Garcia v. Baughman

Filing 16

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 5/23/2018 GRANTING 10 at 2 n.1 Respondent's request for judicial notice and RECOMMENDING 10 Motion to Dismiss be granted and this action be dismissed without prejudice to filing a civil rights action. Referred to Judge Troy L. Nunley. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAUL F. GARCIA,

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Petitioner,

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No. 2:17-cv-2529 TLN KJN P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

DAVID BAUGHMAN,

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Respondent.

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I. Introduction
Petitioner is a state prisoner, proceeding without counsel. Petitioner challenges a 2016

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prison disciplinary. Respondent moves to dismiss for failure to state a cognizable habeas claim.

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Petitioner filed an opposition. No reply was filed. As set forth below, the undersigned

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recommends that the motion to dismiss be granted, and this action be dismissed without

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prejudice.

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II. Background
Petitioner is serving an indeterminate sentence of 25 years to life in state prison.1 (ECF

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No. 1 at 2.) On May 13, 2016, petitioner was found guilty of a prison disciplinary violation,

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constructive possession of a cell phone, and assessed a 90-day loss of custody credit. (ECF No. 2

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In 1984, petitioner was convicted of first degree murder, assault with a deadly weapon,
attempted robbery, and grand theft auto. (ECF No. 10-1 at 2-3.)
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at 33-40.) Petitioner challenged the prison disciplinary conviction through all three levels of

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administrative review. (ECF No. 10-4 at 37-45.)

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Subsequently, petitioner filed petitions for writs of habeas corpus in the Sacramento

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County Superior Court, the California Court of Appeal, and the California Supreme Court; all of

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these petitions were denied. (ECF No. 2 at 50-56.) See also In re Raul Garcia on Habeas Corpus,

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No. C084256 (Cal. Ct. Appeal, 3rd Dist. April 3, 2017); Garcia (Raul) on Habeas Corpus, No.

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S242055 (Cal. Aug. 9, 2017).2

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On December 1, 2017, petitioner filed the instant petition, arguing that the disciplinary

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hearing officer failed to conduct the hearing using the “constructive possession” test, violating

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petitioner’s due process rights, and there was not “some evidence” to support the guilty finding.

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(ECF No. 2 at 21-26.)

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III. Motion to Dismiss

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A. Legal Standards

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Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a

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petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the

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petitioner is not entitled to relief in the district court. . . .” Id. The Court of Appeals for the Ninth

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Circuit has referred to a respondent’s motion to dismiss as a request for the court to dismiss under

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Rule 4 of the Rules Governing § 2254 Cases. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420

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(1991). Accordingly, the court reviews respondent’s motion to dismiss pursuant to its authority

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under Rule 4.
In light of petitioner’s challenges to a prison disciplinary conviction, the following legal

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standards are also applicable.

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Respondent’s request for judicial notice (ECF No. 10 at 2 n.1) is granted. The court may take
judicial notice of facts that are “not subject to reasonable dispute because it . . . can be accurately
and readily determined from sources whose accuracy cannot reasonably be questioned,” Fed. R.
Evid. 201(b), including undisputed information posted on official websites. Daniels-Hall v.
National Education Association, 629 F.3d 992, 999 (9th Cir. 2010). It is appropriate to take
judicial notice of the docket sheet of a California court. White v. Martel, 601 F.3d 882, 885 (9th
Cir. 2010). The address of the official website of the California state courts is
www.courts.ca.gov.
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It is well established that prisoners subjected to disciplinary action are entitled to certain

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procedural protections under the Due Process Clause, although they are not entitled to the full

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panoply of rights afforded to criminal defendants. See Wolff v. McDonnell, 418 U.S. 539, 556

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(1974); see also Superintendent v. Hill, 472 U.S. 445, 455-56 (1985); United States v. Segal, 549

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F.2d 1293, 1296-99 (9th Cir.) (observing that prison disciplinary proceedings command the least

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amount of due process along the prosecution continuum), cert. denied, 431 U.S. 919 (1977).

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A prisoner is entitled to advance written notice of the charges against him as well as a written

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statement of the evidence relied on by prison officials and the reasons for the disciplinary action. See

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Wolff, 418 U.S. at 563. A prisoner also has a right to a hearing at which he may “call witnesses and

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present documentary evidence in his defense when permitting him to do so will not be unduly

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hazardous to institutional safety or correctional goals.” Id. at 566; see also Ponte v. Real, 471 U.S.

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491, 495 (1985). An investigative officer may be required to assist prisoners who are illiterate or

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whose case is particularly complex. Wolff, 418 U.S. at 570. The disciplinary hearing must be

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conducted by a person or body that is “sufficiently impartial to satisfy the Due Process Clause.” Id. at

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571. Finally, the decision rendered on a disciplinary charge must be supported by “some evidence” in

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the record. Hill, 472 U.S. at 455.

In Nettles, the Ninth Circuit Court of Appeals held that “if a state prisoner’s claim does

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not lie at ‘the core of habeas corpus,’ it may not be brought in habeas corpus but must be brought,

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‘if at all,’ under § 1983[.]” Nettles, 830 F.3d at 931, 934 (citations omitted). In Nettles, the court

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found that success on the merits of the petitioner’s challenged disciplinary proceeding would not

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necessarily impact the fact or duration of his confinement, and therefore his challenge did not fall

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within “the core of habeas corpus.” Id. The court reasoned that “[s]uccess on the merits of

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Nettles’ claim would not necessarily lead to immediate or speedier release because the

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expungement of the challenged disciplinary violation would not necessarily lead to a grant of

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parole.” Nettles, 830 F.3d at 934-35. However, the court left open the possibility that petitioner’s

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claims could be brought in a civil rights action under 42 U.S.C. § 1983.

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B. The Parties’ Positions

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Respondent argues that petitioner’s claims are not cognizable on federal habeas review

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because they do not implicate the fact or duration of his confinement. (ECF No. 10 at 2.)

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Petitioner is serving a sentence of 25 years to life in prison and will be released when the

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California Board of Parole Hearings (“Board”) determines that he no longer poses an

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unreasonable risk of danger to public safety. Therefore, respondent argues that expunging the

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prison disciplinary and restoring petitioner’s lost custody credits will not necessarily result in a

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shorter period of incarceration. Respondent contends that petitioner’s challenge is similar to the

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prisoner in Nettles v. Grounds, 630 F.3d 922 (9th Cir. 2016) (en banc), and therefore should be

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dismissed.

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In opposition, petitioner contends that the circumstances of Nettles differs substantially

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from petitioner’s case. Petitioner argues that the Ninth Circuit did not conclude that the habeas

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claim did “not fall within the core of habeas corpus” simply because Nettles did not have a fixed

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release date from prison. Rather, the court noted Nettles’ extensive disciplinary history, the

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nature of Nettles’ commitment offense, Nettles’ extensive criminal history, and a range of factors

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reflecting Nettles’ future dangerousness, including his inability to learn from prior

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imprisonments, lack of insight and remorse, and his argumentative and stubborn attitude. (ECF

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No. 14 at 4.) By contrast, petitioner argues that he has been incarcerated since he was 16, does

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not have an extensive prior criminal history; has demonstrated insight and remorse; has

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established a parole plan, a relapse plan, and has many letters in support of his release; has

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attained a high school diploma and computer literacy certificate; and is enrolled in several

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rehabilitative programs. (ECF No. 14 at 4.) Petitioner contends that the sole reason left for

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finding petitioner unsuitable for parole is the prison disciplinary at issue in this case. Finally,

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petitioner argues that habeas review is also appropriate because he is now denied “annual

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postconviction credit” under 15 C.C.R. § 2410(a). (ECF No. 14 at 5.)

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D. Discussion

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Petitioner’s efforts to distinguish Nettles are unavailing. The Ninth Circuit has squarely

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rejected petitioner’s argument that a prison disciplinary conviction affects an inmate’s parole
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eligibility. Nettles. In California, parole is at the discretion of the Board. Nettles, 830 F.3d at

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935. When considering whether to grant parole, a prison disciplinary is just one of several factors

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the Board considers. Id. Thus, even though petitioner’s situation may be materially different

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from the prisoner in Nettles, there are numerous other factors the Board takes into account before

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granting parole. Cal. Code Regs. tit. 15, § 2281 (information and circumstances considered in

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determining parole suitability). While petitioner lists a number of factors he believes he has met,

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and is commended for such actions, it is unclear whether the Board might rely on other factors to

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deny parole, or whether the Board might believe petitioner needs more time in the programs

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previously required by the Board. Indeed, the Board may deny or grant parole regardless of

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whether a prisoner has a prison disciplinary conviction, or the number of such convictions. See

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Nettles, 830 F.3d at 935. Thus, because an expungement of the prison disciplinary conviction

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does not guarantee an earlier release from prison, such claims do not fall within “‘the core of

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habeas corpus,’” making the claims not cognizable in habeas. Id. (citation omitted).

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Petitioner fails to demonstrate that his term of incarceration will be shortened or

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terminated if he is successful on his federal due process claims. Nothing in the petition and

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exhibits suggests that petitioner, who is serving a sentence of 25 years to life, would serve a

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shorter sentence in the absence of the 90-day credit loss imposed as a result of his disciplinary

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conviction. “If the invalidity of the disciplinary proceedings, and therefore the restoration of

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good-time credits, would not necessarily affect the length of time to be served, then the claim

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falls outside the core of habeas and may be brought in § 1983.” Nettles, 830 F.3d at 929 (fn.

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omitted) (citing Muhammad v. Close, 540 U.S. 749, 754-55 (2004)).3
Petitioner’s challenge under California Code of Regulations § 2410 (ECF No. 14 at 4-5)

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fails for the same reason. Whether or not petitioner is granted the credits due under prison

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regulations, his release on parole hinges on the Board’s review of multiple factors, rendering

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“[W]here. . . a successful § 1983 action would not necessarily result in an earlier release from
incarceration. . . the favorable termination rule of Heck and Edwards does not apply.” Ramirez v.
Galaza, 334 F.3d 850, 858 (9th Cir. 2003) (citing Heck v. Humphrey, 512 U.S. 477, 483, 486-87
(1994), and Edwards v. Balisok, 520 U.S. 641, 644 (1997)). Thus, petitioner may seek § 1983
relief on his claims.
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habeas relief unavailable. Nettles, 830 F.3d at 929.

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Accordingly, the undersigned finds that respondent’s motion to dismiss should be granted

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because this action may not proceed in habeas corpus but may, potentially, proceed only under 42

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U.S.C. § 1983.

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Therefore, the next question is whether the instant petition should be construed as a civil

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rights complaint. “A district court may construe a petition for habeas corpus to plead a cause of

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action under § 1983 after notifying and obtaining informed consent from the prisoner.” Nettles,

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830 F.3d at 936. “‘If the complaint is amenable to conversion on its face, meaning it names the

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correct defendants and seeks the correct relief, the court may recharacterize the petition so long as

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it warns the pro se litigant of the consequences of the conversion and provides an opportunity for

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the litigant to withdraw or amend his or her complaint.’” Id. (quoting Glaus v. Anderson, 408

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F.3d 382, 388 (7th Cir. 2005)).

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The undersigned finds that it would be inappropriate to construe the instant petition as a

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civil rights complaint. The claims presented in the instant petition use “habeas corpus”

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terminology. The petition does not name or otherwise identify a proper civil rights defendant.

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Although it appears petitioner exhausted his administrative remedies prior to filing the instant

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action as required under 42 U.S.C. § 1997e(a), petitioner should be accorded the opportunity to

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consider the potential impact of obtaining in forma pauperis status on his claims in a civil rights

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case, as it may impact his eligibility for in forma pauperis status in future cases. See 28 U.S.C.

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§ 1915(g) (prohibiting in forma pauperis status to prisoners who have had three or more cases

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dismissed as frivolous, malicious or for failure to state a claim).

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Finally, if petitioner chooses to pursue a civil rights action, the filing fee for § 1983

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actions is $400.00. If granted in forma pauperis status, petitioner would be required to pay a

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$350.00 filing fee by way of deductions from petitioner’s inmate trust account. See 28 U.S.C.

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§ 1915(b)(1). If petitioner is not granted in forma pauperis status, he would be required to pay the

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court’s $400.00 full filing fee.

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For all of these reasons, the undersigned finds that the instant petition fails to state a
cognizable claim for habeas relief, and respondent’s motion to dismiss should be granted.
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Further, the court finds that it is inappropriate to construe the instant petition as a civil rights

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complaint. Dismissal of this action without prejudice will allow petitioner, at his discretion, to

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decide whether to pursue his claims in a new civil rights action.

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V. Conclusion

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Accordingly, IT IS HEREBY ORDERED that:

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1. Respondent’s request for judicial notice (ECF No. 10 at 2 n.1) is granted;

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2. The Clerk of the Court shall send petitioner the form for filing a civil rights action and

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an application to proceed in forma pauperis; and
IT IS RECOMMENDED that:

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1. Respondent’s motion to dismiss (ECF No. 10) be granted; and

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2. This action be dismissed without prejudice to filing a civil rights action.

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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)(l). Within fourteen 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.” If petitioner files objections,

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he shall also address whether a certificate of appealability should issue and, if so, why and as to

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which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the

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applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

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§ 2253(c)(3). Any response to the objections shall be served and filed within fourteen days after

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service of the objections. The parties are advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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Dated: May 23, 2018

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/garc2529.mtd.hc.rvr

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