Wright v. Dickinson
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 5/11/2011 RECOMMENDING that respondent's 10 motion to dismiss be granted; and this case be closed. Referred to Judge John A. Mendez; Objections due w/in 21 days. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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PATRICK WRIGHT,
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Petitioner,
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No. CIV S-10-2173 JAM KJN (TEMP) P
vs.
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KATHLEEN DICKINSON,
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Respondent.
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FINDINGS AND RECOMMENDATIONS
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Petitioner is a California prisoner proceeding without counsel, with an application
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for writ of habeas corpus under 28 U.S.C. § 2254. He challenges the result of a 2008 prison
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disciplinary proceeding where it was found that petitioner possessed a cellular phone. Petitioner
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is serving a sentence of life in prison with the possibility of parole and has served enough time in
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prison where he is now eligible for parole.
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Respondent has filed a motion to dismiss. Respondent asserts that a finding by
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this court that the result of the 2008 prison disciplinary proceedings is unconstitutional would not
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entitle petitioner to release or a reduction in the length of his sentence. Because the only relief
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that can be granted in a habeas action is release from custody or a reduction in the length of
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confinement, respondent asserts that this court does not have jurisdiction over petitioner’s
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claims.
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Petitioner counters that a reversal of the 2008 disciplinary findings would
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accelerate his prospects for parole. For the reasons set forth herein, the undersigned recommends
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that respondent’s motion to dismiss be granted
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In a habeas corpus action, the only relief the court may grant is release from
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custody, or a decrease in the duration of the length of incarceration. See 28 U.S.C. § 2254(a)
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(federal courts can only entertain petition for writ of habeas corpus from person in state custody
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on the ground that he or she is in custody in violation of federal law); Hill v. McDonough, 547
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U.S. 573, 579 (2006) (“Challenges to the validity of confinement or to particulars affecting its
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duration are the province of habeas corpus.”). The claims in petitioner’s habeas petition do not
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present a basis for the court ordering petitioner released. As for the duration of petitioner’s
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sentence, a finding that petitioner’s federal rights were violated during the 2008 disciplinary
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proceedings will not result in a specific amount of time being subtracted from petitioner’s
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sentence. However, such a finding may increase the possibility that petitioner will be paroled at
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his next hearing because the Board of Parole Hearings considers “all relevant” information in
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determining whether a prisoner is suitable for parole. Cal. Code Regs. tit 15, § 2402(b). What is
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impossible to say is whether the possibility will improve in any appreciable respect because there
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is very little information available in the record before the court as to whether, objectively
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speaking, petitioner would pose a current threat to public safety if released on parole; the ultimate
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question to be answered at any parole suitability proceeding. In re Lawrence, 44 Cal.4th 1181,
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1212 (2008).
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Under Article III, § 2 of the Constitution, all cases in this court must present a
case or controversy:
This case-or-controversy requirement subsists through all stages of
federal judicial proceedings . . . The parties must continue to have
a personal stake in the outcome of the lawsuit. [Quotations and
citations omitted.] This means that, throughout the litigation, the
plaintiff must have suffered, or be threatened with, an actual injury
traceable to the defendant and likely to be redressed by a favorable
judicial decision. [Quotations and citations omitted.]
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Spencer v. Kemna, 523 U.S. 1, 7 (1998). In Spencer, the Supreme Court found that a habeas
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petitioner’s challenge to a parole revocation did not satisfy the case or controversy requirement
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simply because the parole revocation could be used against petitioner at some future parole
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hearing. The court acknowledged that the parole revocation could in fact be used against
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petitioner at a subsequent parole proceeding but the parole revocation “is simply one factor
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among many, that may be considered by the parole authority” rendering the fact that petitioner
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would be denied parole based upon the revocation as a “possibility rather than a certainty or even
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a probability.” Id. at 14.
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At best, petitioner herein has argued that it is mere possibility that he will be
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denied parole at his next parole proceeding because of the 2008 prior disciplinary findings. In
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light of Spencer, this court does not have standing to hear petitioner’s challenge to the result of
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the 2008 disciplinary proceedings.
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Citing the Ninth Circuit’s opinion in Docken v. Chase, 393 F.3d. 1024, 1031 (9th
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Cir. 2004), for support, petitioner argues that the court has jurisdiction to hear petitioner’s claims
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as long as success in this action could affect the duration of petitioner’s confinement. Because
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Spencer is directly on point, the court need not distinguish Docken. Furthermore, the standard
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for standing in a habeas action suggested by petitioner is not consistent with the language of 28
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U.S.C. § 2254(a) which expressly limits this court’s consideration of habeas claims by state
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prisoners to those where custody is directly challenged.
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In accordance with the above, IT IS HEREBY RECOMMENDED that:
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1. Respondent’s December 10, 2010 motion to dismiss be granted; and
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2. This case be closed.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-
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one days after being served with these findings and recommendations, any party may file written
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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
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objections, he shall also address whether a certificate of appealability should issue and, if so, why
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and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if
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the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
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2253(c)(3). Any response to the objections shall be filed and served within fourteen days after
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service of the objections. The parties are advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951
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F.2d 1153 (9th Cir. 1991).
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DATED: May 11, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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wrig2173.57
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