviction is never rendered moot by the petitioner's release from custody when after its filing so long as there are collateral consequences that flow from the criminal conviction. Wilson, 319 F.3d at 479 (citation omitted). However, "the presumption of collateral consequences does not apply to prison disciplinary proceedings." Wilson, 319 F.3d at 480. In Wilson, the federal habeas petition was filed after the disciplinary action had been either 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
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withdrawn or completed. Id., 319 F.3d at 479. The Ninth Circuit concluded that the petitioner had failed to allege any collateral consequences stemming from his prison disciplinary conviction sufficient to meet the case-or-controversy requirement. Id., 319 F.3d at 481-82. Similarly, here, petitioner filed his federal habeas petition after the prison disciplinary action was completed. See also Nonnette v. Small, 316 F.3d 872, 875-76 (9th Cir. 2002) (holding that a habeas challenge to a loss of good time credits is rendered moot by one's release from custody where the discipline had no collateral consequences that followed release); Garrett v. Marshall, 2009 WL 3417786, *2 (C.D. Cal. Oct. 20, 2009) (habeas application challenging prison disciplinary conviction and loss of good time rendered moot by petitioner's release on parole); Washington v. Scribner, 2008 WL 2523247, at *2 (E.D. Cal. June 20, 2008) (When sentence expires and inmate subsequently released on parole, claims regarding the restoration of good-time credits lost at a disciplinary hearing become moot because that issue has no bearing on the length of parole term.); Tsehai v. Schwartz, 2007 WL 1087058, at *1 (E.D. Cal. Apr. 10, 2007) (federal habeas petition challenging a prison disciplinary conviction and forfeiture of time credits rendered moot by petitioner's release on parole). Moreover, it is mere speculation to assume that petitioner would have been released from prison earlier on parole, if not for the challenged prison disciplinary conviction. As the Ninth Circuit reasoned in Wilson, "the decision to grant parole is discretionary" and "`the importance attached to any circumstance . . . is left to the judgment of the [parole] panel.'" Wilson, 319 F.3d at 482 (citing Cal. Code of Regs. tit. 15, § 2402(c)). Therefore, "the likelihood of delayed or denied parole is a type of nonstatutory consequence dependent on discretionary decisions that is insufficient to apply the presumption of collateral consequences." Id. at 481; Norman v. Salazar, 2010 WL 2197541, at *2 (C.D. Cal. Jan. 26, 2010) ("Although a disciplinary conviction may not help an inmate who is seeking release on parole, it is only one of a `myriad of considerations' relevant to a parole decision and does not inevitably affect the length of the prisoner's sentence); Gayles v. Sisto, 2010 WL 231382, at *2 (E.D. Cal. Jan. 13, 2010) ("[T]he 3

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potential use of the 115 in future parole proceedings is too speculative to be considered a collateral consequence . . . ."); James v. Castellaws, 2008 WL 4058477, at *1 (N.D. Cal. Aug. 28, 2008) (habeas action challenging disciplinary action and loss of good time credit was moot because the punishment imposed had expired and allegations that the rules violation finding may result in a delay or denial of parole were too speculative to constitute sufficient proof of collateral consequences). Because petitioner has been released on parole, this court cannot grant any meaningful relief to petitioner. Therefore, this action should be dismissed as moot. In light of the above, petitioner's motion for evidentiary hearing should be denied. III. Conclusion Accordingly, IT IS HEREBY ORDERED that petitioner's May 18, 2010 motion for an evidentiary hearing (dkt. no. 14) is denied without prejudice; and IT IS HEREBY RECOMMENDED that this action be dismissed as moot. 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 twentyone days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." If petitioner files objections, he shall also address whether a certificate of appealability should issue and, if so, why and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the //// //// //// 4

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specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: November 3, 2010

_____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
luu3494.moot

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