Ngo v. Seibel
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 4/10/2019 RECOMMENDING petitioner's 1 application for writ of habeas corpus be dismissed for lack of jurisdiction; and this court decline to issue the certificate of appealability referenced in 28 U.S.C. § 2253. Referred to Judge Troy L. Nunley; 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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KY NGO,
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No. 2:17-cv-1815 TLN AC P
Petitioner,
v.
FINDINGS AND RECOMMENDATIONS
K. SEIBEL,
Respondent.
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Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas
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corpus pursuant to 28 U.S.C. § 2254. The petition challenges a prison disciplinary proceeding
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that resulted in the loss of ninety days of time credits. ECF No. 1 at 1; ECF No. 1-1 at 65-66, 73.
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The petition indicates that petitioner is serving an indeterminate sentence, ECF No. 1-1 at
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4, and contains no allegation or evidence that he has been found suitable for parole or has a set
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parole date. Because it therefore appears from the face of the petition that success on the merits
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would not necessarily result in petitioner’s speedier release, petitioner was ordered to show cause
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why the petition should not be dismissed for lack of jurisdiction. ECF No. 7. The court
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explained that “[t]he Ninth Circuit held in Nettles v. Grounds, 830 F.3d 922, 934-35 (9th Cir.
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2016) (en banc)] that if success on the merits of a petitioner’s challenged disciplinary proceeding
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will not necessarily impact the fact or duration of his confinement, the claim does not fall within
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‘the core of habeas corpus’ and therefore may not be brought in habeas.” ECF No. 7 at 2. It was
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further explained that if petitioner was indeterminately sentenced, then “expungement of the
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challenged disciplinary conviction would not necessarily lead to a shorter sentence because even
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without the disciplinary conviction the parole board could still deny parole on other grounds
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available to it.” Id. (citing Nettles, 830 F.3d at 934-35).
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Petitioner was advised that in order to establish this court’s jurisdiction, he must explain
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how expungement of the challenged disciplinary conviction would necessarily result in his
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immediate or speedier release. Id. He was further warned that if he had not already been found
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suitable for parole, it was insufficient as a matter of law to state that the ninety days of time credit
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would result in speedier release once he was finally approved for parole, or that expungement of
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the disciplinary conviction would lead to speedier release because without that conviction on his
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record the parole board would be more likely to recommend him for parole. Id.
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In responding to the order to show cause, petitioner argues that changes to the law in
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California, which make it easier to obtain a grant of parole, have made grants to indeterminately
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sentenced inmates “as tangible as any determinate sentence.” ECF No. 13 at 2. He also argues
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that without the disciplinary violation on his record, the parole board would be more likely to find
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him suitable for parole. Id. at 2-3.
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In arguing that changes in the law make his claim cognizable in habeas, petitioner relies
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on In re Butler, 236 Cal. App. 4th 1222 (2015), which required the setting of base terms and
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adjusted base terms for life term inmates, and the changes to the youth offender laws (Senate Bills
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260 and 261) that require the parole board to give greater weight to the diminished capacity of
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youthful offenders. However, neither of these changes in the law mandates a parole suitability
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finding in a prisoner’s favor at any particular time, or converts an indeterminate sentence into a
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determinate one. Id. at 1242-44 (discussing purpose of setting base terms); People v. Franklin, 63
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Cal. 4th 261, 277-78 (2016) (explaining that the purpose of Senate Bill 260 was to bring
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California law in compliance with Miller v. Alabama, 567 U.S. 460 (2012), and made juvenile
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offenders eligible for parole consideration during their fifteenth, twentieth, or twenty-fifth year of
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incarceration, depending upon their controlling offense); In re Jenson, 24 Cal. App. 5th 266, 277
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(2018) (noting that Senate Bill 261 extended the provisions of Senate Bill 260 to individuals who
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were up to twenty-three years old at the time they committed their offense). Furthermore, the
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California Supreme Court has since overturned Butler and relieved the Board of Parole Hearings
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from calculating base terms and adjusted base terms. In re Butler, 4 Cal. 5th 728, 748 (2018).
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Petitioner’s response confirms that he is indeterminately sentenced, and that expungement
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of his disciplinary conviction makes a grant of parole more likely, at most. There is no indication
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that success on this petition will necessarily result in petitioner’s speedier release, and this court
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therefore lacks habeas jurisdiction. Nettles, 830 F.3d at 935.
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The court further declines to offer petitioner the option to convert his claims to an action
under 42 U.S.C. § 1983. The petition alleges that prison officials violated petitioner’s due
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process rights by filing two separate rules violations arising out of the same incident: one for
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possession of a cellular telephone and one for gambling/bookmaking. ECF No. 1 at 6; ECF No.
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1-1 at 10-11. However, prisoners are afforded only limited due process rights in the context of
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prison disciplinary proceedings, and petitioner’s allegations do not allege a violation of those
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limited rights. See Wolff v. McDonnell, 418 U.S. 539, 563-66, 570-71 (1974) (required due
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process includes twenty-four-hour advanced written notice of charges, written statement of
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evidence and reasons for disciplinary action, opportunity to call witnesses and present evidence if
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not a hazard to safety, assistance at the hearing if prisoner is illiterate or matter is complex, and
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sufficiently impartial fact finder); Superintendent v. Hill, 472 U.S. 445, 454 (1985) (finding of
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guilt must be “supported by some evidence in the record”).
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Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must
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issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A
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certificate of appealability may issue only “if the applicant has made a substantial showing of the
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denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
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For the reasons set forth in these findings and recommendations, a substantial showing of
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the denial of a constitutional right has not been made in this case. Therefore, no certificate of
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appealability should issue.
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Accordingly, IT IS HEREBY RECOMMENDED that:
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1. Petitioner’s application for a writ of habeas corpus be dismissed for lack of
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jurisdiction.
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2. This court decline to issue the certificate of appealability referenced in 28 U.S.C.
§ 2253.
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)(l). Within twenty-one days
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after being served with these findings and recommendations, petitioner may file written
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objections with the court. Such a document should be captioned “Objections to Magistrate
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Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Martinez v.
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Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: April 10, 2019
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