Sheley v. Uribe et al

Filing 13

ORDER: The Report and Recommendation (Doc. 9 ) is adopted in its entirety except that the Petition for Writ of Habeas Corpus (Doc. 1 ) is dismissed without prejudice instead of dismissed with prejudice as recommended by the Magistrate Judge. Signed by Judge William Q. Hayes on 9/22/2010. (All non-registered users served via U.S. Mail Service.) (mdc)

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Sheley v. Uribe et al Doc. 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 HAYES, Judge: 17 The matter before the Court is the Report and Recommendation ("R&R") (Doc. # 9) of 18 Magistrate Judge Jan M. Adler, filed on June 21, 2010, recommending that this Court dismiss 19 Petitioner Robert Sheley's Petition for Writ of Habeas Corpus (Doc. # 1). 20 21 PROCEDURAL BACKGROUND On October 6, 2009, Petitioner filed his Petition for Writ of Habeas Corpus ROBERT SHELEY, Petitioner, vs. DOMINGO URIBE, JR., Warden, and JERRY BROWN, Attorney General of the State of California, Respondents. CASE NO. 09cv2221-WQH-JMA ORDER UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 22 pursuant to 28 U.S.C. § 2254. (Doc. # 1). On December 17, 2009, Respondents filed a Motion 23 to Dismiss the Petition. (Doc. # 4). Petitioner filed an Opposition to the Motion to Dismiss on 24 January 4, 2010. (Doc. # 5). The Magistrate Judge issued a Report and Recommendation on 25 June 21, 2010. (Doc. # 9). 26 On August 30, 2010, Petitioner filed objections to the Report and Recommendation. 27 (Doc. # 12). In his objections to the R&R, Petitioner makes essentially the same contentions 28 that he made in his opposition to the motion to dismiss. (Doc. # 5, 12). Petitioner contends -109cv2221-WQH-JMA Dockets.Justia.com 1 that he challenges the fact or duration of his sentence because the disciplinary report will 2 prevent him from being eligible for parole. (Doc. # 12 at 2). 3 The R&R recommends that the Petition be dismissed with prejudice because, 4 "Petitioner's claims are not cognizable on federal habeas review and instead must be raised, 5 if at all, under § 1983." (Doc. # 9 at 6). 6 7 STANDARD OF REVIEW The duties of the district court in connection with a magistrate judge's report and 8 recommendation are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. 9 § 636(b)(1). The district court must "make a de novo determination of those portions of the 10 report ... to which objection is made," and "may accept, reject, or modify, in whole or in part, 11 the findings or recommendations made by the magistrate." 28 U.S.C. §636(b)(1); see also U.S. 12 v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). 13 14 DISCUSSION The Magistrate Judge states: "`Challenges to the validity of any confinement or to 15 particulars affecting its duration are the province of habeas corpus [28 U.S.C. § 2254].'" (Doc. 16 # 9 at 4 (quoting Hill, 547 U.S. at 579)). The R&R states: "An inmate's challenge to the 17 circumstances of his confinement, however, may be brought under [42 U.S.C. § 1983]." Id. 18 (quoting Hill, 547 U.S. at 579). 19 The Magistrate Judge finds that Petitioner challenges prison disciplinary proceedings, 20 but he "was not assessed any loss of good-time credits and thus the length of his imprisonment 21 was not affected by the disciplinary finding." (Doc. # 9 at 6). The R&R finds that "[a]s with 22 [Ramirez v. Galaza, 334 F.3d 850 (9th Cir. 2003)] Petitioner essentially seeks a finding of `not 23 guilty' on the disciplinary charge and/or an expungement of the guilty finding from his 24 record." Id. (citing Ramirez, 334 F.3d at 859). 25 The R&R concludes that Petitioner merely speculates that his parole eligibility could 26 be affected and he "has made no showing that expungement of the disciplinary finding from 27 his record would be `likely to accelerate' his eligibility for parole.'" Id. (quoting Bostic v. 28 Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989)). The R&R concludes that "[t]he `speculative -209cv2221-WQH-JMA 1 impact' of the disciplinary proceedings on any future parole considerations is inadequate to 2 serve as the basis for a habeas corpus petition." Id. (citation omitted). 3 The Court has reviewed de novo all aspects of the R&R, lodgments, and filings in this 4 case and concludes that the Magistrate Judge correctly recommended that the Petition be 5 dismissed because it is not a cognizable federal habeas corpus petition. Petitioner challenges 6 his disciplinary proceedings and has not shown that expungement of the disciplinary finding 7 would be "likely to accelerate" his eligibility for parole. Ramirez, 334 F.3d at 859; Bostic, 884 8 F.2d at 1269. 9 10 CONCLUSION IT IS HEREBY ORDERED that the Report and Recommendation (Doc. # 9) is 11 ADOPTED in its entirety except that the Petition for Writ of Habeas Corpus (Doc. # 1) is 12 DISMISSED WITHOUT PREJUDICE instead of dismissed with prejudice as recommended 13 by the Magistrate Judge. 14 IT IS SO ORDERED. 15 DATED: September 22, 2010 16 17 18 19 20 21 22 23 24 25 26 27 28 -309cv2221-WQH-JMA WILLIAM Q. HAYES United States District Judge

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