(HC) Fond v. Diaz ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PHILLIP FOND, No. 2:20-cv-1145 KJM AC P 12 Petitioner, 13 v. ORDER 14 RALPH DIAZ, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as 19 provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On April 21, 2021, the magistrate judge filed findings and recommendations, which were 21 served on petitioner and which contained notice to petitioner that any objections to the findings 22 and recommendations were to be filed within twenty-one days. ECF No. 21. Petitioner has filed 23 objections to the findings and recommendations. ECF No. 24. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 25 court has conducted a de novo review of this case. Having reviewed the file, the court finds the 26 findings and recommendations to be supported by the record and by the proper analysis. The 27 court writes separately here to address Mr. Fond’s argument that this case is distinguishable from 28 Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2015) (en banc). See Objections at 4–8. 1 In Nettles, the California Board of Parole Hearings had concluded the federal habeas 2 petitioner was unsuitable for parole based in part on his history of prison discipline. See id. at 3 926–27. He then challenged one of his rules violation reports in a federal petition for a writ of 4 habeas corpus. See id. at 927. The district court dismissed the petition because expunging the 5 challenged report was unlikely to lead to his earlier parole. See id. at 927. The Ninth Circuit 6 upheld the dismissal. See id. at 934–35. The challenged rules violation report was only “one of 7 the factors” among many the parole board could consider, so the petitioner’s success in federal 8 court “could not necessarily lead to his immediate or even earlier release.” Id. For that reason, 9 the petitioner’s claims were not “within ‘the core of habeas corpus’” and should instead have 10 been brought in a civil action under 42 U.S.C. § 1983. Id. (quoting Skinner v. Switzer, 562 U.S. 11 521, 535 n.13 (2011)). 12 The same is true here. Mr. Fond challenges a rules violation report after the denial of 13 parole based in part on his history of discipline in the prison. See, e.g., Objs. at 4 & Ex. 1. The 14 challenged report was only one factor the Board of Parole Hearings considered. See id. Ex. 1 at 15 3–4. Others included his criminal and parole history at the time of his offense; his impulsiveness, 16 poor decisions, callousness, and lack of respect for the law; his expressions of views and 17 behaviors that demonstrated no change in his behavior; and his history of violence and discipline 18 in prison beyond the challenged report. See id. His success in this case would not necessarily 19 lead to an earlier release. The Magistrate Judge concluded correctly that his petition must be 20 dismissed. 21 Accordingly, IT IS HEREBY ORDERED that: 22 1. The findings and recommendations filed April 21, 2021, ECF No. 21, are adopted in 23 full; 24 2. Respondent’s motion to dismiss, ECF No. 12, is granted and petitioner’s application 25 for writ of habeas corpus is dismissed for lack of jurisdiction; 26 ///// 27 ///// 28 ///// 1 3. The court declines to issue the certificate of appealability referenced in 28 U.S.C. 2 | § 2253; and 3 4. The Clerk of the Court is directed to close this case. 4 | DATED: September 22, 2021. 5 6 l ti / ¢ q_/ 4 CHIEF NT] ED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28