Lopez v. Chappell

Filing 7

ORDER DENYING MOTION TO DISMISS; TO SHOW CAUSE by Judge William Alsup denying 4 Motion to Dismiss (Attachments: # 1 Certificate/Proof of Service) (dt, COURT STAFF) (Filed on 8/18/2014)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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JESUS LOPEZ,
Petitioner,

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ORDER DENYING MOTION TO
DISMISS; TO SHOW CAUSE

v.

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No. C 13-4797 WHA (PR)

K. CHAPPEL,
(Docket No. 4)
Respondent.

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/
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INTRODUCTION

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Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. 2254. The petition challenges disciplinary findings by prison

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officials that petitioner violated prison rules against controlled substances. The petition was

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found to state a cognizable claim for relief, and respondent was ordered to show cause why the

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petition should not be granted. Respondent has filed a motion to dismiss the petition on the

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grounds that there is no federal habeas jurisdiction over his claims, and that his claims do not

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state a viable claim for relief. Petitioner filed an opposition, and respondent filed a reply brief.
ANALYSIS

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A.

STANDARD OF REVIEW

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This court may entertain a petition for writ of habeas corpus "in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254(a); Rose

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v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading

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requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ

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of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state

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court must “specify all the grounds for relief which are available to the petitioner ... and shall

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set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of

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the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. “‘[N]otice’ pleading is not

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sufficient, for the petition is expected to state facts that point to a ‘real possibility of

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constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d
688, 689 (1st Cir. 1970)).

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For the Northern District of California

United States District Court

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B.

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LEGAL CLAIMS
In March 2010, prison officials issued a Rules Violation Report (“ RVR”) against

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petitioner for distributing controlled substances in prison. The RVR was based on findings that

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he conspired with another inmate to bring controlled substances into Deuel Vocational

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Institution, where he was housed at the time. Petitioner claims that prison officials have

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violated his right to due process because there is no evidence to support the disciplinary

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findings.

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Respondent argues that there is no federal habeas jurisdiction over petitioner’s claim

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because the RVR does not affect the fact or duration of his custody and success on his claims

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would not entitle him to speedier release. Habeas is the “exclusive remedy” for the prisoner

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who seeks “‘immediate or speedier release’” from confinement. Skinner v. Switzer, 131 S. Ct.

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1289, 1293 (2011) (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)). “Where the

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prisoner’s claim would not ‘necessarily spell speedier release,’ however, suit may be brought

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under § 1983.’” Skinner, 131 S. Ct. at 1293 (quoting Wilkinson, 544 U.S. at 82). The Ninth

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Circuit has held that “habeas jurisdiction is absent, and a § 1983 action proper, where a

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successful challenge to a prison condition will not necessarily shorten the prisoner’s sentence.”

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Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003).

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Respondent’s argues that the RVR does not affect the fact or duration of his custody
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because it did not impose a loss of time credits as part of petitioner’s punishment. However,

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petitioner, who is serving an indeterminate life sentence, shows that the RVR causes the

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California Board of Parole Hearings to withhold four months of post-conviction credits that he

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would otherwise receive. See 15 Cal. Code Regs. § 2410(b),(d) (allowing for four months of

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post-conviction credits per year of incarceration). Respondent does not dispute the loss of such

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credits, but argues that the losing post-conviction credits does is insufficient to establish federal

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habeas jurisdiction. Respondent cites no authority providing that federal habeas jurisdiction is

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absent when an inmate challenges a loss of post-conviction credits. Moreover, respondent

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acknowledges that petitioner’s “actual release date” is affected by the number of postconviction credits he is awarded (Reply 2), and there is no dispute that petitioner will lose four

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For the Northern District of California

United States District Court

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months of post-conviction credits for the year he received the RVR (id. 2-3). Under these

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circumstances, and in the absence of authority to the contrary, the loss of four months of post-

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conviction credits from the RVR means that his claims a challenge the duration of his custody

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so as to establish federal habeas jurisdiction.

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Respondent also argues that petitioner does not state a cognizable basis for federal

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habeas relief because petitioner claims a violation of only state law. See Swarthout v. Cooke,

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131 S. Ct. 859, 861-62 (2011) (federal habeas writ is unavailable for violations of state law or

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for alleged error in the interpretation or application of state law). Respondent argues that

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petitioner claims that prison officials failed to test the controlled substances, which is required

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by prison regulations but not by federal law. Respondent is correct that there is no federal law

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requiring controlled substances to be tested, but petitioner is not claiming that the failure to test

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the substances violated his right to due process. Rather, he claims that the absence of evidence

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that he distributed controlled substances violated his right to due process. The absence of test

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results is simply one of the reasons that petitioner argues there was no evidence to support the

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RVR, in addition his assertions that no narcotics were brought into the prison and that no

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narcotics were discovered in the possession of either petitioner or any alleged co-conspirator.

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Respondent acknowledges that due process does require prison officials to have at least “some

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evidence” that an inmate violated a prison rule before discipline may be imposed.
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Superintendent v. Hill, 472 U.S. 445, 455-56 (1985). Petitioner’s claim that no evidence

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supported the RVR states a cognizable claim for the violation of his right to due process. In his

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answer, ordered below, this claim of insufficient evidence is the claim respondent must address

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by identifying what evidence supported the RVR and explaining how such evidence meets the

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“some evidence” standard of Hill.

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CONCLUSION

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In light of the foregoing,

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1. The motion to dismiss (dkt. 4) is DENIED.

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2. Respondent shall file with the court and serve on petitioner, within ninety-one days
of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules

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For the Northern District of California

United States District Court

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Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be

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granted based on the claim found cognizable herein. Respondent shall file with the answer and

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serve on petitioner a copy of all portions of the state trial record that have been transcribed

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previously and that are relevant to a determination of the issues presented by the petition.

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If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the
court and serving it on respondent within twenty-eight days of the date the answer is filed.
IT IS SO ORDERED.

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Dated: August

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, 2014.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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