Opinion
No. 2:12-cv-1524 GEB AC P
06-03-2013
CHRISTOPHER JAGERSON, Petitioner, v. MATTHEW CATE, et al., Respondents.
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se and in forma pauperis on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner alleges that his gang validation by prison officials violated his rights under the Sixth and Fourteenth Amendments. Respondent has moved to dismiss the petition, arguing that this court lacks habeas jurisdiction because petitioner's validation is not dispositive of the fact or duration of his confinement. Petitioner has opposed the motion, and additionally moved for counsel. For the reasons outlined below, the undersigned recommends that the Court grant respondent's motion to dismiss, and deny petitioner's motion for counsel.
BACKGROUND
Petitioner is a California state prisoner serving a sentence of 25 year to life, with the possibility of parole, following his 1994 conviction for murder in the first degree. See Abstract of Judgment, ECF No. 19 at 10. Petitioner advises the court that his minimum eligible parole date is January 2, 2021. See "Legal Status Summary" dated Nov. 8, 2010, ECF No. 20 at 13.
Petitioner was validated as a member of the Aryan Brotherhood in 2009. He seeks to expunge this validation, to have all validation materials removed from his central file, and to have the California Department of Corrections and Rehabilitation ("CDCR") comply with its own regulations on validations going forward.
On September 24, 2009, W. Harrison, an assistant institutional gang investigator at High Desert State Prison, served petitioner with a gang validation package, which included evidence that petitioner was a member of the Aryan Brotherhood. See Petition, ECF No. 1 at 13-14, 54. The evidence included four confidential informant reports. Id. One of the confidential reports was authored by Special Agent R.S. Marquez. See Petition, ECF No. 1 at 15, 56.
Harrison interviewed petitioner on September 25, 2009. See Petition, ECF No. 1 at 14, 68. Petitioner provided a written response to his validation package. Id. at 14, 63. During the interview, petitioner asked for more information about the materials referenced in the confidential reports, pursuant to California regulations and its penal code. Id. at 14. Harrison provided some responses, but apparently did not answer all of petitioner's questions. Id. at 14-15.
On September 27, 2009, Harrison and R. St. Andre, the Institutional Gang Investigator, signed a "Gang Validation Chrono" stating that "[t]he IGI has determined that there is sufficient evidence to validate [petitioner] . . ." and forwarding his information to the Office of Correctional Safety. See Petition, ECF No. 1 at 68. On October 8, 2009, the Office of Correctional Safety completed its review of petitioner's validation package and validated petitioner, giving him an active/inactive review date of September 14, 2015. See Petition, ECF No. 1 at 12, 70; but see Petition, ECF No. 1 at 78 (text of director's level appeal reads that petitioner will be eligible for review of status on September 22, 2014). One of the signatories to the validation was Officer R.S. Marquez. Id. at 15, 70. Petitioner received notification of the validation on October 29, 2009. Id.
At the time he was validated, petitioner was serving a 3 year term in the SHU for attempted murder, with an eligible release date of March 17, 2011. See Petition, ECF No. 1 at 13, 52.
A review of the petition reflects that, while petitioner was serving his 3 year SHU term, that term was extended as a result of a rules violation report dated August 27, 2010 for possession of a dangerous weapon. See Petition, ECF No. 1 at 145. Petitioner's April 1, 2011 SHU Committee Review details that petitioner has "extensive non-cell violence," and outlines his disciplinary history to date: "Possession of weapon (4X). Participation in mass disturbance (3X). Attempted murder. Possession of alcohol (2X). Participation in a riot. Destruction of state property. Battery on I/M w/weapon (2X). Possession of dangerous contraband. Battery on I/M (3X). Delaying a P.O. and Conspiracy to commit murder." Id.
On November 3, 2009, petitioner filed an inmate appeal of the validation, alleging among other things that the evidence used to validate him was insufficient, that he was not a gang member, and that use of confidential materials prevented him from preparing a defense or confronting adverse witnesses. See Petition, ECF No. 1 at 16. Petitioner's appeal was reviewed by Lt. St. Andre; however, the letter decision dated December 2, 2009 explaining the reasons for denial of the second level appeal was signed by the Chief Deputy Warden, R.L. Gower. See Petition, ECF No. 1 at 73, 77, 79. Petitioner received notice of the denial on December 9, 2009. See Petition, ECF No. 1 at 17, 77-79.
On December 15, 2009, petitioner filed a director's level appeal of the validation, which was denied on April 8, 2010. See Petition, ECF No. 1 at 17, 81. The signatories to the director's level appeal denial were D. Artis, Appeals Examiner, Inmate Appeals Branch, and D. Foston, Chief, Inmate Appeals Branch. Id. at 82.
Petitioner filed a petition for writ of habeas corpus in the Superior Court on January 10, 2011, which was denied on February 4, 2011. See Petition, ECF No. 1 at 94, 96. The Superior Court found, among other things, that the record reflected "no defect of procedural or substantive due process; the petition does not establish that there was no evidence to support the decisions reached in the validation process." Id. at 97 (citing Wolff v. McDonnell, 418 U.S. 539, 556 (1974); Morrissey v. Brewer, 408 U.S. 471, 488 (1972); and Superintendent v. Hill, 472 U.S. 445, 455-56 (1985)).
Petitioner filed a habeas petition in the state Court of Appeal on February 26, 2011, which was denied on March 24, 2011 in a summary order. See Petition, ECF No. 1 at 110, 113. The petitioner later asked for a statement of reasons for the denial, to which the Clerks' Office responded by saying that the court generally does not provide such information. See Petition, ECF No. 1 at 115.
Petitioner then filed a habeas petition in the state Supreme Court on May 29, 2011. See Petition, ECF No. 1 at 20. The Supreme Court directed the parties to file informal responses on two issues: (1) petitioner's claim that his due process rights were violated when (a) Special Agent Marquez reviewed and approved petitioner's gang validation package as a member of the Committee from the Office of Correctional Safety, even though Marquez had authored a confidential memorandum that served as one of the source items, and (b) Institutional Gang Investigator St. Andre participated in the Second Level review on administrative appeal, even though he participated in the initial validation process and forwarded the validation package to the OCS; and (2) whether each of the three independent source items used for validation must contain information about "current" gang activity, pursuant to California regulations. See Petition, ECF No. 1 at 128. The Supreme Court also asked the state to file under seal copies of the confidential memoranda used to validate petitioner. Id.
Both the state and the petitioner filed responses to the court's inquiry. See Petition, ECF No. 1 at 130, 164. The state argued, for various reasons, that there was no violation of due process or state regulation. See Petition, ECF No. 1 at 133-37. On May 16, 2012, the Supreme Court denied the petition in a summary order. See Petition, ECF No. 1 at 207.
The federal petition was filed on June 1, 2012.
The Federal Petition
Petitioner filed his action as a petition for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner alleges that his validation as a member of the Aryan Brotherhood gang violated due process because: (1) the evidence used to validate him was insufficient under state regulations and under the settlement agreement in Castillo v. Alameida, et al., N.D. Cal. No. C94-2847; (2) Special Agent Marquez, who authored one of the confidential reports, also approved petitioner's gang validation, in violation of California regulations; (3) Institutional Gang Investigator St. Andre, who participated in the initial validation process and forwarded the validation package to the OCS, also participated in the Second Level review on administrative appeal, in violation of California regulations; and (4) petitioner is now serving an indefinite SHU term which represents an atypical and significant hardship in violation of Sandin v. Connor, 515 U.S. 472 (1995).
Petitioner also alleges that his SHU sentence "directly and inevitably" affects the duration of his sentence, because he can no longer earn good time credits, and because the Board of Prison Terms refuses to parole gang members or associates. See Petition, ECF No. 1 at 27.
The Board of Prison Terms was abolished in 2005, and replaced by the Board of Parole Hearings ("BPH"). Cal. Penal Code § 5075(a).
Petitioner further alleges that the process violated his Sixth Amendment rights because he was not allowed to know the identity of the confidential informants whose testimony was the subject of the reports which were included in petitioner's validation package, and was accordingly prevented from confronting the witnesses and preparing a defense. Petitioner seeks to have the validation revoked, and to have the validation materials removed from his central file.
The Motion to Dismiss
Respondent argues that the court lacks jurisdiction over the petition because petitioner's success in this action will not necessarily accelerate his release from prison. Instead, respondent argues, success would only expunge the validation, a result which would not require prison officials to release petitioner or alter the length of his sentence.
Respondent additionally argues that any credit-earning opportunities that may result from petitioner's release from SHU would not compel his release, or necessarily reduce his incarceration, and so do not establish a basis for habeas jurisdiction. Instead, petitioner's release from SHU would provide, at most, an opportunity for petitioner to earn work credits: he would not necessarily be entitled to earn credits, or to ensure that any earned credit is not forfeited later. Also, the credits could only be used to adjust petitioner's minimum eligible release date (MEPD), regardless of which petitioner's life term would not lapse until the parole board finds him suitable and the Governor concurs.
Petitioner opposes the motion, arguing that his validation and attendant housing in SHU interferes with his ability to earn credits, and has accordingly moved his MEPD back, effectively lengthening his sentence. He also argues that the parole board routinely denies parole to those prisoners with gang validations.
ANALYSIS
The Court Lacks Jurisdiction to Decide the Petition
28 U.S.C. § 2254 authorizes federal courts to entertain petitions for writs of habeas corpus from a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In other words, the challenge raised by the petition must have some nexus to the petitioner's custody. See Bailey v. Hill, 599 F.3d 976, 980-81 (9th Cir. 2010) (district court lacked habeas jurisdiction over petition challenging restitution order where remedy petitioner sought - elimination or alteration of money judgment - did not directly impact, and was not directed at the source of the restraint on, petitioner's liberty).
The Supreme Court has recognized a "core" set of proceedings which are the exclusive province of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (challenges to validity of confinement, or to particulars affecting its duration, are the province of habeas corpus). Civil rights proceedings under 42 U.S.C. § 1983, on the other hand, are the appropriate vehicle for challenging conditions of confinement. Whether a challenge to a prison administrative decision comes within the scope of habeas jurisdiction or that of § 1983 turns on whether a favorable judgment would directly affect the fact or duration of custody. See Heck v. Humphrey, 512 U.S. 477, 487 (1994) (district court must determine if judgment in favor of plaintiff in § 1983 damages action would "necessarily imply the invalidity of [plaintiff's] conviction or sentence," in which case plaintiff must seek relief in habeas); Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (habeas jurisdiction lies where the petitioner, a federal prisoner, sought "expungement of a disciplinary finding that is likely to accelerate the prisoner's eligibility for parole.").
The sine qua non of habeas jurisdiction is the likelihood that a favorable result will lead to accelerated release from custody. Where the governing sentencing and parole regime is so structured that expungement of the disputed finding would likely result in earlier release, as in Bostic, supra, the claims may proceed in habeas. On the other hand, where the governing sentencing and parole regime is so structured that early release prospects are not necessarily affected, § 1983 is the appropriate avenue for relief. In Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997), two Hawaii state prisoners challenged the state's requirement that they participate in a "Sex Offender Treatment Program" ("SOTP") as a precondition to parole eligibility. The Court of Appeals determined that the prisoner's challenge to the SOTP was properly brought under § 1983 rather than § 2254:
If [prisoners] are successful in their challenge of the SOTP and their labeling as sex offenders, that decision will not undermine the validity of their convictions or continuing confinement at all. The only benefit that a victory in this case would provide [prisoners], besides the possibility of monetary damages, is a ticket to get in the door of the parole board, thus only making them eligible for parole consideration according to the terms of their sentences. If [prisoners] win, it will in no way guarantee parole or necessarily shorten their prison sentences by a single day. The parole board will still have the authority to deny the inmates' request for parole on the basis of any of the grounds presently available to it in evaluating such a request.Id. at 824.
Direct challenges to parole decisions and parole consideration processes are theoretically cognizable in habeas because they go directly to the fact or duration of custody. See Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004) (district court had jurisdiction over habeas petition challenging Montana parole board's refusal to provide annual review of suitability for parole). However, challenges to disciplinary decisions or administrative classifications with only a speculative effect on future parole prospect fall outside the scope of habeas jurisdiction. See Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003) (claim regarding procedures used at disciplinary hearing properly brought in § 1983 because expungement of disciplinary finding not shown likely to accelerate prisoner's eligibility for parole), cert. denied, 541 U.S. 1063 (2004).
The existence of federal habeas jurisdiction provides no real prospect of relief to California life prisoners seeking to challenge adverse parole decisions after Swarthout v. Cooke, 131 S.Ct. 859 (2011) (reversing Ninth Circuit's grant of habeas relief in California parole case, and holding that prisoner's only due process right in parole is procedural). Swarthout effectively overruled an extensive and petitioner-friendly body of circuit authority on California parole denials.
California's statutory and regulatory scheme creates an expectation that indeterminate life prisoners "will be granted parole unless the Board finds, in the exercise of its discretion, that they are unsuitable for parole in light of the circumstances specified by statute and by regulation." In re Rosenkrantz, 29 Cal. 4th 616, 654 (2002). The exception very nearly swallows the nominal rule. Under California law parole may be (and regularly is) denied on the basis that the record contains "some evidence" of dangerousness, including evidence related to institutional adjustment or evidence related the commitment offense that bears on dangerousness at the time of the parole decision. In re Lawrence, 44 Cal. 4th 1181, 1191 (2008); In re Shaputis, 44 Cal, 4th 1241, 1254-55 (2008). The "some evidence" standard is an extremely low bar. In Shaputis, for example, the state supreme court overturned the grant of state habeas relief to an inmate who had been discipline-free throughout his incarceration and who had demonstrated substantial rehabilitation. See also Swarthout v. Cooke, 131 S.Ct. 859 (2011) (reversing Ninth Circuit's grant of habeas relief in California parole case). Accordingly, while petitioner will eventually be eligible for parole review, he will not necessarily be eligible for parole. See Cal. Penal Code § 3041(b) (panel shall not set release date if public safety requires continued incarceration). His future parole prospects, and thus the effect of his gang validation on those prospects, are entirely speculative.
Moreover, petitioner's prison record already contains substantially more than "some evidence" to support a finding of unsuitability. Petitioner's SHU term for attempted murder, disciplinary charge for weapons posession, and documented history of "extensive non-cell violence" provide an ample basis for a finding of unsuitability without reference to Aryan Brotherhood affiliation. See 15 Cal. Code Regs. § 2286(c)(1) (factors indicating unsuitability for parole include history of violence). While the undersigned makes no predictions and expresses no opinion regarding petitioner's eventual parole suitability, the existing record defeats any argument that petitioner would be a likely candidate for parole absent the gang validation.
Finally, petitioner's reliance on forfeited good time credits to establish a nexus to the duration of his custody fails. A complex body of rules governs the credits that California lifers can earn, and it is unclear from the record before the court which rules would apply to petitioner. It does appear that petitioner's 1994 first degree murder conviction predates the change in law that made first degree murderers categorically ineligible for credits that advance the minimum eligible parole date ("MEPD"). See Cal. Penal Code §§ 190(e), 2933.2 (as effective June 3, 1998). Even assuming, however, that his gang validation precludes petitioner from earning credits which could affect calculation of his MEPD, only the schedule for parole consideration would be affected. See Cal. Penal Code § 3041(a). Because petitioner's actual suitability for release remains speculative at best, the alleged effect of gang validation on his MEPD can have only a speculative effect on the ultimate duration of his custody.
Petitioner has presented non-frivolous challenges to his gang validation. However, this court can only consider those claims if it has jurisdiction. Habeas jurisdiction does not lie unless relief on the merits would have a likely effect on the duration of custody. Bostic, 884 F.2d at 1269. It is "the likelihood of the effect on the overall length of the prisoner's sentence" that determines the availability of habeas jurisdiction. Docken, 393 F.3d at 1028 (quoting Ramirez, 334 F.3d at 858) (emphasis added by Docken court). In this case, expungement of petitioner's gang validation would have only a speculative future effect on his eligibility for parole. Expungement would "in no way guarantee parole or necessarily shorten [petitioner's] sentence by a single day." Neal, 131 F.3d at 824. Even without consideration of Aryan Brotherhood ties, validated or not, the Board of Parole Hearings "will still have the authority to deny [petitioner's] request for parole on the basis of any of the grounds presently available to it in evaluating such a request." Accordingly, this court lacks jurisdiction to adjudicate the petition.
Specifically, the undersigned is troubled by the alleged review of the gang validation by officials who were involved in the investigation and validation process. Even if this court had jurisdiction, however, petitioner would be entitled to relief under § 2254 only if the California Supreme Court's rejection of the claim was contrary to or an unreasonable application of U.S. Supreme Court precedent. The undersigned is aware of no precedent which would provide a basis for relief here. Petitioner has also presented claims that are not a basis for federal habeas relief, including claims based on violations of state law and a challenge to conditions of confinement in the SHU.
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MOTION FOR APPOINTMENT OF COUNSEL
Petitioner has moved for the appointment of counsel. ECF No. 21. In light of the undersigned's recommendation that the court lacks jurisdiction to review petitioner's claims, the undersigned recommends that the motion for appointment of counsel be denied.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A certificate of appealability may issue only "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). For the reasons set forth in these findings and recommendations, a substantial showing of the denial of a constitutional right has not been made in this case.
IT IS HEREBY RECOMMENDED that:
1. Petitioner's motion for appointment of counsel (ECF No. 21) be denied;Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-eight days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within twenty-eight days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
2. Respondent's motion to dismiss this petition (ECF No. 19) be granted, and the petition be dismissed; and
3. The district court decline to issue a certificate of appealability in this case. These findings and recommendations are submitted to the United States District
____________________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE