Hardney v. Virga

Filing 15

ORDER signed by Magistrate Judge Allison Claire on 4/13/2015 ORDERING respondent shall file, within 28 days, a brief addressing the question whether petitioner's claim bears a sufficient nexus to the duration of his custody to support habeas jurisdiction; and petitioner may file a response to respondent's brief within 21 days of service.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN FREDERICK HARDNEY,

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No. 2:13-cv-01509 TLN AC P

Petitioner,
v.

ORDER

T. VIRGA,
Respondent.

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Petitioner is a California state prisoner proceeding pro se with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254, challenging a prison disciplinary conviction. Petition, ECF

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No. 1. Respondent has filed an answer, ECF No. 13, and petitioner has filed a traverse, ECF No.

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14. Neither party has addressed this court’s jurisdiction.

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A writ of habeas corpus is the appropriate federal remedy when “a state prisoner is

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challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a

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determination that he is entitled to an immediate or speedier release from that imprisonment.”

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Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Challenges to prison disciplinary convictions in

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which the inmate has lost time credits may come within the federal court’s habeas jurisdiction,

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Edwards v. Balisok, 520 U.S. 641, 644 (1997), but only if “expungement is likely to accelerate

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the prisoner's eligibility for parole,” Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989).

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“[H]abeas jurisdiction is absent... where a successful challenge to a prison condition will not
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necessarily shorten [a] prisoner’s sentence.” Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir.

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2003). The court’s jurisdiction turns on the nexus between the disciplinary finding and the

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duration of confinement. Docken v. Chase, 393 F.3d 1024, 1028–29, 1031 (9th Cir. 2004).

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This court cannot determine from the pleadings and exhibits on file whether the 90 day

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credit forfeiture assessed in the disputed disciplinary proceeding, see ECF No. 1 at 47 (RVR

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Disposition), will likely affect the duration of petitioner’s custody. The petition states that

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petitioner is serving a sentence of “28 plus life with parole.” ECF No. 1 at 1. The answer

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provides no information about petitioner’s sentence, or the regulations under which his suitability

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for parole will be assessed and any release date calculated. Accordingly, the undersigned cannot

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make a threshold determination that it has jurisdiction to consider the merits of petitioner’s claim.

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Accordingly, it is hereby ORDERED as follows:
1. Respondent shall, within twenty-eight days, file a brief addressing the question whether

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petitioner’s claim bears a sufficient nexus to the duration of his custody to support habeas

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jurisdiction;

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2. Petitioner may file a response to respondent’s brief within twenty-one days of service.
DATED: April 13, 2015

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