Rouser v. Sullivan

Filing 16

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 3/21/2019 RECOMMENDING that respondent's 14 motion to dismiss be granted. Referred to Judge John A. Mendez; Objections to F&R due within 14 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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WILLIAM ROUSER,

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No. 2:18-cv-1659 JAM KJN P

Petitioner,

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v.

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W.J. SULLIVAN,

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FINDINGS & RECOMMENDATIONS

Respondent.

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Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2017 prison disciplinary conviction

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for use of a controlled substance based solely on a positive test result. Petitioner alleges that the

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disciplinary hearing officer violated his right to due process by removing petitioner from the

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hearing, which prevented petitioner from presenting evidence regarding false positive test results.

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Pending before the court is respondent’s November 15, 2018 motion to dismiss on the

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grounds that there is no federal habeas jurisdiction. (ECF No. 14.) On December 3, 2018,

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petitioner filed a response to the motion to dismiss. (ECF No. 15.) For the reasons stated herein,

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the undersigned recommends that respondent’s motion to dismiss be granted.

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In 1995, petitioner was sentenced to a term of 25 years-to-life in prison. (ECF No. 1 at

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26.) On March 14, 2017, petitioner was found guilty of a prison disciplinary for use of a

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controlled substance based solely on a positive test result. (Id. at 43.) Petitioner was assessed a
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30 days credit loss. (Id. at 47.) As discussed above, in the instant petition, petitioner alleges that

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he was denied his right to due process because he was not allowed to present evidence about false

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positive results at his disciplinary hearing.

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A prisoner’s claim which, if successful, would not necessarily lead to immediate or

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speedier release falls outside the “core of habeas corpus” and must be pursued in an action

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brought pursuant to 42 U.S.C. § 1983. Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir. 2016.) In

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this case, for the reasons stated herein, restoration of petitioner’s lost credits would not guarantee

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petitioner’s earlier release from prison, as he is serving an indeterminate life sentence.

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As observed by respondent in the motion to dismiss, petitioner will be released from

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prison when the California Board of Parole Hearings determines that he is suitable. Cal. Penal

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Code, § 3041(a)(4). Under California law, the parole board is not required to find petitioner

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suitable or unsuitable for parole based on any single factor. Nettles, 830 F.3d at 935. Rather, the

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parole board must consider “’all relevant and reliable information’” in determining parole

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suitability. Id. (quoting Cal. Code Regs. tit. 15, § 2281(b).) “A rules violation is merely one of

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the factors shedding light on whether a prisoner ‘constitutes a current threat to the public safety.’”

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Id. (quoting In re Lawrence, 44 Cal.4th 1181, 1191 (2008).) The parole board may deny parole

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“on the basis of any of the grounds presently available to it.” Id. (quoting Ramirez v. Galaza, 334

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F.3d 850, 859 (9th Cir. 2003).) As a result, “the presence of a disciplinary infraction does not

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compel the denial of parole, nor does an absence of an infraction compel the grant of parole.” Id.

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Petitioner’s challenge to the disciplinary conviction does not lie at the core of habeas

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corpus because he cannot show that its expungement would necessarily result in a grant of parole

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and shorten his incarceration. Because there is no basis for finding habeas jurisdiction over

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petitioner’s due process claim, respondent’s motion to dismiss should be granted. See also

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Rouser v. Unknown, 2: 18-cv-1358 JAM EFB P (ECF No. 14) (habeas corpus petition

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challenging disciplinary conviction dismissed because it did not fall within the “core of habeas

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corpus.”)

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Accordingly, IT IS HEREBY RECOMMENDED that respondent’s motion to dismiss
(ECF No. 14) 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)(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: March 21, 2019

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Rou1659.157

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