Fletcher v. Arnold

Filing 16

ORDER signed by Magistrate Judge Kendall J. Newman on 6/26/15 ORDERING that within 28 days of entry of this order, petitioner is directed to file a brief addressing whether the operative petition for writ of habeas corpus should be dismissed for lac k of subject matter jurisdiction. Petitioner is advised that his briefing should address both (a) the merits of the contentions raised by respondent on pages 5-6 of respondents answer and (b) the applicability of the Nettles decision to the facts of the petition (that is, whether granting the requested habeas relief will necessarily spell speedier relief from custody for petitioner). Petitioners brief may be no longer than 10 pages in length, except that he may attach supporting exhibits of any length to his brief. If petitioner files a brief, respondent is directed to file a response that is no longer than 10 pages in length (exclusive of any exhibits) within fourteen days thereafter. The parties are reminded that they may reference previo usly-filed exhibits in their briefing instead of filing new copies of exhibits with the court. Petitioner is advised that his failure to file a brief as ordered herein will be interpreted as consent to dismissal of this petition pursuant to Nettles. The Clerk of the Court is directed to serve a copy of Nettles v. Grounds, __ F. 3d __, 2015 WL 3406160, 2015 U.S. App. LEXIS 8825 (9th Cir. May 28, 2015) on petitioner. (Attachments: # 1 Attachment)(Dillon, M)

Nettles v. Grounds, --- F.3d ---- (2015)
2015 WL 3406160, 15 Cal. Daily Op. Serv. 5270, 2015 Daily Journal D.A.R. 5808

2015 WL 3406160
United States Court of Appeals,
Ninth Circuit.
Damous D. NETTLES, Petitioner–Appellant,
v.
Randy GROUNDS, Warden, Respondent–Appellee.
Matta Juan Santos, Petitioner–Appellant,
v.
K. Holland and Jeffrey Beard,
Respondents–Appellees.

[3] restoration of 30 days of post-conviction credit for first
prisoner would not necessarily spell speedier release from
custody; but
[4] successful habeas claim by second prisoner would
necessarily result in quantum change in level of custody.

Affirmed as to first prisoner; reversed and remanded as to
second prisoner.
Murguia, Circuit Judge, filed an opinion concurring in part
and dissenting in part.

Nos. 12–16935, 13–15050. | Argued and
Submitted Oct. 6, 2014. | Filed May 28, 2015.
West Headnotes (15)
Synopsis
Background: First state prisoner petitioned for federal
habeas relief, asserting due process challenge to prison
disciplinary proceedings that resulted in loss of postconviction credits. The United States District Court for the
Eastern District of California, Jennifer L. Thurston, United
States Magistrate Judge, 2011 WL 5241176, recommended
dismissal based on lack of jurisdiction. The District Court,
Lawrence J. O'Neill, J., dismissed the petition. First prisoner
appealed. Second state prisoner petitioned for federal habeas
relief, asserting due process challenge to gang-involvement
disciplinary determination, which resulted in placement in
security housing unit (SHU). The District Court, Lawrence
J. O'Neill, J., dismissed the petition based on lack of
jurisdiction. Second prisoner appealed, and the two appeals
were consolidated.

[1]

The court of appeals reviews de novo a district
court's decision to deny a state prisoner's petition
for federal habeas corpus relief. 28 U.S.C.A. §
2254.
Cases that cite this headnote
[2]

Cases that cite this headnote
[3]

[2] expungement of rules violation report from first prisoner's
disciplinary record would not necessarily spell speedier
release from custody;

Habeas Corpus
Review de novo
The court of appeals reviews de novo a district
court's determination that it does not have
jurisdiction over a state prisoner's federal habeas
corpus petition. 28 U.S.C.A. § 2254.

Holdings: The Court of Appeals, Ikuta, Circuit Judge, held
that:
[1] a state prisoner's claim challenging prison disciplinary
proceedings is cognizable as a federal habeas claim only if it
will necessarily spell speedier release from custody, meaning
that the relief sought will either terminate custody, accelerate
the future date of release from custody, or reduce the level of
custody;

Habeas Corpus
Review de novo

Habeas Corpus
Nature of Remedy in General
Habeas Corpus
Release from restraint
The essence of habeas corpus is an attack by
a person in custody upon the legality of that
custody, and the traditional function of the writ
is to secure release from illegal custody. 28
U.S.C.A. §§ 2241(c)(3), 2254(a).
Cases that cite this headnote

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Good conduct credit
[4]

Habeas Corpus
Right to immediate release, in general

State prisoners can seek federal habeas relief
to challenge an unlawful loss of good-time
credits, even if restoration of such credits would
merely shorten the length of their confinement,
rather than require immediate discharge from
that confinement. 28 U.S.C.A. § 2254.

When a state prisoner is challenging the very
fact or duration of his physical imprisonment,
and the relief he seeks is a determination that
he is entitled to immediate release or a speedier
release from that imprisonment, his sole federal
remedy is a writ of habeas corpus. 28 U.S.C.A.
§ 2254.
Cases that cite this headnote
[5]

Cases that cite this headnote
[9]

The Court of Appeals is bound by the Supreme
Court's statements and its characterization of
its own precedent, regardless whether the Court
of Appeals believes its interpretation of its
precedents is superior.

Habeas Corpus
Release on bond, bail, or recognizance
Habeas Corpus
Probation, parole, conditional release, or
furlough
A person is deemed to be “in custody”
for purposes of habeas corpus when the
person is subject to parole, or even when the
person is released on bail or on the person's
own recognizance. 28 U.S.C.A. §§ 2241(c)(3),
2254(a).

Cases that cite this headnote
[10]

Habeas Corpus
Release from restraint
A prisoner is deemed to be seeking release from
custody, so that habeas corpus is available as a
remedy, even when the prisoner will not gain
freedom, but will be released into a different
form of custody. 28 U.S.C.A. §§ 2241(c)(3),
2254(a).
Cases that cite this headnote

[7]

Habeas Corpus
Other objectives; damages, etc
The federal habeas corpus statute does not deny
the federal courts power to fashion appropriate
relief other than immediate release of a state
prisoner. 28 U.S.C.A. § 2254.
Cases that cite this headnote

[8]

Habeas Corpus
Limitations and conditions; treatment and
discipline
A state prisoner's claim challenging prison
disciplinary proceedings is cognizable as a
federal habeas claim only if it will necessarily
spell speedier release from custody, meaning
that the relief sought will either terminate
custody, accelerate the future date of release
from custody, or reduce the level of custody. 28
U.S.C.A. § 2254(a).

Cases that cite this headnote
[6]

Courts
Supreme Court decisions

Cases that cite this headnote
[11]

Habeas Corpus
Limitations and conditions; treatment and
discipline
Due process claim asserted by state prisoner
serving life sentence with possibility of parole,
challenging prison disciplinary proceeding and
seeking expungement of rules violation report
from his disciplinary record, would not
necessarily spell speedier release from custody,
as would be required for cognizable federal
habeas claim; a rules violation was merely one
factor that state parole board would consider to
determine whether prisoner constituted a current

Habeas Corpus

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threat to public safety. U.S.C.A. Const.Amend.
14; 28 U.S.C.A. § 2254(a); 15 CCR § 2281(b).

[14]

Cases that cite this headnote
[12]

Cases that cite this headnote
[13]

Habeas corpus jurisdiction is available for a
prisoner's claims that he has been subjected
to greater restrictions of his liberty, such as
disciplinary segregation, without due process of
law. U.S.C.A. Const.Amend. 5; 28 U.S.C.A. §§
2241(c)(3), 2254(a).

Habeas Corpus
Good conduct credit
Due process claim asserted by state prisoner
serving life sentence with possibility of parole,
challenging prison disciplinary proceeding and
seeking restoration of 30 days of post-conviction
credit that were lost, would not necessarily spell
speedier release from custody, as would be
required for cognizable federal habeas claim;
prisoner's minimum eligible parole date had
already passed when he was deprived of credits,
state parole board had not yet found prisoner
to be suitable for parole and it was unknown
whether board would do so at next parole
hearing, and if prisoner was eventually found
suitable for parole and a parole date was
calculated, deprivation of post-conviction credits
could affect his release date only if base term
for parole date exceeded time already served.
U.S.C.A. Const.Amend. 14; 28 U.S.C.A. §
2254(a); Cal.Code 15 CCR § 2289.

Habeas Corpus
Limitations and conditions; treatment and
discipline
Due process claim asserted by state prisoner
serving life sentence with possibility of parole,
challenging prison disciplinary proceeding and
seeking expungement of gang-involvement
disciplinary determination, would, if successful,
necessarily spell speedier release from custody
through prisoner's immediate release from
placement in security housing unit (SHU) and
his return to general prison population, which
would be a quantum change in level of custody,
and thus, prisoner presented a cognizable federal
habeas claim. U.S.C.A. Const.Amend. 14; 28
U.S.C.A. § 2254(a).
Cases that cite this headnote

Habeas Corpus
Limitations and conditions; treatment and
discipline

Cases that cite this headnote
[15]

Habeas Corpus
Limitations and conditions; treatment and
discipline
Habeas Corpus
Place of confinement; transfer
Habeas corpus jurisdiction is not available, for
a prisoner seeking change in custody, where
the prisoner is not seeking a quantum change
in the level of custody, such as release from
disciplinary segregation to the general prison
population, or release from prison on bond,
parole, or probation, but is merely seeking a
different program or location or environment,
even if the program or location or environment
that he is challenging is more restrictive than the
alternative that he seeks. 28 U.S.C.A. §§ 2241(c)
(3), 2254(a).
Cases that cite this headnote

Attorneys and Law Firms
Monica Knox (argued), Assistant Federal Defender; Heather
Williams, Federal Defender, Sacramento, CA, for Petitioner–
Appellant Damous D. Nettles.
Peggy Sasso (argued), Assistant Federal Defender; Heather
Williams, Federal Defender, Fresno, CA, for Petitioner–
Appellant Matta Juan Santos.
Andrew R. Woodrow (argued), Deputy Attorney General;
Kamala D. Harris, Attorney General of California; Jennifer A.
Neill, Senior Assistant Attorney General; Phillip J. Lindsay,
Supervising Deputy Attorney General, Sacramento, CA, for
Respondent–Appellee Randy Grounds, Warden.

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Amy Daniel (argued), Deputy Attorney General; Kamala D.
Harris, Attorney General of California; Jennifer A. Neill,
Senior Assistant Attorney General; Jessica N. Blonien,
Supervising Deputy Attorney General, Sacramento, CA, for
Respondents–Appellees K. Holland and Jeffrey Beard.
Appeal from the United States District Court for the Eastern
District of California, Anthony W. Ishii, Senior District
Judge, Presiding. D.C. No. 1:11–cv–01201–AWI–JLT.
Appeal from the United States District Court for the Eastern
District of California, Lawrence J. O'Neill, District Judge,
Presiding. D.C. No. 1:12–cv–01651–LJO–GSA.
Before SANDRA S. IKUTA, N. RANDY SMITH, and
MARY H. MURGUIA, Circuit Judges.

OPINION
IKUTA, Circuit Judge:
*1 The two appeals consolidated in this opinion require
us to identify the appropriate standard for determining
whether a claim is cognizable under the federal habeas
statute. 1 Applying Skinner v. Switzer, we conclude that
a claim challenging prison disciplinary proceedings is
cognizable in habeas only if it will “necessarily spell speedier
release” from custody, meaning that the relief sought will
either terminate custody, accelerate the future date of release
from custody, or reduce the level of custody. 562 U.S.
521, 131 S.Ct. 1289, 1299 n. 13, 179 L.Ed.2d 233 (2011)
(emphasis added) (internal quotation marks omitted) (citing
Wilkinson v. Dotson, 544 U.S. 74, 86, 125 S.Ct. 1242, 161
L.Ed.2d 253 (2005) (Scalia, J., concurring)). To the extent
our prior decisions held that a claim is cognizable in habeas
if success on the claim is likely to, or has the mere potential
to, affect the length of a petitioner's confinement, they are
overruled as irreconcilable with Skinner. See Blair v. Martel,
645 F.3d 1151, 1157 (9th Cir.2011).

I
Damous Nettles and Matta Juan Santos, both prisoners in
California state prisons, appeal the district court's dismissal
of their habeas petitions.

A
In 1990, Nettles was convicted in California of attempted
first degree murder with use of a firearm, and other offenses.
The victim was a woman who had filed a complaint against
Nettles's brother. In order to prevent her from testifying,
Nettles took the victim down an alley, ordered her onto her
hands and knees, and told her “You're not going to testify
against my brother. I'm going to kill you.”Nettles then shot
her twice in the left ear and left her in the alley. The victim
did not die, but was seriously injured and disfigured.
Nettles was sentenced to prison for a determinate term of
twelve years and a life term with the possibility of parole
for his convictions for attempted murder and dissuading and
conspiring to dissuade a witness from attending or giving
testimony at trial. His minimum eligible parole date was
October 19, 2005. An initial parole consideration hearing
was held in 2004. Before that hearing, prison staff had
issued some thirty-nine rules violations reports (CDC Form
115) to Nettles. These reports are issued for misconduct
that “is believed to be a violation of law or is not minor
in nature.”Cal.Code Regs. tit. 15, § 3312(a)(3). He also
received numerous citations for lesser types of misconduct.
See id. § 3312(a)(2) (noting that “documentation of minor
misconduct” should be “documented on a CDC Form 128–
A”). At his initial parole hearing in 2004, the Board of
Prison Terms (now the Board of Parole Hearings, or Board) 2
deemed Nettles to be unsuitable for parole and declined to set
a parole date. It scheduled the next parole suitability hearing
for 2006, but the date was postponed several times.
After 2004, Nettles received seven additional rules violations
reports. On February 26, 2008, staff issued Nettles a rules
violation report for threatening to stab a corrections officer.
After an investigation of the incident and a hearing, Nettles
was found guilty, and given a four-month term in the
segregated housing unit. He also lost thirty days of postconviction credit.
*2 On July 30, 2009, the Board convened a second parole
suitability hearing for Nettles. At the hearing, the presiding
commissioner first described the facts of Nettles's crime,
characterizing it as “one of the most atrocious and cruel acts
I've read” and stating that Nettles's motive was “ridiculously
heinous.”

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The commissioner then reviewed Nettles's prior criminal
history. Nettles had a long string of convictions beginning at
age seventeen, and had been in and out of prison for offenses
including possession of drugs, assault with a deadly weapon,
battery on a peace officer, and robbery. Nettles was on parole
for the robbery conviction when he committed the attempted
murder for which he was sentenced to life imprisonment. The
commissioner stated that Nettles's lengthy criminal history
illustrated his inability to learn from prior imprisonments.
The commissioner next explained the hearing panel's
concerns about Nettles's mental state and attitude about
the crime. In the hearing panel's view, Nettles's letter to
the victim did not express true remorse. Further, Nettles
had not taken responsibility for his conduct and lacked
insight that would enable him to change his behavior. The
commissioner discussed a May 2007 psychological report,
which gave Nettles “a rating of overall moderate likelihood
to become involved in a violent offense if released.”Finally,
the commissioner stated that Nettles was argumentative and
stubborn, “challenge[d] authority at every given opportunity”
and refused to restrain himself, as evidenced by his numerous
rules violations. The commissioner noted the forty-six rules
violation reports that had been issued to Nettles while he was
in prison. Nettles “continued to display negative behavior
while incarcerated,” and as a result was placed in segregated
housing. Moreover, Nettles had not taken any significant
steps to gain skills to function outside of prison. Nevertheless,
the commissioner noted some positive steps Nettles had
taken, including a slight reduction in the number of rules
violations reports issued to Nettles in recent years.
The hearing panel concluded that Nettles was unsuitable
for parole because he “still pose[d] an unreasonable risk of
danger if released from prison.”This finding was “based on
weighing the considerations provided in the California Code
of Regulations.”As authorized by the regulations, id. § 2306,
the commissioner made recommendations regarding “what
steps may be undertaken to enhance the possibility of a grant
of parole at a future hearing,”id. § 2304, telling Nettles that
“[f]or next time, you certainly need to become and remain
disciplinary free.”
On January 23, 2009, Nettles filed a habeas petition in the
Superior Court of California claiming, in relevant part, that
the 2008 rules violation report was illegal, and that the
disciplinary proceedings held in connection with the 2008
rules violation report violated his due process rights. The
Superior Court denied the petition, concluding that Nettles

failed to exhaust his administrative remedies concerning
these claims. 3 The California Court of Appeal and California
Supreme Court then summarily denied the petition.
*3 On June 10, 2011, Nettles filed a habeas petition
in federal court seeking, among other things, “restoration
of good time,” presumably referring to the loss of thirty
days of post-conviction credits as a result of the 2008
disciplinary decision, and expungement of the February 26,
2008 rules violation report. After being ordered to respond,
the state moved to dismiss the petition, arguing that the court
lacked jurisdiction to entertain the petition because the 2008
disciplinary decision did not impact the fact or duration of
Nettles's confinement. Nettles opposed the motion, arguing
that the disciplinary decision impacted the duration of his
confinement because it delayed his parole hearing and
constituted grounds for future denial of parole.
The district court dismissed Nettles's petition, holding that he
could not show that expungement of the 2008 rules violation
report was likely to accelerate his eligibility for parole.
Nettles timely appealed the district court's decision.

B
Santos was convicted in 1996 under California Penal Code
section 209(a) for participating in a kidnap-for-ransom
scheme. He was sentenced to a term of life in prison with the
possibility of parole plus nine years.
After prison investigators verified allegations that Santos
was a currently active member of the Mexican Mafia, a
prison official validated the gang-involvement determination
on February 10, 2011. SeeCal.Code Regs. tit. 15, § 3378. As
a result of this gang validation, Santos was removed from
the general prison population and confined in the security
housing unit (SHU) indefinitely.
Santos claims that the SHU is a “prison within a prison where
prisoner[s] are denied virtually all privileges.”According to
Santos, prisoners placed in the SHU spend approximately
twenty-two hours per day in their cells, receive all meals
in their cells, are denied contact visits and phone access,
and are not allowed to participate in training or education
activities. Additionally, a prisoner is ineligible to earn
post-conviction credits under California Penal Code section
2933(b) or program credit reductions under California Penal

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Code section 2933.05 during the time the prisoner is placed
in the SHU.Cal.Penal Code § 2933.6.
Santos administratively appealed his gang validation. After
his third and final administrative appeal was denied, Santos
filed a petition for a writ of habeas corpus in the Superior
Court of California arguing, among other things, that the
allegations of his gang involvement were false, and that
there was no evidence supporting the gang validation. Santos
demanded that the prison expunge the gang validation from
his file and release him to the general prison population. The
Superior Court denied Santos's petition, finding that sufficient
evidence supported the gang validation. The California Court
of Appeal and California Supreme Court summarily denied
the petition.

In the leading case of Preiser, the Court considered whether
prisoners who had lost good-time credits as a result of
disciplinary proceedings could bring an action under 42
U.S.C. § 1983 4 for restoration of the credits on the ground
that the proceedings violated their due process rights, or
whether they were limited to bringing a habeas petition.
Id. at 476–77. The prisoners would have been entitled to
immediate release from prison if their good-time credits had
been restored. Id.

[4]
[5]
[6]
[7]
[8] Because analyzing this issue
required an inquiry into the respective spheres of habeas
and civil rights actions, the Court first gave federal courts
guidance as to what types of cases sounded in habeas.
According to the Court, “when a state prisoner is challenging
On October 9, 2012, Santos filed a petition for a writ of habeas
the very fact or duration of his physical imprisonment,
corpus in federal court, arguing that the gang validation
and the relief he seeks is a determination that he is
violated his due process rights because it was “based on false,
entitled to immediate release or a speedier release from that
unreliable and insufficient information.”He sought release
imprisonment, his sole federal remedy is a writ of habeas
from the SHU. The district court dismissed the petition on
corpus.”Id. at 500. The Court noted that the scope of habeas
the ground that Santos's claims were not cognizable under
had evolved over the years. Id. at 485. A person is deemed
the federal habeas statute, as they concerned the conditions,
to be “in custody” for purposes of habeas when a person is
rather than the fact or duration, of his confinement. Santos
subject to parole, id. at 486 n. 7 (citing Jones v. Cunningham,
timely appealed the district court's decision.
371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963)), or even
when the person is released on bail or on the person's own
recognizance, id. (citing Hensley v. Municipal Court, 411
U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973)). In addition,
II
a prisoner is deemed to be seeking “release” from custody
*4 [1] [2] We review de novo a district court's decision even when the prisoner will not gain freedom, but will be
to deny a petition for habeas corpus. Bailey v. Hill, 599 F.3d
released into a different form of custody. See id. at 486
976, 978 (9th Cir.2010). We also review de novo a district
(stating that the writ of habeas corpus is available to obtain
court's determination that it does not have jurisdiction over a
release from the wrong institution to the correct institution)
habeas corpus petition. Id.
(citing Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31
L.Ed.2d 394 (1972) and In re Bonner, 151 U.S. 242, 14 S.Ct.
[3] Both Nettles's and Santos's appeals require us to 323, 38 L.Ed. 149 (1894)). Finally, “the federal habeas corpus
determine when we lack jurisdiction over a claim raised in a
statute does not deny the federal courts power to fashion
habeas petition. By statute, federal courts must “entertain an
appropriate relief other than immediate release.”Id. at 487
application for a writ of habeas corpus in behalf of a person in
(internal quotation marks omitted). For instance, prisoners
custody pursuant to the judgment of a State court only on the
can challenge an unlawful loss of good-time credits even if
ground that he is in custody in violation of the Constitution or
restoration of such credits “merely shortened the length of
laws or treaties of the United States.”28 U.S.C. § 2254(a); see
their confinement, rather than required immediate discharge
also28 U.S.C. § 2241(c)(3). According to the Supreme Court,
from that confinement.”Id.
this language, as well as “the common-law history of the writ”
makes clear “that the essence of habeas corpus is an attack by
*5 Turning next to the appropriate scope of § 1983, the Court
a person in custody upon the legality of that custody, and that
ruled that where prisoners challenged the fact or duration of
the traditional function of the writ is to secure release from
their imprisonment, and sought immediate or speedier release
illegal custody.”Preiser v. Rodriguez, 411 U.S. 475, 484, 93
from that imprisonment, they were precluded from bringing
S.Ct. 1827, 36 L.Ed.2d 439 (1973).
that challenge in a civil rights action under § 1983. Id. at 500.

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The Court reasoned that although “the literal terms of § 1983
might seem to cover” claims that a prisoner's confinement
violated the Constitution, id. at 489, there was, as the Court
later put it, “an implicit exception from § 1983's otherwise
broad scope for actions that lie ‘within the core of habeas
corpus,’“ Wilkinson v. Dotson, 544 U.S. 74, 79, 125 S.Ct.
1242, 161 L.Ed.2d 253 (2005) (quoting Preiser, 411 U.S.
at 487). Because Congress passed the more specific habeas
statute, requiring exhaustion of state remedies, to cover state
prisoners' constitutional challenges to their convictions and
sentences, any prisoner complaint lying at “the core of habeas
corpus” had to be brought by means of a habeas petition, not

the prisoner's sentence.”334 F.3d 850, 859 (9th Cir.2003).
In Docken v. Chase, we held that prisoners could bring
claims in a habeas petition “challenging aspects of their
parole review” so long as success on the claims “could
potentially affect the duration of their confinement.”393 F.3d
1024, 1031 (9th Cir.2004) (emphasis omitted). These cases
together establish that habeas jurisdiction is available only
for claims that, if successful, would have some shortening
effect on the length of a person's custody. We have not made
clear, however, whether a claim has to necessarily, likely, or
merely potentially accelerate release from confinement to be
cognizable in habeas.

under § 1983.Preiser, 411 U.S. at 489–90. 5
The Court then examined the prisoners' claims in light of these
rulings. Because the prisoners in Preiser brought a challenge
seeking relief that would result in immediate release from
prison, their claims “fell squarely within [the] traditional
scope of habeas corpus.”Id. at 487. Because the claims were
“within the core of habeas corpus,” that was the prisoners'
exclusive remedy, and they were precluded from bringing the
action under § 1983. Id. at 487–88, 500.
Although Preiser helps delineate the core of habeas, it did not
delineate the outer limits of habeas jurisdiction, the question
before us here. Indeed, Preiser held this issue open, stating
that “we need not in this case explore the appropriate limits
of habeas corpus as an alternative remedy to a proper action
under § 1983.”Id. at 500.
We addressed this issue in cases following Preiser, and made
clear that habeas jurisdiction was available only for claims
that had some nexus to shortening the length of confinement.
We did not, however, fully delineate the contours of this
nexus. In Crawford v. Bell, we held that habeas did not
extend to challenges to the “terms and conditions” of a
prisoner's incarceration, where the appropriate remedy would
not include “release from confinement.” 599 F.2d 890, 891–
92 (9th Cir.1979). In Bostic v. Carlson, we held that a prisoner
could bring a petition in habeas to seek relief from various
disciplinary decisions that resulted in “forfeiture of statutory
good time or segregation from the general prison population,”
where the relief was for “expungement of the incident from
his disciplinary record” so long as such “expungement is
likely to accelerate the prisoner's eligibility for parole.”884
F.2d 1267, 1269 (9th Cir.1989). In Ramirez v. Galaza, we
stated that a prisoner could not bring a habeas petition to seek
expungement of a disciplinary charge where “a successful
challenge to a prison condition will not necessarily shorten

*6 In Skinner v. Switzer, the Supreme Court again
confronted the question, “[w]hen may a state prisoner,
complaining of unconstitutional state action, pursue a civil
rights claim under § 1983, and when is habeas corpus
the prisoner's sole remedy?”Skinner, 131 S.Ct. at 1298. In
Skinner, the Court considered a prisoner's lawsuit against a
Texas district attorney for failing to provide DNA testing the
prisoner requested. Id. at 1295. The Court concluded that the
prisoner could assert that claim in an action under § 1983
rather than in a petition for a writ of habeas corpus because
a judgment that simply orders DNA tests will not necessarily
imply the unlawfulness of the state's custody or spell speedier
release. Id. at 1293. 6
[9] In reaching this conclusion, Skinner relied on Wilkinson
v. Dotson, an earlier Supreme Court decision holding that
prisoners could challenge the retroactive application of parole
guidelines under § 1983 because their claims did not lie at
the “core of habeas corpus.” Dotson, 544 U.S. at 82 (internal
quotation marks omitted).Skinner explained that “Dotson
declared ... in no uncertain terms, that when a prisoner's claim
would not ‘necessarily spell speedier release,’ that claim does
not lie at ‘the core of habeas corpus,’ and may be brought, if at
all, under § 1983.”Skinner, 131 S.Ct. at 1299 n. 13 (emphasis
added). Citing Justice Scalia's concurrence in Dotson, Skinner
indicated that the Court had never “recognized habeas as
the sole remedy, or even an available one, where the relief
sought would ‘neither terminat[e] custody, accelerat[e] the
future date of release from custody, nor reduc[e] the level of
custody.’ “ Id. at 1299 (emphasis added) (quoting Dotson,
544 U.S. at 86 (Scalia, J., concurring)). Accordingly, Skinner
adopted the line between § 1983 claims and habeas actions
that it discerned in Dotson. Id. 7
Applying Skinner's ruling on the outer limits of habeas
jurisdiction, we stated that federal courts lack habeas

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jurisdiction to consider claims for constitutional violations
that do not necessarily spell speedier release. See Blair,
645 F.3d at 1157. In Blair, we considered whether a state
prisoner could bring a habeas petition claiming that the
California Supreme Court's delay in processing his direct
appeal deprived him of due process. Id. We dismissed this
claim, in part because we lacked habeas jurisdiction. Id. at
1157–58. We explained that Dotson and Skinner“distinguish
between claims that necessarily imply the invalidity of a
conviction,” which must be brought in a habeas petition, and
“claims for constitutional violations that do not necessarily
spell speedier release and thus do not lie at the core of habeas
corpus, which may be brought, if at all, under § 1983.”Id.
at 1157. Because the prisoner's claim did not challenge
the validity of his conviction or “necessarily spell speedier
release,” we concluded that it “belongs in a § 1983 complaint,
not a habeas petition.”Id. at 1157–58; see also Griffin v.
Gomez, 741 F.3d 10, 17 & n. 15 (9th Cir.2014) (“Though we
had held that [an order requiring a change in conditions of
confinement] could issue on a habeas petition, the Supreme
Court [in Skinner, 131 S.Ct. at 1299 n. 13] has since held
otherwise.”).But see Thornton v. Brown, 757 F.3d 834, 841 &
n. 4 (9th Cir.2013) (stating in passing that § 1983 and habeas
may provide alternative means to challenge prison conditions,
and noting parenthetically that Skinner raised, but did not
decide “the question whether ‘habeas [is] the sole remedy, or
even an available one,’ for certain types of claims (quoting
Skinner, 131 S.Ct. at 1299) (alteration in original)).

duration of time to be served). Accordingly, we conclude
that under Skinner, in cases involving challenges to prison
disciplinary proceedings, the writ of habeas corpus extends
only to claims that, if successful, will “necessarily spell
speedier release.” See Skinner, 131 S.Ct. at 1299 n. 13
(emphasis added). To the extent our cases have indicated
that the writ of habeas corpus may extend to claims that, if
successful, would merely be likely to or have the potential to
lead to a speedier release, they are superceded by the Supreme
Court's rulings. See Miller v. Gammie, 335 F.3d 889, 893
(9th Cir.2003) (“[W]here the reasoning or theory of our prior
circuit authority is clearly irreconcilable with the reasoning
or theory of intervening higher authority, a three-judge panel
should consider itself bound by the later and controlling
authority, and should reject the prior circuit opinion as having
been effectively overruled.”). Prisoners seeking to bring other
challenges to prison conditions may have recourse to § 1983,
which allows them to bring claims without exhausting state
remedies or facing the highly deferential standard of review

*7 [10] We now reaffirm our statements in Blair and
Griffin, and hold that we are bound by the Court's express
statement in Skinner that relief is available to a prisoner under
the federal habeas statute only if success on the claim would
“necessarily spell speedier release” from custody, which
Skinner suggested would include termination of custody,
acceleration of the future date of release from custody, or
reduction of the level of custody. See Skinner, 131 S.Ct.

A

at 1299 & n. 13. 8 This conclusion is not only consistent
with the plain language of Skinner and our own previous
interpretations of that case, it is also consistent with the
Court's precedents and the common law history of the
writ. See Preiser, 411 U.S. at 484–86; Dotson, 544 U.S.
at 85–87 (Scalia, J., concurring); Muhammad v. Close,
540 U.S. 749, 754–55, 124 S.Ct. 1303, 158 L.Ed.2d 32
(2004) (per curiam) (holding that a prisoner “raised no claim
on which habeas relief could have been granted on any
recognized theory” where the administrative determinations
he challenged neither raised an implication about the validity
of the underlying conviction nor necessarily affected the

applicable to habeas claims. 9

III
We now apply these principles to the habeas petitions filed
by Nettles and Santos.

Nettles seeks two forms of relief. First, he seeks expungement
of the February 26, 2008 rules violation report for threatening
to stab a corrections officer. Second, he seeks restoration of
the thirty days of post-conviction credit that were lost based
on a finding that he was guilty of the alleged rules violation.
We must determine whether either of these forms of relief
will “necessarily spell speedier release” from custody. See
Skinner, 131 S.Ct. at 1299 n. 13.

1
In order to understand Nettles's arguments that both claims
are cognizable in habeas, it is first necessary to review
certain aspects of California's parole system. If a prisoner, like
Nettles, has been given a life sentence with the possibility
of parole, the earliest date on which such a prisoner may be
released on parole is termed the “minimum eligible parole

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date.” Cal.Code Regs. tit.15, § 2000(b)(67). This date is set
by statute, and the California Department of Corrections is
responsible for calculating it. Id. § 2400.
*8 One year before a prisoner reaches the minimum
eligible parole date, the Board (or a panel of two or
more commissioners) meets with the inmate, and sets a
parole release date “unless it determines that the gravity”
of the prisoner's offenses “is such that consideration
of the public safety requires a more lengthy period of
incarceration.”Cal.Penal Code § 3041(b); see alsoCal.Code
Regs. tit. 15, § 2281(b) (listing information considered in
determining whether a prisoner is suitable for release on
parole). If the Board decides not to set a parole release date,
the Board will schedule the next hearing for a period ranging
from three to fifteen years, depending on statutory criteria.
Cal.Penal Code § 3041.5(b)(3).
If the Board determines that the prisoner is suitable for parole,
it will calculate a parole date in the manner required by the
regulations. Cal.Code Regs. tit. 15, §§ 2289, 2317. First,
the Board calculates a base term, using a matrix set out in
the regulations. Id. §§ 2282, 2403. Among other factors, the
Board may consider post-conviction credit accrued by the
prisoner for time served, but “[i]n no case may post conviction
credit advance a release date earlier than the minimum
eligible parole date.”Id. § 2290(a). After the base term has
been determined, the prisoner's post-conviction credits are
subtracted to determine the adjusted term. Id. § 2411(a). If this
calculation establishes that the prisoner has served time equal
to or greater than the adjusted term, the prisoner is entitled to
release. Id. § 2289.

2
[11] Nettles argues that expunging the 2008 rules violation
report from his record is reasonably likely to accelerate
his release. He argues that under California law, the Board
“shall normally set a parole release date” unless the Board
determines that “the inmate constitutes a current threat to
public safety.”See In re Lawrence, 44 Cal.4th 1181, 82
Cal.Rptr.3d 169, 190 P.3d 535, 546, 553 (Cal.2008) (internal
quotation marks omitted). Nettles argues that without the
2008 rules violation on his record, he would be able to present
the Board fifteen years free of any actions relating to drugs
or violence, and this would have some effect in accelerating
his release. While acknowledging that the 2009 hearing panel
might not have found him eligible for parole, even without

the 2008 rules violation report, Nettles claims that at a
minimum, the Board would have scheduled the next parole
suitability hearing at an earlier date, or that Nettles would
be able to accelerate the next hearing due to a “change in
circumstances.” Cal.Penal Code § 3041.5(d). Further, Nettles
claims that the existence of the 2008 rules violation report on
his record will detract from the Board's consideration of his
parole suitability for years to come. Because the expungement
relief Nettles requests will prevent these roadblocks to parole,
Nettles contends his claims are cognizable in habeas.
We reject these arguments, because the effect of an
expungement of the 2008 rules violation report is too
attenuated to meet the Skinner standard. While the 2008
rules violation report will likely have some effect on the
Board's consideration, there is no basis for concluding
that the expungement of this report from the record will
“necessarily spell speedier release” for Nettles. See Skinner,
131 S.Ct. at 1299 n. 13. Nor will it necessarily terminate
Nettles's custody, accelerate the future date of his release,
or reduce his level of custody. See id.The effect of a rules
violation on parole suitability is a matter of state law or
regulation, and, under California law, a rules violation is
merely one factor the parole board considers to determine
whether a prisoner “constitutes a current threat to public
safety,”Lawrence, 82 Cal.Rptr.3d 169, 190 P.3d at 553; it
is not determinative, seeCal.Code Regs. tit. 15, § 2281(b)
(directing the parole board to consider “[a]ll relevant, reliable
information” in determining suitability for parole). Here, the
Board considered a range of relevant factors bearing on
Nettles's future dangerousness, including his inability to learn
from prior imprisonments, his lack of insight and remorse
regarding his crimes, and his argumentative and stubborn
attitude. Even if successful, Nettles “will not necessarily
shorten the length of his confinement” because “[t]he parole
board will still have the authority to deny ... parole on
the basis of any of the grounds presently available to it in
evaluating such a request.”See Ramirez, 334 F.3d at 859 (first
alteration in original) (internal quotation marks omitted).
As Close pointed out, even when a challenge to prison
disciplinary proceedings “may affect the duration of time to
be served (by bearing on the award or revocation of good-time
credits),” where “it is not necessarily so,” a challenge to such
proceedings “raise[s] no claim on which habeas relief could
have been granted.”540 U.S. at 754–55 (emphasis added).
Therefore, this claim is not cognizable in habeas.
*9 [12] Nettles also argues that a restoration of postconviction credits would have an effect on the duration of his

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confinement. While he acknowledges that restoring the postconviction credits would not impact his minimum eligible
parole date, which had already passed at the time he was
deprived of the credits, Nettles contends that restoration of
the credits will reduce the term he must serve before being
released, once the Board determines he is eligible for parole
and sets a term for his release.
Again, we reject this argument. Although the loss of postconviction credit could lead to a longer term under some
circumstances, the effect in Nettles's case is far too attenuated
to meet the standard set forth in Skinner.First, the Board
has not yet found Nettles to be suitable for parole, and it is
unknown whether the Board will do so at the next parole
hearing. If Nettles is eventually found suitable for parole,
and a term is calculated, a deprivation of post-conviction
credits could affect his release date only if the base term
exceeded the time already served. SeeCal.Code Regs. tit. 15,
§ 2289. Without knowing how many years Nettles will serve
before the Board finds him suitable for parole or the length
of his base term, we cannot conclude that restoration of the
lost good-time credits would necessarily affect the duration
of Nettles's confinement if and when the Board finds him
suitable for parole.
Because neither expungement of the 2008 rules violation
report nor restoration of the lost good-time credits would
necessarily accelerate the future date of Nettles's release from
custody, we hold that his claim is not cognizable under the
federal habeas statute. See Skinner, 131 S.Ct. at 1299 & n. 13.

B
[13] We next turn to Santos's claim seeking expungement
of the gang validation from his record and release from the
SITU to the general prison population. If successful, Santos's
claim would result in immediate release from the SITU, but
would not result in immediate release from prison.
[14] We have previously held that “[h]abeas corpus
jurisdiction is also available for a prisoner's claims that
he has been subjected to greater restrictions of his liberty,
such as disciplinary segregation, without due process of
law.”Bostic, 884 F.2d at 1269. The Seventh Circuit has
similarly concluded:
If the prisoner is seeking what can
fairly be described as a quantum

change in the level of custody—
whether outright freedom, or freedom
subject to the limited reporting and
financial constraints of bond or
parole or probation, or the run
of the prison in contrast to the
approximation to solitary confinement
that is disciplinary segregation—then
habeas corpus is his remedy.
Graham v. Broglin, 922 F.2d 379, 381 (7th Cir.1991). In
reaching this conclusion, Graham distinguished challenges
seeking release from one type of custody to another from
cases challenging prison conditions. See id. (stating that if
a prisoner is “seeking a different program or location or
environment, then he is challenging the conditions rather than
the fact of his confinement and his remedy is under civil
rights law, even if, as will usually be the case, the program
or location or environment that he is challenging is more
restrictive than the alternative that he seeks.”).
*10 [15] We are bound by our ruling in Bostic, because the
Supreme Court's case law is not “clearly irreconcilable” with
our earlier determination that we have habeas jurisdiction
over a claim that would result in release from disciplinary
segregation to the general prison population. See Gammie,
335 F.3d at 893. The Court has long indicated that a prisoner's
claim for release from one form of custody to another, less
restrictive form of custody, can be brought in a habeas
petition. See Skinner, 131 S.Ct. at 1299 (suggesting that
habeas was available where the relief sought would reduce
the level of custody); Preiser, 411 U.S. at 486 (stating there is
habeas jurisdiction for claims seeking release on parole, bail,
or on one's own recognizance); see also Garlotte v. Fordice,
515 U.S. 39, 47, 115 S.Ct. 1948, 132 L.Ed.2d 36 (1995)
(prisoner's claim seeking speedier release from imprisonment
to parole was cognizable in habeas). And the Court has
not directly addressed the question whether a challenge to
the degree of constraints in prison (such as a release from
administrative or disciplinary segregation) is a claim seeking
release from custody, or merely a challenge to conditions
of confinement. See Close, 540 U.S. at 751 n. 1 (declining
to rule on the question whether a prisoner might have a
habeas claim to challenge “special disciplinary confinement
for infraction of prison rules”); see also Dotson, 544 U.S.
at 86 (Scalia, J. concurring) (suggesting that “permissible
habeas relief” could include a “quantum change in the level
of custody”) (citing Graham, 922 F.2d at 381)). Accordingly,
we remain bound by the determination in Bostic that a
prisoner can seek expungement of an incident from his

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disciplinary record when that would lead to speedier release
10

from disciplinary segregation. See Bostic, 884 F.2d at
1269. As suggested in Graham, however, a prisoner who
is not seeking a quantum change in the level of custody,
such as release from disciplinary segregation to the general
prison population, or release from prison on bond, parole,
or probation, but is merely “seeking a different program or
location or environment” even if “the program or location or
environment that he is challenging is more restrictive than the
alternative that he seeks,” does not meet the requirement in
Skinner. 11 See Graham, 922 F.2d at 381.
Here, Santos claims that the process by which he was
validated as a gang member violated his due process rights,
and, as a result of this unconstitutional validation, he was
confined in the SHU, which is a disciplinary segregation
facility imposing a greater quantum of custody. The remedy
Santos seeks of expungement of the gang validation from
his record and release from the SHU to the general prison
population, “can fairly be described as a quantum change in
the level of custody.”See id. at 381. Additionally, success
on his claim would result in his immediate release from the
SHU to the general prison population. His claim that he has
been subjected to greater restrictions of his liberty without due
process of law is therefore properly brought as a petition for a
writ of habeas corpus . 12 See Skinner, 131 S.Ct. at 1299 & n.
13; Bostic, 884 F.2d at 1269. Because the district court erred
in dismissing Santos's petition, we remand to the district court
for further proceedings on the merits of Santos's claim.
*11 AFFIRMED IN APPEAL NO. 12–16935,
REVERSED AND REMANDED IN APPEAL NO. 13–
15050.

To accept the majority's strained reading of Skinner we have
to believe that the Supreme Court, after leaving the issue
open for over forty years, 1 conclusively determined the outer
boundaries of habeas jurisdiction in a footnote of a case that
did not involve a habeas petition. We likewise must ignore the
Court's explicit limitation that its decision was not intended
to forge new law, see Skinner, 131 S.Ct. at 1299 n. 13 (stating
that Skinner should not be interpreted to “mov[e] the line”
drawn by the Court's earlier decisions) (quoting Wilkinson v.
Dotson, 544 U.S. 74, 84, 125 S.Ct. 1242, 161 L.Ed.2d 253
(2005)), and accept that the Supreme Court implemented this
drastic change to habeas jurisdiction through an ambiguous
statement rather than by clear direction.
Given these hurdles, I cannot agree with the majority that
Skinner's holding is clearly irreconcilable with our court's
decisions in Bostic v. Carlson, 884 F.2d 1267, 1269 (9th
Cir.1989) (habeas jurisdiction is proper when a prisoner seeks
expungement of a disciplinary finding if “expungement is
likely to accelerate the prisoner's eligibility for parole”),
and Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir.2004)
(habeas jurisdiction is proper when a prisoner's challenge to
parole procedures “could potentially affect the duration of ...
confinement”) (emphasis in original)). Even if the majority
is correct that the footnote signals an answer to the issue the
Supreme Court left open in Preiser, the majority is not free
to disregard binding case law absent much clearer direction
from the Supreme Court. See United States v. Green, 722 F.3d
1146, 1150 (9th Cir.2013). Because the majority's holding
exceeds the scope of authority granted to a three judge panel
of our court, I must dissent.

I

MURGUIA, Circuit Judge, concurring in part, and dissenting
in part:
I disagree with the majority that the Supreme Court expressly
“rul[ed] on the outer limits of habeas jurisdiction” in Skinner
v. Switzer, 562 U.S. 521, 131 S.Ct. 1289, 179 L.Ed.2d
233 (2011).See Majority 17. Skinner addressed whether a
prisoner's civil rights action could proceed under 42 U.S.C.
§ 1983, and did not involve a federal habeas petitioner,
much less the scope of relief available under 28 U.S.C. §
2254. See Skinner, 131 S.Ct. at 1297 (“We take up here only
the questions whether there is federal-court subject-matter
jurisdiction over Skinner's complaint, and whether the claim
he presses is cognizable under § 1983.”(emphasis added)).

By concluding that Bostic and Docken are clearly
irreconcilable with Skinner, the majority fails to apply the
requisite level of deference to our binding precedent. “As
a three-judge panel of this circuit, we are bound by prior
panel decisions ... and can only reexamine them when
their ‘reasoning or theory’ of that authority is ‘clearly
irreconcilable’ with the reasoning or theory of intervening
higher authority.”Rodriguez v. AT & T Mobility Servs.
LLC, 728 F.3d 975, 979 (9th Cir.2013) (quoting Miller
v. Gammie, 335 F.3d 889, 893 (9th Cir.2003) (en banc)).
There is no question that “clearly irreconcilable” is a
“high standard.” Lair v. Bullock, 697 F.3d 1200, 1207 (9th
Cir.2012) (internal quotation marks and citation omitted).
Intervening higher authority is not clearly irreconcilable

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simply because there exists “ ‘some tension’ between the
intervening higher authority and prior circuit precedent” or
because “the intervening higher authority ... ‘cast[s] doubt’ on
the prior circuit precedent.”Lair, 697 F.3d at 1207 (internal
citations omitted). Indeed, even “ ‘strong[ ] signals' “ from
the Supreme Court “aren't enough” for a “three-judge panel to
overrule existing circuit precedent.” Green, 722 F.3d at 1150
(quoting Miller, 335 F.3d at 900).
*12 In Skinner, a state prisoner filed a § 1983 action alleging
that the State's refusal to release certain biological evidence
for DNA testing violated his due process rights. 131 S.Ct.
at 1296. The State sought dismissal of Skinner's complaint
on the basis that Skinner was using his § 1983 action “as
a platform for attacking his conviction”—a complaint the
State argued could “be pursued, if at all, in an application
for habeas corpus.”Id. at 1299. The Supreme Court narrowly
defined the issue implicated in Skinner, stating that the Court
was addressing only whether Skinner's claim could proceed
under § 1983, not whether the same claim hypothetically
could be brought in a habeas petition. See 131 S.Ct. at
1297. Answering the narrow question before it, the Supreme
Court held that Skinner's claim was cognizable under §
1983 because the claim did not implicate core habeas
jurisdiction.Id. at 1298. The Court reasoned that “[s]uccess
in [Skinner's] suit for DNA testing would not ‘necessarily
imply’ the invalidity of his conviction” because a conclusion
that DNA testing would ultimately prove Skinner's innocence
was anything but certain. Id. This holding reiterated what
the Court has previously held: “core” habeas claims—claims
that necessarily spell immediate or speedier release from
confinement—must be brought in habeas, while non-core
claims may be brought under § 1983. See Dotson, 544 U.S. at
81–82 (surveying governing Supreme Court authority).
The majority reads Skinner differently, concluding that a
single sentence of dicta in footnote 13 forecloses habeas
jurisdiction for all non-core claims, including claims that
closely relate to core habeas proceedings-i.e., claims that, if
successful, will not necessarily result in speedier release but
could affect the duration of confinement. See, e.g., Bostic,
884 F.2d at 1269 (expungement of a disciplinary finding if
“expungement is likely to accelerate the prisoner's eligibility
for parole”); Docken 393 F.3d at 1031 (when challenged
parole procedures “could potentially affect the duration of
[the prisoner's] confinement”)).
The majority's strained reading of Skinner hinges on the
following sentence in footnote 13: “[Wilkinson v.] Dotson

declared ... in no uncertain terms, that when a prisoner's claim
would not ‘necessarily spell speedier release,’ that claim does
not lie at ‘the core of habeas corpus,’ and may be brought, if at
all, under § 1983.” 2 Skinner, 131 S.Ct. at 1297 n. 13 (quoting
Dotson, 544 U.S. at 84). Reading this statement in isolation,
the majority creates what it coins “the Skinner standard”
and determines that “we are bound by the Court's express
statement in Skinner that relief is available to a prisoner
under the federal habeas statute only if success on the claim
would ‘necessarily spell speedier release’ from custody.”In
doing so, the majority abrogates our prior decisions in Bostic
and Docken, where our court held that a prisoner's claims
are properly brought under § 2254 so long as the claim, if
successful, would likely accelerate parole eligibility, Bostic,
884 F.2d at 1269, or “could potentially affect the duration
of ... confinement.” Docken, 393 F.3d at 1031. I believe the
majority is wrong and has exceeded its authority. 3
*13 To begin with, the “express statement” on which the
majority relies is by no means a clear statement of intent
by the Supreme Court. The sentence states that the Supreme
Court's decision in Dotson “declared ... in no uncertain terms”
that only core habeas claims can be pursued under § 2254.
This statement, however, is inherently ambiguous given that
nothing in Dotson's holding or reasoning supports the legal
conclusion. As in Skinner, Dotson involved only whether
prisoners seeking relief under § 1983 could pursue those
claims in a civil rights action or, the corollary, whether the
prisoner's claims implicated “core” habeas jurisdiction and
were therefore Heck-barred. See 544 U.S. at 82–84 (noting
prisoners can pursue relief under § 1983 without exhausting
habeas remedy when success in the suit will not necessarily
shorten the prisoner's sentence). The Court in Dotson held
that the prisoners' claims—which alleged that the state's
retroactive application of harsher parole guidelines violated
the Ex Post Facto clause—could proceed under § 1983.
Nothing in the Court's decision mandated that such claims
be brought in a civil rights action. Id. Despite the majority
relying entirely on dicta quoting the legal principle announced
in Dotson, the majority is notably silent about the fact that
Dotson itself does not support the majority's holding.
There are several additional reasons that undercut
the majority's conclusion that Skinner redefined habeas
jurisdiction. The issue in Skinner involved “only ... whether
the claim [Skinner] presses is cognizable under § 1983,”
and the case did not involve a petition for writ of habeas
corpus under § 2254, much less implicate the outer bounds
of habeas jurisdiction. See 131 S.Ct. at 1297. In fact, despite

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many opportunities to address this issue, the Supreme Court
has notably refrained from defining the scope of habeas
jurisdiction for over four decades. See Preiser, 411 U.S. at
500. Ironically, the majority's conclusion that Skinner finally
answers this open question conflicts with the very footnote
on which the majority's holding relies. The footnote expressly
cautions against reading Skinner to “mov[e] the line” drawn
by the Court's earlier decisions. 131 S.Ct. at 1299 n. 13
(“Given the importance of providing clear guidance to the
lower courts, ‘we again see no reason for moving the line our
cases draw.’ “ (quoting Dotson, 544 U.S. at 84)).
Given the narrow issue before the Court in Skinner, and the
Court's explicit limitation in footnote 13 that its decision
was not intended to forge new law, I cannot agree with the
majority that the ambiguous footnote in Skinner mandates a
departure from our case law. 4

II
We review de novo a district court's decision to deny a petition
for habeas corpus. Bailey v. Hill, 599 F.3d 976, 978 (9th
Cir.2010). Because Skinner does not abrogate our case law
defining the scope of habeas jurisdiction, these consolidated
appeals are governed by the law of this circuit. With
respect to Matta Juan Santos's appeal, the majority agrees
that Skinner“is not ‘clearly irreconcilable’ with our earlier
determination that we have habeas jurisdiction over a claim
that would result in release from disciplinary segregation
to the general prison population.”Majority at 25. I therefore
concur in Section III.B. of the majority opinion, which
reverses the district court's dismissal for lack of jurisdiction
and remands for the district court to consider the merits of
Santos's habeas petition. Because I disagree that the majority's
newly created “Skinner standard” governs Nettles's appeal, I
write separately and evaluate Nettles's claim under our court's
established authority. Applying controlling circuit authority,
I would reverse the district court's order of dismissal because
Nettles has sufficiently alleged a claim cognizable under §
2254.

A
*14 Damous Nettles, who is a California state prisoner
serving an indeterminate life term for the heinous crimes
described at length in the majority opinion, majority at 5–8,
challenges a disciplinary finding in his prison record, which

concluded that Nettles threatened to stab a correctional officer
on February 26, 2008. In his federal habeas petition, Nettles
argues that he was denied the opportunity to defend against
the allegation because prison officials falsified evidence
and refused to allow Nettles to present testimony from
exculpatory witnesses, in violation of his constitutional rights.
As a result of this disciplinary finding, Nettles was placed in
segregated housing for four months, and he lost thirty days of
post-conviction credit.
The February 26, 2008 violation, and others, was considered
by the parole board a year later, on July 30, 2009, when
the board convened for a parole suitability hearing and
determined that Nettles was not suitable for parole because
he “still pose[d] an unreasonable risk of danger if released
from prison.”Under California law, if a prisoner is deemed
unsuitable for parole, the board has discretion to determine
when to schedule the next hearing—either 3, 5, 7, 10, or 15
years after the hearing at which parole is denied.Cal.Penal
Code § 3041.5(b)(3). Without analysis, the board set Nettles'
next parole hearing for 2019—ten years later.
In his federal habeas petition, Nettles asserts that “before
the 2008 [violation] for threatening an officer, Nettles had
gone a full decade without any disciplinary action for drugs
or violence; if he is able to expunge the [violation], he
would take to the Board today fifteen years free of any
actions relating to drugs or violence.”He asserts that because
the parole board must consider serious rule violations as a
factor tending to show the prisoner is unsuitable for parole,
Cal.Code Regs. tit. 15, § 2402(c)(6), expungement of his vile
2008 offense would result in a “significant change in evidence
probative of his current dangerousness.”Nettles also contends
that expungement will likely advance his next parole hearing
because he will be able to show a “change in circumstances
or new information” related to his current dangerousness.
SeeCal. Pen.Code § 3041.5(d)(1).
Nettles could be right; he could also be wrong. But, adhering
to our binding precedent, the question before us is not
what the parole board will ultimately decide should Nettles
successfully expunge his 2008 rules violation or what we
would do if we were sitting as parole commissioners. Indeed,
“[w]e are ill-inclined ... to substitute our substantive analysis
of the likely outcome of [Nettles]' parole hearings for that
of the Board.” Docken, 393 F.3d at 1031. The question
before us is only whether Nettles' claim, if successful,
“could potentially affect the duration of ... confinement.” Id.
(emphasis in original). Although Nettles' 2008 disciplinary

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violation for threatening to stab a prison official was not
the only, or even the primary, reason the board denied
Nettles parole, expungement of the offense nonetheless could
potentially affect the length of his confinement. Nettles
does not allege that expungement would have caused the
board to grant him parole in 2009. Rather, he contends that
expunging the offense will likely accelerate his next parole
hearing by changing the circumstances relevant to his current
dangerousness; instead of his prison record reflecting a threat
to murder a correctional officer in 2008, Nettles' record will
demonstrate that he has not been involved in a drug or violent
offense in fifteen years. Under these circumstances, “[i]t is
certainly at least possible that [Nettles'] suit would impact
the duration of his confinement,” if the 2008 violation is
expunged from his record. See Docken, 393 F.3d at 1031.
Because Nettles has established a sufficient link between
success in his claim and the duration of his confinement,
I would reverse the district court's order of dismissal and
remand for the court to address the merits of Nettles' claim in
the first instance.
*15 For the foregoing reasons, I respectfully disagree with
the majority that the footnote of dicta in Skinner redefines
the scope of habeas jurisdiction and abrogates our prior
decisions in Bostic and Docken.Although I agree with the
majority's determination that Santos's claim may be brought
under § 2254, I disagree that Nettles petition fails to assert
a cognizable habeas claim. I would therefore reverse and
remand in both cases because Santos and Nettles have each
asserted a cognizable habeas claim under the law of our
circuit. See Docken, 393 F.3d at 1031. I believe the majority's
conclusion to the contrary exceeds the authority granted to a
three judge panel of this Court.
1

These appeals are ordered consolidated for purposes of
this disposition.

2

At the time of the hearing, the Board was referred to
as the Board of Prison Terms. This entity was replaced
by the Board of Parole Hearings in 2005. SeeCal. Gov't
Code § 12838.4.

3

As the state acknowledges, it did not argue to the district
court that Nettles's claim was procedurally barred. Nor
does the state raise this issue on appeal. Therefore, we
do not address it.

4

Section 1983 provides that: “Every person who, under
color of [state law] ... subjects, or causes to be subjected,
any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured ....“ 42 U.S.C.
§ 1983.

5

Heck v. Humphrey further limited the scope of § 1983,
holding that claims for damages that necessarily imply
the invalidity of a conviction or sentence are cognizable
under § 1983 only if the plaintiff proves that the
conviction or sentence has been reversed, expunged,
or declared invalid. 512 U.S. 477, 486–87, 114 S.Ct.
2364, 129 L.Ed.2d 383 (1994). In establishing this
“favorable termination” rule, the Court reasoned that
the sort of action described in Heck is most closely
analogous to the common-law cause of action for
malicious prosecution, which requires “termination of
the prior criminal proceeding in favor of the accused.”Id.
at 484.

6

The Court previously indicated that a claim that does
not imply the invalidity of the underlying conviction or
“necessarily” affect the duration of time to be served,
is not a claim on which habeas relief can be granted.
Muhammad v. Close, 540 U.S. 749, 754–55, 124 S.Ct.
1303, 158 L.Ed.2d 32 (2004) (per curiam). In Close,
the Supreme Court limited the applicability of Heck
by holding that its favorable termination requirement
was not applicable, and the prisoner could bring a §
1983 claim, when the prisoner challenged administrative
determinations that did not “raise any implication
about the validity of the underlying conviction” or
“necessarily” affect “the duration of time to be served,”
because such a challenge “raised no claim on which
habeas relief could have been granted on any recognized
theory.”Id.

7

The dissent argues that we are not bound by Skinner's
distinction between claims that may be brought in
a habeas action and those that may be brought in
a § 1983 claim because Skinner's interpretation of
Dotson is wrong. But, of course, we are bound by the
Supreme Court's statements and its characterization of
its own precedent, regardless whether we believe our
interpretation of its precedents is superior. Cf. Hart v.
Massanari, 266 F.3d 1155, 1171 (9th Cir.2001) (“A
decision of the Supreme Court will control that corner
of the law unless and until the Supreme Court itself
overrules or modifies it. Judges of the inferior courts
may voice their criticisms, but follow it they must.”);
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490
U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989)
(“If a precedent of this Court has direct application in a
case, yet appears to rest on reasons rejected in some other
line of decisions, the Court of Appeals should follow the

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case which directly controls, leaving to this Court the
prerogative of overruling its own decisions.”).

8

The dissent complains that our reading of Skinner is
“strained,” but our interpretation is consistent with the
interpretation adopted by two prior panels. See Blair, 645
F.3d at 1157–58; Griffin, 741 F.3d at 17 & n. 15.

9

The clarity provided by Skinner's distinction between
habeas and § 1983 actions not only provides guidance to
prisoners regarding the correct form of action for their
claims, but also resolves much of the understandable
confusion of prison officials regarding which prisoner
claims are cognizable in habeas. In these appeals, for
instance, the state argued in favor of interpreting Skinner
as precluding habeas petitions for claims that do not lie
at the core of habeas, even though such a rule channels
prisoner claims towards the more flexible § 1983 cause
of action. In Skinner itself, by contrast, the state took
the opposite position, urging that an action raising a due
process claim relating to DNA testing was at “the core of
the criminal proceeding itself” and had to be brought in
habeas. 131 S.Ct. at 1299 n. 13 (quoting oral argument
transcript).

corpus context,” whereas the Eighth, Fifth, Seventh,
Ninth, and Tenth Circuits held that habeas petitions
are not “appropriate procedural vehicles by which to
remedy conditions-of-confinement claims.”Id. Skinner
goes a long way towards resolving this circuit split
by holding that relief is available to a prisoner under
the federal habeas statute only if success on the claim
would “necessarily spell speedier release from custody,”
including termination of custody, acceleration of the
future date of release from custody, or reduction of
the level of custody. See Griffin, 741 F.3d at 17
& n. 15. But cf. Aamer v. Obama, 742 F.3d 1023,
1026 (D.C.Cir.2014) (concluding, after Skinner was
decided but without discussing it, that challenges to the
conditions of confinement “properly sound in habeas
corpus”).

10

11

After concluding it had no need to address the validity
of an order releasing a prisoner from disciplinary
segregation, Griffin nevertheless noted in passing that
Skinner now precluded such an order from issuing in a
habeas petition. See Griffin, 741 F.3d at 17–18 & nn.
14–15. While we agree with Griffin's conclusion that
Skinner precludes a prisoner from challenging conditions
of confinement in habeas, we disagree with Griffin's
extension of this rule to preclude habeas challenges to
quantum changes in levels of custody. Because Griffin
uttered this overly restrictive gloss on Skinner “casually
and without analysis,” and “in passing without due
consideration of the alternatives” as “a prelude to another
legal issue that command[ed] the panel's full attention,”
it is not binding precedent in our circuit. In re Wal–
Mart Wage & Hour Emp't Practices Litig., 737 F.3d
1262, 1268 n. 8 (9th Cir.2013); see also In re Magnacom
Wireless, LLC, 503 F.3d 984, 993–94 (9th Cir.2007).
Prior to Skinner, there was a circuit split over “the
question of the propriety of using a writ of habeas corpus
to obtain review of the conditions of confinement, as
distinct from the fact or length of confinement.”Spencer
v. Haynes, 774 F.3d 467, 470–71 & n. 6 (8th Cir.2014)
(quoting Bell v. Wolfish, 441 U.S. 520, 526 n. 6, 99 S.Ct.
1861, 60 L.Ed.2d 447 (1979)). As explained in Spencer,
the D.C., Second, Third, Fourth, and Sixth Circuits
“firmly [stood] in the camp of allowing conditionsof-confinement claims to be brought in the habeas

12

Because we conclude that Santos's claim that his gang
validation resulted in an increased level of custody
is sufficient to render the claim cognizable under the
federal habeas statute, we need not address Santos's
additional argument that his claim is cognizable because
his gang validation also effectively deprived him of any
meaningful opportunity for release on parole and resulted
in the loss of the right to earn good-time credit.

1

See Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct.
1827, 36 L.Ed.2d 439 (1973) (declining to address the
“limits of habeas corpus as an alternative remedy to a
proper action under [42 U.S.C.] § 1983”).

2

Footnote 13, in its entirety, reads as follows:
Unlike the parole determinations at issue in
Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242,
161 L.Ed.2d 253 (2005), Switzer urges, claims like
Skinner's require inquiry into the State's proof at
trial and therefore lie at “the core of the criminal
proceeding itself.”Tr. of Oral 41; see id., at 33–34.
Dotson declared, however, in no uncertain terms,
that when a prisoner's claim would not “necessarily
spell speedier release,” that claim does not lie at
“the core of habeas corpus,” and may be brought,
if at all, under § 1983. 544 U.S., at 82, 125 S.Ct.
1242, 161 L.Ed.2d 253 (majority opinion) (internal
quotation marks omitted); see id., at 85–86, 544
U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (Scalia,
J., concurring). Whatever might be said of Switzer's
argument were we to recast our doctrine, Switzer's
position cannot be reconciled with the line our
precedent currently draws. Nor can the dissent's
advocacy of a “retur[n] to first principles.” Post,
at 1303–1304. Given the importance of providing
clear guidance to the lower courts, “we again see no

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direct appeal on the merits, prompting the panel in
Blair to dismiss the claim as moot. Id . The panel's
mootness holding renders its subsequent discussion of
habeas jurisdiction an advisory opinion. See Church
of Scientology of Cal. v. United States, 506 U.S. 9,
12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (“[A]
federal court has no authority ‘to give opinions upon
moot questions or abstract propositions, or to declare
principles or rules of law which cannot affect the
matter in issue in the case before it.’ “ (quoting Mills v.
Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293
(1895)); see also U .S. ex rel. Bledsoe v. Cmty. Health
Sys., Inc., 501 F.3d 493, 507 (6th Cir.2007).
Materially, in their brief discussions of habeas
jurisdiction, Blair and Griffin did not cite to a single
Ninth Circuit habeas case, much less decide that
Bostic and Docken are clearly irreconcilable with
Skinner.The majority exceeds its authority by reaching
this conclusion today. See Green, 722 F.3d at 1150.

reason for moving the line our cases draw.”Dotson,
544 U.S., at 84, 125 S.Ct. 1242, 161 L.Ed.2d 253.
Skinner, 131 S.Ct. at 1299 n. 13.

3

Notably, the majority justifies its interpretation of
Skinner by arguing that its opinion is “consistent with the
interpretation adopted by two prior panels.”Majority at
18 n. 8 (citing Blair, 645 F.3d at 1157–58; Griffin, 741
F.3d at 17 & n. 15). The majority's reliance on these cases
is curious, and most certainly misplaced, particularly
because Griffin's brief mention of habeas jurisdiction
appears to conflict with the majority's holding in Santos's
appeal. Griffin involved a California state prisoner
who, like Santos, was a validated gang member who
challenged his placement in the prison's segregated
security housing unit. 741 F.3d at 11. In a 2006 order,
the district court granted Griffin's habeas petition and
ordered that he be released from segregated housing. Id.
at 14. The order was too late; Griffin had been charged
in a federal RICO case and was in federal, not state,
custody. Id. Griffin was subsequently transferred back
to state prison and he sought enforcement of the 2006
order. “Procedurally,” the case before this Court was “a
mess.” Id. at 17. Relevant here is the Griffin panel's dicta
involving the 2006 order, where the panel stated that
although the Ninth Circuit had previously held that such
orders could issue on habeas, “the Supreme Court has
since held otherwise.”Id. at 17 & n. 15 (citing Skinner,
131 S.Ct. at 1299 n. 13). Here, the majority contends its
interpretation of Skinner “is consistent” with Griffin's,
but the majority's holding in Santos, where the petitioner
seeks relief identical to the relief issued in the 2006 order,
is in direct conflict with Griffin's dicta. Majority at 25
(“The Court has long indicated that a prisoner's claim
for release from one form of custody to another, less
restrictive form of custody, can be brought in a habeas
petition.”); id. at 27–28 (Santos's “claim that he has been
subjected to greater restrictions of his liberty without due
process of law is therefore properly brought as a petition
for a writ of habeas corpus.”).
The majority's reliance on Blair is no more
compelling. In Blair, a habeas petitioner argued that
his right to due process was violated because the
California Supreme Court was taking too long to
resolve his direct appeal. 645 F.3d at 1153. By the time
the claim reached the Ninth Circuit, the California
Supreme Court had already affirmed the petitioner's

End of Document

4

To support its holding, the majority cites a number
of pragmatic reasons for adopting its interpretation
of Skinner.For example, the majority contends that
its holding “not only provides guidance to prisoners
regarding the correct form of action for their claims,
but also resolves much of the understandable confusion
of prison officials regarding which prisoner claims are
cognizable in habeas.”Majority at 19 n. 9. I agree that
the majority's holding draws a clear distinction between
habeas jurisdiction and jurisdiction under § 1983 that will
be easier to implement than our current jurisprudence.
But no matter how practical the majority's rule may
be, and regardless of whether the Supreme Court will
someday agree with the majority, the single sentence
of dicta in Skinner does not give a three-judge panel
authority to overrule the law that binds us now. See
State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275,
139 L.Ed.2d 199 (1997) (court of appeals “was correct”
in adhering to binding precedent despite recognizing an
“infirm[ ]” Supreme Court decision that the court of
appeals rightly predicted would be overturned by the
Supreme Court).

Parallel Citations
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5808
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