(HC)Lopez v. Robinson ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANDREW R. LOPEZ, Case No. 21-cv-00412-JST 8 Petitioner, ORDER DENYING PETITION FOR A 9 v. WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF 10 JAMES ROBERTSON, APPEALABILITY 11 Respondent. 12 13 Petitioner, an inmate at Pelican Bay State Prison,1 filed this pro se action seeking a writ of 14 habeas corpus pursuant to 28 U.S.C. § 2254. His petition2 is now before the Court for review 15 pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United 16 States District Courts. 17 DISCUSSION 18 A. Standard of Review 19 This court may entertain a petition for writ of habeas corpus “in behalf of a person in 20 21 1 The Clerk of the Court is directed to correct the spelling of Respondent’s last name. The warden of Pelican Bay State Prison is James Robertson, as specified in the petition. The Clerk shall 22 change the name from Robinson to Robertson. 2 Petitioner has appeared before this Court before. He has filed at least two civil rights action in 23 this Court: (1) C No. 17-2087 PJH, Lopez v. Olson, et al., which alleged that Plaintiff was receiving inadequate medical care at Pelican Bay State Prison and was dismissed because Plaintiff 24 failed to pay the filing fee and was not eligible for in forma pauperis status because he had suffered three strikes pursuant to 28 U.S.C. § 1915(g); and (2) C No. C No. 08-4543 MHP, Lopez 25 v. Florez, et al., which was transferred to the Eastern District of California. He has also filed at least four habeas petitions, including this one: (1) C No. 20-cv-8988 JST, Lopez v. Robertson, 26 which challenged disciplinary violations issued on July 18, 2018 and February 26, 2019, and which was dismissed for lack of habeas jurisdiction without prejudice to re-filing as a civil rights 27 action; (2) C No. 04-0993 MHP, Lopez v. Scribner, which was transferred to the Eastern District 1 custody pursuant to the judgment of a state court only on the ground that he is in custody in 2 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 3 Hodges, 423 U.S. 19, 21 (1975). A district court shall “award the writ or issue an order directing 4 the respondent to show cause why the writ should not be granted, unless it appears from the 5 application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. 6 B. Petitioner’s Claims 7 The petition challenges a rules violation for fighting received by Petitioner, arising out of 8 an incident on November 18, 2018, when Petitioner and inmate Ramirez were attacked by inmate 9 Raper. Petitioner was found guilty of this rules violation. Petitioner alleges that the Parole Board 10 “deems the guilty finding adversely.” ECF No. 1 at 5. Petitioner argues that this guilty finding 11 violated due process, violated the Equal Protection Clause, denied him the right to defend himself, 12 and that the hearing officer falsified the record. See generally ECF No. 1. Petitioner seeks 13 expungement of the disciplinary violation. 14 C. Dismissal for Lack of Habeas Jurisdiction 15 “‘Federal law opens two main avenues to relief on complaints related to imprisonment: a 16 petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871, 17 Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983. Challenges to the lawfulness of confinement or 18 to particulars affecting its duration are the province of habeas corpus.’” Hill v. McDonough, 547 19 U.S. 573, 579 (2006) (quoting Muhammad v. Close, 540 U.S. 749, 750 (2004)). Habeas is the 20 “exclusive remedy” for the prisoner who seeks “‘immediate or speedier release’” from 21 confinement. Skinner v. Switzer, 562 U.S. 521, 533-34 (2011) (quoting Wilkinson v. Dotson, 544 22 U.S. 74, 82 (2005)); see Calderon v. Ashmus, 523 U.S. 740, 747 (1998). A challenge to a 23 disciplinary finding that resulted in an assessment of time credits must be brought in habeas if 24 reinstatement of the time credits would “necessarily spell speedier release.” Id. at 525. 25 Here, habeas jurisdiction is lacking because success on Petitioner’s claims would not 26 shorten or end his sentence. Petitioner is serving an indeterminate life term with the possibility of 27 parole. Lopez v. Calderon, No. F049556, 2007 WL 257965, at *1 (Cal. Ct. App. Jan. 31, 2007). 1 would favorably impact his parole eligibility, this argument also fails to state a claim for habeas 2 jurisdiction. Under California law, in determining parole suitability, the parole board must 3 consider all “relevant, reliable information available.” 15 Cal. Code Regs. § 2281(b). A 4 disciplinary infraction would be a relevant but not dispositive factor. See generally id. Similarly, the lack of disciplinary infractions during incarceration, while relevant, is also not dispositive of 5 parole suitability. See id. (requiring parole board to consider inter alia prisoner’s social history, 6 past and present mental state, past criminal history). The Ninth Circuit has specifically found that 7 there is no habeas jurisdiction for claims challenging a disciplinary finding on the grounds that the 8 disciplinary finding affects the petitioner’s parole suitability finding. Nettles v. Grounds, 830 F.3d 9 922, 927-28 (9th Cir. 2016) (en banc). Similar to Petitioner, the prisoner-petitioner in Nettles was 10 serving a life sentence and had challenged a prison disciplinary decision that he alleged was 11 impeding his ability to be granted parole. The Ninth Circuit concluded that habeas jurisdiction 12 was absent due to the fact that success on the merits “would not necessarily lead to immediate or 13 speedier release because the expungement of the challenged disciplinary violation would not 14 necessarily lead to a grant of parole.” Nettles, 830 F.3d at 934-35. Under state law, the inmate 15 had to be found suitable for parole before he would be granted parole; “the presence of a 16 disciplinary infraction does not compel the denial of parole, nor does an absence of an infraction 17 compel the grant of parole.” Id. at 935. Parole decisions are based on many factors, prison 18 disciplinary decisions being just one of them. Id. Because Petitioner is serving an indeterminate 19 life term, the Court finds that there is no habeas jurisdiction for his due process claims relating to 20 his two disciplinary infractions. Nettles, 830 F.3d at 927, 934-35. The Court DISMISSES this 21 petition for a writ of habeas corpus for lack of jurisdiction. The dismissal is without prejudice to 22 Petitioner filing a new civil rights action asserting his challenges to the disciplinary decisions. See 23 Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003) (“habeas jurisdiction is absent, and a 24 [section] 1983 action proper, where a successful challenge to a prison condition will not 25 necessarily shorten the prisoner’s sentence.”). 26 CERTIFICATE OF APPEALABILITY 27 The Court concludes that no “jurists of reason would find it debatable whether the petition 1 || debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 2 || U.S. 473, 484 (2000). Accordingly, a certificate of appealability is DENIED. 3 CONCLUSION 4 For the reasons set forth above, the petition for writ of habeas corpus is DISMISSED, and 5 a certificate of appealability is DENIED. The dismissal is without prejudice to Petitioner filing a 6 || new civil rights action asserting his challenges to the disciplinary decisions. The Clerk shall send 7 || Petitioner two copies of the civil rights complaint form. The Clerk is also directed to correct the 8 || spelling of Respondent’s last name to Robertson. The Clerk shall close the file. 9 IT IS SO ORDERED. 10 Dated: August 23, 2021 11 JON S. TIGAR' 12 nited States District Judge 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28