Cooke v. Department of Corrections

Full title: KENDALL COOKE, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent

Court: United States District Court, E.D. California

Date published: Apr 29, 2011

No. 2:10-cv-2399 FCD DAD (HC) (E.D. Cal. Apr. 29, 2011)

Opinion

No. 2:10-cv-2399 FCD DAD (HC).

April 29, 2011

ORDER

DALE DROZD, Magistrate Judge

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges an August 28, 2008 prison disciplinary conviction for engaging in sexual behavior in violation of Cal. Code Reg. § 3007. Respondent has moved to dismiss this action for lack of jurisdiction and for failure to state a cognizable claim for relief. Respondent contends, inter alia, that because petitioner is a life prisoner he cannot earn time credits to reduce his minimum prison term and, therefore, that "the disciplinary decision could not deprive him of credits" and a favorable decision in this action will not affect the length of his prison confinement. Motion to Dismiss, filed January 11, 2011, at 2. Respondent also contends that because petitioner cannot lose time credits, the due process protections outlined in Wolff v. McDonnell, 418 U.S. 539 (1974) "do not apply." Id. Petitioner opposes the motion.

Federal habeas corpus jurisdiction lies for claims that go to "the validity of the fact or length of [prison] confinement."Preiser v. Rodriguez, 411 U.S. 475, 490 (1973). Habeas corpus jurisdiction lies over a challenge to a prison disciplinary conviction "if expungement [of the conviction] is likely to accelerate the prisoner's eligibility for parole.'" Ramirez v. Galaza, 334 F.3d 850, 858 (9^th Cir. 2003) (quoting Bostic v. Carlson, 884 F.2d 1267, 1269 (9^th Cir. 1989). "Bostic does not hold that habeas corpus jurisdiction is always available to seek the expungement of a prison disciplinary record. Instead, a writ of habeas corpus is proper only where expungement is ` likely to accelerate the prisoner's eligibility for parole." Ramirez at 858 (quoting Bostic at 1269).

The sine qua non for habeas corpus jurisdiction is a nexus between success on the claim and effect on the duration of confinement. See Docken v. Chase, 393 F.3d 1024, 1031 (9^th Cir. 2004). Credit loss may be one way to establish the necessary nexus for a challenge to a prison disciplinary conviction, but it is not the only showing that would permit the exercise of habeas corpus jurisdiction over such a challenge. In Docken, the United States Court of Appeals for the Ninth Circuit held that habeas corpus jurisdiction lies over a claim that changes to the frequency of parole review violates the Ex Post Facto Clause. Specifically, the court held that "when prison inmates seek only equitable relief in challenging aspects of their parole review that, so long as they prevail, could potentially affect the duration of their confinement, such relief is available under the federal habeas statute." Id. at 1031. Thus, a showing of that a prison disciplinary conviction has had an impact on either the timing of parole consideration or an actual parole decision may be sufficient to establish habeas corpus jurisdiction over a challenge to that disciplinary conviction.

The record before the court reflects that petitioner did not lose any time credits as a result of the challenged prison disciplinary conviction. However, this was apparently not because of his status as a life prisoner but rather because "time constraints" had not been met and, pursuant to applicable regulations, "credit forfeiture [could] not be assessed." Ex. B to Petition for Writ of Habeas Corpus to California Supreme Court, appended as exhibit to Petition for Writ of Habeas Corpus, filed August 27, 2010, at 3. Thus, some of the arguments raised in respondent's motion are inapposite. The question of jurisdiction over these proceedings is, nonetheless, one that must be resolved. See Wilson v. Belleque, 554 F.3d 816, 821 (9^th Cir. 2009) (court must establish that it has jurisdiction over habeas corpus action before it "may reach the merits").

Petitioner is serving a prison sentence that includes the possibility of parole consideration. Petitioner's current parole status is not clear from the record. In his opposition to the pending motion to dismiss, petitioner represents that he has requested his "Legal Status Summary Sheet" from his correctional counselor, and that this sheet "would show" that petitioner's "`Release Date'" has been changed as a result of the challenged disciplinary conviction. Pet'r's Opp' to Resp't's Mot. to Dismiss (Doc. No. 18), filed Feb. 7, 2011, at 3. Good cause appearing, the parties will be directed to file, within thirty days, any evidence that may bear on the question of whether petitioner's eligibility for parole has been affected by the prison disciplinary conviction at issue in these proceedings, either in connection with the timing of any parole consideration hearing or with the decision to grant or denial of parole. Thereafter respondent's motion to dismiss will be submitted for decision.

In accordance with the above, IT IS HEREBY ORDERED that within thirty days from the date of this order, the parties shall file any evidence that may bear on the question of whether petitioner's eligibility for parole has been affected by the prison disciplinary conviction challenged in these proceedings either in connection with the timing of any parole consideration hearing or with the grant or denial of parole.

DATED: April 28, 2011.