Walker v. Hill
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 10/16/2012 RECOMMENDING that respondent's 10 motion to dismiss be granted. Referred to Judge Garland E. Burrell, Jr.; Objections due within 14 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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DENNIS WALKER,
Petitioner,
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No. 2:12-cv-1601 GEB JFM P
Respondent.
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FINDINGS & RECOMMENDATIONS
vs.
R. HILL,
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Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court on respondent’s
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motion to dismiss. Petitioner opposes the motion. Upon review of the motion, the documents in
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support and opposition, and good cause appearing therefor, THE COURT FINDS AS
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FOLLOWS:
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RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
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Petitioner is presently serving an indeterminate life sentence with the possibility
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of parole for a 1992 conviction on two counts of first degree murder. Resp.’s Mot. to Dismiss
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(“MTD), Ex. 1.
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On August 25, 2009, petitioner participated in a parole suitability hearing, which
resulted in a finding of unsuitability based on petitioner’s failure to participate in vocational or
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academic activity, his poor work performance, his lack of participation in self-help or group
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activities, and his lack of participation in substance abuse or anger management programs. Pet.,
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Ex. H. The parole board also cited petitioner’s failure to cooperate in the completion of a new
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psych report and his inability to stay free of prison disciplinary violations. Id. At the time of the
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hearing, petitioner was found guilty of seven serious prison disciplinary violations and three
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violations that required counseling. Id. The board noted that there were no laudatory notes
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during that review period. Id.
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In the petition filed in this court on June 14, 2012, petitioner seeks relief from a
November 2010 disciplinary conviction for possession of a cell phone charger that resulted in the
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addition of eight points to petitioner’s classification score. Because of this eight-point
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assessment, petitioner claims he is now being housed in a Level 4 Institution that is more violent
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than his previous housing facility, has fewer available programs for personal progress, and
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receives much less positive consideration for parole suitability. Petitioner was not assessed any
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loss of credits, but he was counseled and warned.
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On April 7, 2011, petitioner was found guilty for a December 2010 battery on an
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inmate with a weapon, resulting in disfigurement. MTD, Ex. 2. For that violation, petitioner
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was assessed 360 days loss of good time credits. Id.
DISCUSSION
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In the pending motion to dismiss, respondent seeks dismissal of this action on the
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ground that petitioner’s claim for expungement of the disciplinary violation is not cognizable
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here. Respondent also argues that even if expungement of the minor disciplinary violation
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would accelerate petitioner’s eligibility for parole, petitioner later committed a more serious
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rules violation.
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“‘Federal law opens two main avenues to relief on complaints related to
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imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil
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Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983.’” Hill v. McDonough,
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547 U.S. 573, 579 (2006) (quoting Muhammad v. Close, 540 U.S. 749, 750 (2004)).
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“‘Challenges to the validity of any confinement or to particulars affecting its duration are the
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province of habeas corpus,’ “ whereas “challenge[s] to the circumstances of [ ] confinement ...
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may be brought under § 1983.” Id.
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“[H]abeas jurisdiction is absent, and a § 1983 action proper, where a successful
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challenge to a prison condition will not necessarily shorten the prisoner’s sentence.” Ramirez v.
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Galaza, 334 F.3d 850, 859 (9th Cir. 2003). Put another way, it is “the likelihood of the effect on
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the overall length of the prisoner's sentence ... [that] determines the availability of habeas
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corpus.” Docken v. Chase, 393 F.3d 1024, 1028 (9th Cir. 2004) (emphasis in original) (internal
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quotation and citation omitted). In some instances, for example, “[t]he presence of a prison
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disciplinary conviction can [ ] diminish the chance that an inmate will be granted a parole date.”
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See Hardney v. Carey, 2011 WL 1302147, at *6 (E.D. Cal. 2011).
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Petitioner’s disciplinary violation is the type of relevant information that parole
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boards consider. Expungement of petitioner’s prison disciplinary violation, if warranted, could
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affect the duration of his confinement by making it more likely that he would be granted parole.
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See, e.g., Martin v. Tilton, 2011 WL 1624989, at *1 (9th Cir. 2011) (“Even though Martin did
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not forfeit any work-time credits as a result of the disciplinary finding, we have jurisdiction
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because the Board of Parole will consider the charge when it evaluates Martin's eligibility for
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parole.”); Cleveland v. Curry, 2010 WL 4595186, at *2 (N.D. Cal. Nov.5, 2010) (claim seeking
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expungement of serious disciplinary violation cognizable on habeas review, even though
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thirty-day credit loss had no effect on sentence, because expungement was likely to accelerate
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prisoner’s eligibility for parole); Murphy v. Department of Corrections and Rehabilitation, 2008
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WL 111226, at *7 (N.D. Cal. Jan. 9, 2008) (action seeking expungement of serious disciplinary
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conviction cognizable on habeas review because expungement could affect the duration of the
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petitioner's confinement by making it more likely that he would be granted parole); Dutra v.
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Department of Corrections and Rehabilitation, 2007 WL 3306638, at *6 (N.D. Cal. Nov. 6,
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2007) (claim seeking expungement of disciplinary conviction cognizable on habeas review
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because “convictions secured for disciplinary violations in such a proceeding may be a factor in
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an inmate's parole consideration hearing”).
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The undersigned thus finds that petitioner has stated a federal claim. The
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disciplinary finding for possession of contraband is “criminal misconduct which is reliably
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documented.” Cal. Code Regs. tit. 15 § 2402(b). The parole board is required to consider the
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violation because it reflects on petitioner's behavior “after the crime.” Id. Indeed, at petitioner’s
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2009 parole board hearing, petitioner’s prior disciplinary convictions were cited as one reason
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for finding petitioner unsuitable for parole. Thus, it is at least ‘likely’ that expungement of the
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disciplinary finding could accelerate petitioner’s eligibility for parole.
Respondent next argues that, even if petitioner succeeded in stating a federal
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claim, the petition should nonetheless be dismissed because his parole suitability would not be
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affected in light of his later, more serious rules violation resulting from petitioner’s act of cutting
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and disfiguring another inmate and for which he was assessed 360 days loss of good time credits.
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Respondent’s point is well-taken. Even if petitioner were to prevail on his claims in this case, it
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appears highly unlikely that the fact or duration of his confinement would be affected. Thus,
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based on the record in this case, the undersigned finds that expungement or reversal of the minor
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conviction at issue here is not likely to accelerate petitioner’s eligibility for parole in light of his
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later, more serious conviction. For these reasons, respondent’s motion to dismiss should be
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granted.
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Accordingly, IT IS HEREBY RECOMMENDED that respondent’s motion to
dismiss be granted.
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 fourteen
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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
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
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objections shall be filed and served within fourteen days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to
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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: October 16, 2012.
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