Tyson v. MacComber

Filing 11

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 6/19/2017 RECOMMENDING respondent's 8 motion to dismiss be granted. Referred to Judge John A. Mendez; Objections to F&R due within 21 days.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMMY RAY TYSON, SR.,

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Petitioner,

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v.

No. 2:16-cv-2494 JAM AC P

FINDINGS AND RECOMMENDATIONS

JEFF MACCOMBER,

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Respondent.

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Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to

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28 U.S.C. § 2254. Now pending before the court is respondent’s motion to dismiss (ECF No. 8)

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which argues that the petition fails to state a cognizable federal habeas claim. Petitioner has

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responded to the motion (ECF No. 9) and respondent has filed a reply (ECF No. 10). After

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review of the pleadings, the court recommends that respondent’s motion be granted.

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I.

Background
Petitioner was assessed a thirty day loss of credit on June 13, 2015 for disrespecting

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prison staff. ECF No. 1 at 1. He filed a petition for writ of habeas corpus in the Sacramento

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County Superior Court in which he argued that staff should have given him a verbal warning in

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lieu of a loss of credit. Id. at 28. The superior court rejected petitioner’s claims in a reasoned

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decision. Id. at 28-31. Petitioner then raised this claim in the state court of appeal and the

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California Supreme Court, both of which summarily denied his petition. Id. at 33, 36.
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The federal petition raises two claims. First, petitioner argues that the prison hearing

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officer erroneously assessed a loss of credit penalty for a “lesser included offense” after finding

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him innocent of threatening a peace officer. Id. at 4. He claims that the appropriate penalty for

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the offense of which he was found guilty – disrespecting staff – was a verbal warning. Id.

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Second, petitioner argues that his disciplinary finding for disrespecting staff was not supported by

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sufficient evidence. Id. at 6.

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II.

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Applicable Legal Standards
In the context of federal habeas claims, a motion to dismiss is construed as arising under

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rule 4 of the Rules Governing Section 2254 in the United States District Courts which “explicitly

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allows a district court to dismiss summarily the petition on the merits when no claim for relief is

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stated.” O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (quoting Gutierrez v. Griggs,

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695 F.2d 1195, 1198 (9th Cir. 1983)). Accordingly, a respondent is permitted to file a motion to

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dismiss after the court orders a response, and the court should use Rule 4 standards in reviewing

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the motion. See Hillery v. Pulley, 533 F. Supp. 1189, 1194 & n. 12 (E.D. Cal. 1982). Rule 4

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specifically provides that a district court may dismiss a petition if it “plainly appears from the

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face of the petition and any exhibits annexed to it that petitioner is not entitled to relief in the

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district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. The court may, however,

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take judicial notice of court records and does so here. See Porter v. Ollison, 620 F.3d 952, 954-55

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(9th Cir. 2010).

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III.

Analysis
In Nettles v. Grounds, the Ninth Circuit held that federal habeas relief is only available to

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a prisoner if his claim lies at the core of habeas corpus – that is, if success on his claim would

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“necessarily lead to . . . immediate or earlier release from confinement.” 830 F.3d 922, 930-31,

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935 (9th Cir. 2016). In Nettles, the appellate court concluded that the petitioner, who was an

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inmate serving a determinate term of twelve years and a life term with the possibility of parole,

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would not necessarily be entitled to a speedier release if his challenged disciplinary violation

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were expunged. Id. at 925, 934-35. This was because the disciplinary violation was merely one

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factor which the parole board could consider in deciding whether to grant parole. Id. at 935.
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The present petition is foreclosed by Nettles. Petitioner is serving an indeterminate

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sentence of twenty-five years to life. ECF No. 8 at 6. Thus, like the petitioner in Nettles, he does

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not have a fixed release date and will be released only if and when the parole board determines he

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is suitable for parole. Cal. Penal Code § 3041; Cal. Code Regs. Tit. 15, § 2402. Expungement of

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his disciplinary violation would not necessarily lead to his speedier or immediate release. In his

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response, petitioner argues that “[o]ne of the main factors” by which parole suitability is

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determined is an inmate’s disciplinary record. ECF No. 9 at 2. This is undoubtedly true, but it

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cannot be said that he would necessarily be paroled (or necessarily be granted quicker parole) if

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his conviction were expunged. Success in this petition would merely increase petitioner’s

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chances of parole. Nettles explicitly noted that its adoption of the “core of habeas” standard was

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partially motivated by a desire to sidestep the sort of probability analysis which previously

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required courts to “guess at the discretionary decisions of state officials in order to determine

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whether an action sounds in habeas . . . .” 830 F.3d at 934.

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IV.

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Conclusion
Accordingly, it is RECOMMENDED that respondent’s motion to dismiss (ECF No. 8) be

granted.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty one days

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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.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In

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his objections petitioner may address whether a certificate of appealability should issue in the

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event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing

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§ 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a

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final order adverse to the applicant).

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DATED: June 19, 2017

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