Lowry v. Baker et al

Filing 25

ORDER - Respondents' motion to dismiss (ECF No. 14 ) is granted. The Petition is dismissed for lack of subject matter jurisdiction. Petitioner's motion for appointment of counsel (ECF No. 22 ) is denied as moot. Petit ioner is denied a certificate of appealability. Clerk shall enter final judgment accordingly and close this case. The Clerk shall send Petitioner 1983 and IFP forms with instructions. (Mailed to P 5/17/2019.) Signed by Judge Miranda M. Du on 5/17/2019. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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Case No. 3:18-cv-00224-MMD-CBC
CHRISTOPHER LOWRY,
ORDER

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Petitioner,
v.
RENE BAKER, et al.,
Respondents.

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This pro se habeas petition under 28 U.S.C. § 2254 comes before the Court on

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Respondents’ motion to dismiss (ECF No. 14). Petitioner opposed (ECF No. 21), and

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Respondents replied (ECF No. 24). Petitioner additionally has filed a motion for

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appointment of counsel (ECF No. 22).

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In his Petition, Petitioner asserts that the Nevada Department of Corrections

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(“NDOC”) has improperly, and in violation of his Fifth Amendment and Fourteenth

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Amendment Equal Protection rights, failed to apply good-time credits to his minimum

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term, i.e., in order to determine his parole eligibility date. Respondents move to dismiss

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on the grounds that the Petition is untimely and that it fails to state any cognizable federal

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habeas claim. Because Respondents are correct that the Petition does not state any

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federal habeas claim, the Court lacks jurisdiction to consider it, and the Petition must be

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dismissed.

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A claim is cognizable under 28 U.S.C. § 2254 only if it falls within the “core” of

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habeas. If a claim would not necessarily lead to the petitioner’s speedier release, it does

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not fall within the core of habeas. Nettles v. Grounds, 830 F.3d 922, 930 (9th Cir. 2016).

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“[A] § 1983 action is the exclusive vehicle for claims brought by state prisoners that are

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not within the core of habeas corpus.” Id. at 927.

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In Nettles, the petitioner sought expungement of a disciplinary infraction on the

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grounds that it was impacting his eligibility for parole. The Ninth Circuit held that because

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disciplinary infractions are just one of many factors the parole board considers in deciding

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whether to grant parole, expungement of the infraction would not necessarily lead to the

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petitioner’s speedier release and thus was not a claim in the “core” of habeas. Id. at 925.

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In light of the pleadings and the record, it is clear that Petitioner’s only claim in this

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action involves NDOC’s failure to apply time credits to his minimum term for purposes of

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parole eligibility and does not assert any other type of claim. Under Nettles, this claim

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does not fall in the “core” of habeas because success would not necessarily lead to

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Petitioner’s immediate or speedier release—it would lead only to an earlier parole

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hearing, at which Petitioner might or might not be granted parole. Petitioner’s claim must

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therefore be brought, “if at all,” under 42 U.S.C. § 1983. See Rouser v. Sullivan, 2019 WL

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1934483, at *2 (E.D. Cal. May 1, 2019); Stanhope v. Ryan, 2017 WL 1163303, at *8 (D.

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Ariz. Mar. 29, 2017); Gordon v. Premo, 757 F. App’x 627, 628 (9th Cir. 2019) (unpublished

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disposition).

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While the Court may in some cases convert a habeas petition to a § 1983

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complaint, it may do so only if the petition is convertible on its face, meaning it names the

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correct defendants, asserts the correct claims, and seeks the appropriate relief. Because

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it is not clear that the Petition has named the correct Defendant, the Court will not exercise

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its discretion to convert the Petition.

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It is therefore ordered that Respondents’ motion to dismiss (ECF No. 14) is

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granted, and the Petition in this action is dismissed for lack of subject matter jurisdiction.

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It is further ordered that Petitioner’s motion for appointment of counsel (ECF No.

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22) is denied as moot.

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It is further ordered that Petitioner is denied a certificate of appealability, as jurists

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of reason would not find the Court’s dismissal of the Petition for lack of jurisdiction to be

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debatable or wrong.

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The Clerk of Court will enter final judgment accordingly and close this case.
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The Clerk of Court is instructed to send Petitioner copies of the instructions and

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forms for a 42 U.S.C. § 1983 prisoner civil rights complaint and the inmate pauper

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application.

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DATED THIS 17th day of May 2019.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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