Cobb v. Howard ( 2021 )

1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 Daniel Cobb, CV 20-00515-TUC-LCK 10 Petitioner, 11 ORDER vs. 12 Catricia Howard, 13 Respondent. 14 15 16 Petitioner Daniel Cobb, incarcerated at the U.S. Penitentiary in Tucson, Arizona, 17 has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Before this 18 Court are the Petition (Doc. 1), Respondent’s Answer (Doc. 37), and Petitioner’s Reply 19 (Doc. 24). The parties consented to exercise of jurisdiction by a Magistrate Judge, pursuant 20 to 28 U.S.C. § 636(c)(1). (Doc. 23.) The Court finds that the Petition should be dismissed. 21 FACTUAL AND PROCEDURAL BACKGROUND 22 Petitioner is serving a federal sentence at USP Tucson. On September 9, 2019, 23 Petitioner was charged with phone abuse (criminal) (Incident Report Number 3301589). 24 (Doc. 37, Ex. A ¶ 8.) The Disciplinary Hearing Officer found the act committed as charged 25 and sanctioned Petitioner with the loss of 41 days good conduct time, and loss of phone 26 and email privileges for six months. (Id., Ex. A, Attach. 3 at 2-3.) 27 After appeal, Petitioner received a re-hearing on the Incident Report. (Doc. 37, Ex. 28 A ¶ 16.) The DHO found Petitioner committed two violations, telephone abuses other than 1 illegal activity and refusing a program assignment. (Id., Ex. A, Attach. 3.) Petitioner was 2 sanctioned with 90 days loss of visitation and telephone privileges; no good conduct time 3 was sanctioned. (Id.) Upon appeal, the refusing a program assignment violation was 4 expunged; the telephone abuse violation was upheld along with the loss of phone 5 privileges. (Id., Attach. 4 at 1.) 6 Petitioner filed a Petition for Writ of Habeas Corpus in this Court on November 23, 7 2020. (Doc. 1.) In Count 1, Petitioner alleges that, in proceeding on Incident Report 8 Number 3301589 and taking 41 days of good conduct time, Respondent violated his right 9 to due process. (Id. at 4.) He requests return of his good conduct time and expungement of 10 the incident report. (Id. at 9.) Petitioner brought three additional claims, but the Court 11 dismissed Counts 2-4. (Id. at 5-7; Doc. 9 at 4, 6.) After the Petition was filed, the Bureau 12 of Prisons (BOP) audited Petitioner’s sentence computation and restored 41 days of good 13 conduct time. (Doc. 37, Ex. A, Attach. 6 at 2.) 14 DISCUSSION 15 Under 28 U.S.C. § 2241, inmates can petition for relief if they demonstrate they are 16 in custody in “violation of the Constitution or laws or treaties of the United States.” 28 17 U.S.C. § 2241(c). An inmate may obtain relief under § 2241 for loss of good time credits 18 if the prison disciplinary proceeding did not comply with due process. Bostic v. Carlson, 19 884 F.2d 1267, 1269 (9th Cir. 1989). This is because the loss of time credits affects the 20 duration of the prisoner’s confinement. See Preiser v. Rodriguez, 411 U.S. 475, 487-88 21 (1973) (state prisoners’ suit seeking restoration of good time credits was “within the core 22 of habeas corpus in attacking the very duration of their physical confinement itself”). 23 Respondent argues that the Court does not have jurisdiction over the Petition 24 because Petitioner’s good time credits have been restored; therefore, the Petition does not 25 attack the duration of Petitioner’s custody. Respondent provided documentation that the 26 good conduct time taken away based on Incident Report Number 3301589 had been 27 restored after Petitioner filed this case. (Doc. 37, Ex. A, Attach. 6 at 2.) In his Reply, 28 Petitioner acknowledged the restoration of his good conduct credits. (Doc. 24 at 2.) As a 1 remedy, Petitioner asks the Court to expunge the violation for telephone abuse, restore his 2 phone privileges, and allow him to communicate with his wife and daughter. (Id. at 43.) 3 “[H]abeas jurisdiction is absent . . . where a successful challenge to a prison 4 condition will not necessarily shorten the prisoner’s sentence.” Ramirez v. Galaza, 334 5 F.3d 850, 858-59 (9th Cir. 2003). Because expungement of the Incident Report would not 6 dictate a shortening of Petitioner’s period of confinement, Petitioner’s challenge on that 7 basis is not within this Court’s habeas jurisdiction. Nettles v. Grounds, 830 F.3d 922, 935 8 (9th Cir. 2016) (quoting Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011) (requiring a 9 claim to be brought under § 1983 if it does not come within “the core of habeas corpus”)). 10 Similarly, a successful challenge to the loss of telephone privileges will not shorten 11 Petitioner’s sentence. See Masters v. Johnson, No. CV14-07147-RGK-DFM, 2015 WL 12 5092708, at *5 (C. D. Cal. June 10), report and recommendation adopted, 2015 WL 13 5096413 (C.D. Cal. Aug. 28, 2015) (citing Ramirez, 334 F.3d at 859); see also Strouse v. 14 Shartle, No. CV-16-00237-TUC-RCC (EJM), 2017 WL 2224926, at *3 (D. Ariz. May 22, 15 2017) (finding no § 2241 jurisdiction for loss of commissary); Everett v. Clark, 52 F. App’x 16 959, 960 (9th Cir. 2002) (same) (citing Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) 17 (stating that habeas corpus proceedings are the proper mechanism for a prisoner to 18 challenge the legality or duration of confinement, while a civil rights action is the proper 19 method of challenging conditions of confinement)). 20 Petitioner argues that the prison is preventing him from having contact with his wife 21 and daughter, which violates his constitutional rights. (Doc. 24 at 38-42.) These types of 22 constitutional challenges, to conditions of confinement, cannot be brought in a habeas 23 proceeding but may be raised in a civil rights suit. See Badea, 931 F.2d at 574. Petitioner 24 asks that the Court address these constitutional claims in this proceeding so that he and the 25 Court can avoid a subsequent lawsuit. The Court is unable to do so because it does not have 26 jurisdiction over those claims in this habeas proceeding. 27 In the context of habeas cases, a petition is moot when a petitioner has received the 28 requested relief or his claim for relief cannot be redressed by the issuance of a writ of 1 | habeas corpus. See Spencer v. Kemna, 523 U.S. 1, 7 (1998); Munoz v. Rowland, 104 F.3d 2| 1096, 1097-98 (9th Cir. 1997). Petitioner has received the restoration of the good conduct time credits associated with Incident Report Number 3301589. The remaining relief sought 4] is not within the jurisdiction of a habeas proceeding. Thus, the Petition is moot. 5 As a final matter, Petitioner’s Reply takes issue with several statements in 6| Respondent’s Answer. (Doc. 24 at 1-25.) The Court does not address these objections because they are not material to the outcome of his case. 8 In a separate motion, Petitioner asks the Court to compel expungement of both 9| violations under Incident Report Number 3301589, arguing that the Court already has 10 | directed Respondent to do so. As background, the orders cited by Petitioner state that both 11 | violations had been expunged during the administrative process. (Docs. 9, 21.) The 12 | statement appears to be partially erroneous. Regardless, the Court did not direct 13 | Respondent to take any action regarding expungement. And because expungement has no bearing on the length of Petitioner’s sentence, it is not within this Court’s jurisdiction. For 15 | those reasons, Petitioner’s motion to compel will be denied. 16 Accordingly, 17 IT IS ORDERED that Petitioner’s Motion to Compel (Doc. 39) is DENIED. 18 IT IS FURTHER ORDERED that the Petition is DENIED. The Clerk of Court 19 | shall dismiss the Petition, enter judgment, and close this case. 20 Dated this 8th day of December, 2021. 21 22 : | onorable Lynnette C. Kimmins 24 United States Magistrate Judge 25 26 27 28 -4-