Rouser v. Sullivan

Filing 26

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 06/16/20 RECOMMENDING that petitioner's motion for relief from judgment 23 be denied. Motion 23 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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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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Introduction
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. Pending before the court is petitioner’s motion for relief

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judgment pursuant to Federal Rule of Civil Procedure 60(b)(6). (ECF No. 23.) For the reasons

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stated herein, the undersigned recommends that petitioner’s motion be denied.

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Background

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Petitioner challenges a 2017 prison disciplinary conviction for use of a controlled

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substance based solely on a positive test result. Petitioner alleges that the disciplinary hearing

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officer violated his right to due process by removing petitioner from the hearing, which prevented

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petitioner from presenting evidence regarding false positive results.

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On November 15, 2018, respondent filed a motion to dismiss on the grounds that there
was no habeas jurisdiction. (ECF No. 14.) On May 1, 2019, the undersigned recommended that
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respondent’s motion to dismiss be granted. (ECF No. 18.) In relevant part, the undersigned

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found that petitioner’s challenge to the at-issue disciplinary conviction did not lie at the core of

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habeas corpus because he could not show that its expungement would necessarily result in a grant

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of parole or shorten his incarceration. (Id. at 2.) On July 11, 2019, the district court adopted the

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May 1, 2019 findings and recommendations and judgment was entered. (ECF Nos. 21, 22.)

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On April 15, 2020, petitioner filed the pending motion for relief from judgment. (ECF

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No. 23.) Petitioner argues that on April 2, 2020, the Board of Parole Hearings (“BPH”) denied

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petitioner parole for ten years. (Id.) Petitioner argues that the disciplinary conviction challenged

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in the instant action “played a big part” in the BPH’s decision. (Id.)

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On April 23, 2020, the undersigned ordered petitioner to file a copy of the transcript from

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the April 2, 2020 parole suitability hearing. (ECF No. 24.) On May 26, 2020, petitioner filed a

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copy of this transcript. (ECF No. 25.)

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Discussion

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Petitioner moves for relief from judgment pursuant to Federal Rule of Civil Procedure

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60(b)(6), which provides that a court may relieve a party from final judgment for any reason that

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justifies relief.

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As stated in the May 1, 2019 findings and recommendations, a prisoner’s claim which, if

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successful, would not necessarily lead to immediate or speedier release falls outside the “core of

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habeas corpus” and must be pursued in an action brought pursuant to 42 U.S.C. § 1983. Nettles

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v. Grounds, 830 F.3d 922, 934 (9th Cir. 2016). Under California law, the parole board is not

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required to find petitioner suitable or unsuitable for parole based on any single factor. Id. at 935.

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

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

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one of the factors shedding light on whether a prisoner ‘constitutes a current threat to the public

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

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deny parole “on the basis of any of the grounds presently available to it.” Id. (quoting Ramirez v.

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Galaza, 334 F.3d 850, 859 (9th Cir. 2003).) As a result, “the presence of a disciplinary infraction

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does not compel the denial of parole, nor does the absence of an infraction compel the grant of
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parole.” Id.

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As discussed above, the court granted respondent’s motion to dismiss because it found

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that petitioner’s challenge to the at-issue 2017 prison disciplinary conviction did not lie at the

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core of habeas corpus because petitioner could not show that its expungement would necessarily

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result in a grant of parole.

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In the pending motion, petitioner argues that the BPH found him unsuitable for parole on

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April 2, 2020 largely based on his at-issue 2017 prison disciplinary conviction. After reviewing

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the transcript from the April 2, 2020 parole suitability hearing, the undersigned finds that the at-

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issue 2017 prison disciplinary conviction did not compel the denial of parole.

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In its statement of the decision finding petitioner unsuitable for parole on April 2, 2020,

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the BPH cited several factors. First, the BPH discussed petitioner’s extensive criminal history.

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(ECF No. 25 at 57-58.) Second, the BPH stated that petitioner had problems with substance

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abuse related issues that had not been addressed. (Id. at 58.) Third, the BPH stated that

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petitioner’s attitudes and beliefs demonstrated unsuitability. (Id. at 58-59.) Fourth, the BPH

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stated that petitioner’s institutional behavior, which included 34 rules violations, did not

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demonstrate suitability. (Id. at 59-61.)

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Based on all the reasons given by the BPH on April 2, 2020 for finding petitioner

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unsuitable for parole, it is clear that expungement of the at-issue 2017 prison disciplinary

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conviction would not necessarily result in a grant or parole or shorten petitioner’s incarceration.

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For these reasons, petitioner’s motion for relief from judgement should be denied.

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Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s motion for relief from
judgment (ECF No. 23) be denied.

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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, petitioner 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). Petitioner is advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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Dated: June 16, 2020

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Rou1659.req

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