Burriola v. Baca

Filing 39

ORDER that the Second Amended Petition for Writ of Habeas Corpus ECF No. 8 is DENIED; Clerk directed to enter judgment and close this action. It is Further Ordered that a certificate of appealability is DENIED. Signed by Judge Robert C. Jones on 03/06/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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ANTHONY BURRIOLA,

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Petitioner,

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vs.

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Case No. 3:13-cv-00574-RCJ-VPC

ISIDRO BACA, et al.,

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ORDER

Respondents.

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Before the court are the second amended petition for a writ of habeas corpus pursuant to 28

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U.S.C. § 2254 (ECF No. 8), respondents’ answer (ECF No. 33), and petitioner’s reply (ECF No.

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38). Petitioner’s claims are not addressable in federal habeas corpus, and the court denies the

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petition. The court also declines to re-characterize this action as a civil rights action pursuant to 42

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U.S.C. § 1983.

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This action arises out of prison disciplinary proceedings. At least one of the proceedings

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involved a prior action filed in this court, Burriola v. Nevada, Case No. 3:10-cv-00168-LRH-WGC.

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In that action, petitioner filed an affidavit purportedly executed by a correctional officer stating that

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petitioner was her authorized representative. The affidavit was fraudulent, and the court sanctioned

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petitioner by dismissing the action with prejudice. Petitioner appealed, and the court of appeals

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affirmed. Petitioner then was sanctioned through the prison disciplinary process. Among other

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punishments, he forfeited three hundred sixty credits toward an earlier discharge from his sentence.

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In the remaining claims of the second amended petition (ECF No. 8), petitioner alleges that a

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deputy attorney general instructed corrections staff to fabricate the charges, that the hearing officer

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did not allow petitioner to review the evidence against him, and that the court should order the

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Nevada Department of Corrections to expunge the charges and to restore any forfeited credits

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toward an earlier discharge from his sentence.

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The recent decision in Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016) (en banc), holds that

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this court cannot grant petitioner any relief. Nettles was in prison on a determinate term of twelve

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years and a life term with the possibility of parole. He sought expungement of a prison disciplinary

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violation and restoration of credits toward an earlier release. That, Nettles argued, would lead to an

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earlier parole hearing. The court of appeals held, “if a state prisoner’s claim does not lie at ‘the core

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of habeas corpus,’ . . . it may not be brought in habeas corpus but must be brought, ‘if at all,’ under

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[42 U.S.C.] § 1983.” Id. at 931 (quoting Preiser v. Rodriguez, 411 U.S. 475, 487 (1973), and

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Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011)). The “core of habeas corpus” is relief that

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terminates custody, accelerates the future date of release from custody, or reduces the level of

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custody, such as from incarceration to parole. Nettles, 830 F.3d at 930 (quoting Wilkinson v.

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Dotson, 544 U.S. 74, 86 (2005) (Scalia, J., concurring)). In Nettles’ case, success would not have

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necessarily led to immediate or earlier release from confinement, because even if the disciplinary

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violation was expunged, the parole board still could deny parole.

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Petitioner’s situation is indistinguishable from Nettles. Petitioner has been convicted of

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second degree murder with the use of a deadly weapon, for which he has received two sentences of

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life imprisonment with minimum eligibility for parole after ten years, to be served consecutively.

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See Burriola v. Palmer, Case No. 3:06-cv-00059-PMP-RAM.1 Even if petitioner succeeded with

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his claims, that success would not necessarily lead to immediate or earlier release from

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confinement. He still would need to be considered by the parole board, which could still deny

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parole. The relief that the court could grant would be outside the core of habeas corpus, and

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petitioner would need to seek that relief through a civil rights action pursuant to 42 U.S.C. § 1983.

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Petitioner has been convicted of other crimes, but they are not important for the purposes of
this order.
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Nettles notes that a court may re-characterize a habeas corpus petition into a civil rights

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action. 830 F.3d at 935-36. The court declines to do that for three reasons. First, the respondent in

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this action is different from who the defendants would be in a civil rights action. Second, petitioner

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would be required to pay a much larger filing fee through monthly installments. 28 U.S.C.

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§ 1915(b). Third, petitioner has had at least two prior civil rights actions dismissed for failing to

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state a claim, for being frivolous, or for malicious activity. Burriola v. State of Nevada, Case No.

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3:10-cv-00168-LRH-WGC; Burriola v. Mosley, Case No. 3:10-cv-00438-LRH-RAM. If the court

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re-characterized this action, and if then the action is dismissed for one of those reasons, petitioner

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no longer would be able to proceed in forma pauperis in any civil actions commenced while being a

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prisoner. 28 U.S.C. § 1915(g). Petitioner should decide on his own whether it is worthwhile to

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pursue his claims in a civil rights action.

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Reasonable jurists would not find the court’s conclusions to be debatable or wrong, and the
court will not issue a certificate of appealability.
IT IS THEREFORE ORDERED that the second amended petition for a writ of habeas

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corpus (ECF No. 8) is DENIED. The clerk of the court shall enter judgment accordingly and close

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this action.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

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DATED: This 6th day of March, 2017.
DATED:

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_________________________________
ROBERT C. JONES
United States District Judge

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