Opinion
No. 11-cv-2715 GEB CKD P
03-01-2013
PAUL SAMUEL JOHNSON, Petitioner, v. GARY SWARTHOUT, Respondent.
ORDER TO SHOW CAUSE
Petitioner, a former inmate of the California Department of Corrections and Rehabilitation (CDCR), proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following this court's order of November 10, 2011, petitioner proceeds on a single claim: that he suffered a due process violation in connection with a 2010 prison disciplinary proceeding in which he was found guilty of obstructing a peace officer in the performance of duty and sanctioned with 90 days loss of earned credit, among other penalties. Petitioner requests that the rules violation report be dismissed and his 90 days of credit be restored. (Dkt. No. 1 at 9.)
Inmates have a liberty interest protected by the Due Process Clause of the Fourteenth Amendment in earned good conduct sentence credit. E.g. Superintendent v. Hill, 472 U.S. 445, 453 (1985). Because good time credits impact the duration of a prisoner's confinement, a prisoner may generally challenge a prison disciplinary conviction by petition for writ of habeas corpus if the conviction resulted in the loss of good time. Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973) (suit seeking restoration of good time credits was "within the core of habeas corpus in attacking the very duration of their physical confinement itself").
However, Article III of the Constitution limits federal courts to the adjudication of actual, ongoing controversies between litigants. Deakins v. Monaghan, 484 U.S. 193, 199 (1988); see also Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir. 2004) (holding that federal courts "have an independent duty to consider" mootness sua sponte). "The case-or-controversy requirement demands that, through all stages of federal judicial proceedings, the parties continue to have a personal stake in the outcome of the lawsuit." United States v. Verdin, 243 F.3d 1174, 1177 (9th Cir. 2001) (internal quotation marks and citation omitted). The basic question in determining mootness is "whether there is a present controversy as to which effective relief can be granted." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). A case or controversy must exist throughout all stages of litigation. Spencer v. Kemna, 523 U.S. 1, 7 (1998). If at any time during the course of litigation a plaintiff ceases to suffer, or be threatened with, "an actual injury traceable to the defendant," and that is "likely to be redressed by a favorable judicial decision," the matter is moot. Id. at 7.
An exception to the mootness doctrine applies to claims that are "capable of repetition, yet evading review." Spencer, 523 U.S. at 17. To invoke this exception, it must be shown that "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration; and (2) there [is] a reasonable expectation that the same complaining party will be subjected to the same action again." First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 774 (1978) (citation omitted). "A mere speculative possibility of repetition is not sufficient." Williams v. Alioto, 549 F.2d 136, 143 (9th Cir. 1977). "There must be a cognizable danger, a reasonable expectation, of recurrence for the repetition branch of the mootness exception to be satisfied." Id.
A habeas petition becomes moot when the petitioner's injury cannot be redressed by a favorable decision. Burnett, 432 F.3d at 1000-01; see also Wilson v. Terhune, 319 F.3d 477, 479 (9th Cir. 2003), cert. denied 539 U.S. 933 (holding that in order for a suit to be maintained after a habeas corpus petitioner's release from prison, "[s]ome collateral consequence of the conviction must exist.") (citing Spencer, 523 U.S. at 7)).
Collateral consequences flow from a criminal conviction, because "once convicted, one remains forever subject to the prospect of harsher punishment for a subsequent offense as a result of federal and state laws that either already have been or may eventually be passed." Chacon v. Wood, 36 F.3d 1459 (9th Cir. 1994). Therefore, a prisoner's challenge to his criminal conviction is generally not rendered moot by his release from custody. Id. This presumption of collateral consequences does not apply to revocations of parole (Spencer, 523 U.S. at 12-14) or to the outcomes of prison disciplinary actions (Wilson, 319 F.3d at 480), in which case the petitioner must prove that such consequences exist. See Spencer, 523 U.S. at 8, 12 (parole revocation); Cochran v. Buss, 381 F.3d 637, 641 (7th Cir. 2004) (per curiam) (loss of good-time credits).
In Wilson, in contrast to the present case, the petitioner did "not challenge the punishment he received as a result of the disciplinary proceeding, which he acknowledged [was] no longer at issue. Rather, he contend[ed] that the existence of the 115 itself [would] result in adverse collateral consequences." Wilson, 319 F.3d at 481. In this case, petitioner challenges not the existence of the disciplinary conviction but rather, the punishment he received which included the loss of good time credits.
Here, it appears from petitioner's change of address to a non-prison address that he has either completed his sentence or been released on parole. (Dkt. Nos. 32, 34.) This is a signal that his due process claim challenging the 2010 prison disciplinary proceeding has become moot. See Wilson, 319 F.3d at 480; Nonnette v. Small, 316 F.3d 872, 875-76 (9th Cir. 2002). In Nonnette, a parolee sued state prison officials under 42 U.S.C. § 1983 for damages, alleging that they had violated his constitutional rights by revoking good-time credits in a disciplinary proceeding without any supporting evidence. Nonnette, 316 F.3d at 874. The district court granted summary judgment for the state officials, citing Heck v. Humphrey, 512 U.S. 477 (1994), which holds that before an inmate can maintain a civil rights complaint that necessarily challenges the validity of the underlying decisions that caused the inmate's continued confinement, he must first show that those determinations have been set aside in a successful habeas corpus petition. The Ninth Circuit reversed the district court's decision, holding that Nonnette did not need to first file a habeas corpus petition since such a petition would not satisfy the case or controversy requirement of Article III:
Petitioner's release from prison does not divest this court of jurisdiction based on the "in custody" jurisdictional requirement of section 2254(a). That requirement "has been interpreted to mean that federal courts lack jurisdiction over habeas corpus petitions unless the petitioner is 'under the conviction or sentence under attack at the time his petition is filed.'" See Resendiz v. Kovensky, 416 F.3d 952, 956 (9th Cir. 2005) (emphasis added) (quoting Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam)).
After the district court entered its decision, Nonnette was released from the incarceration of which he complains, and is now on parole. Were he to seek a writ of habeas corpus, his petition would present no case or controversy because establishing the invalidity of his disciplinary proceeding could have no effect on the 360 days of additional incarceration or the 100 days of administrative segregation that resulted from it. Nor could such relief have any effect on the term of his parole. As a consequence, his petition for habeas corpus would have to be dismissed as moot. See Spencer v. Kemna, 523 U.S. 1 (1998).Nonnette, 316 F.3d at 875-76.
The situation contemplated by the Ninth Circuit in Nonnette is similar to the situation presented by petitioner's due process challenge to his 2010 disciplinary proceeding at CSATF/SP. At the time petitioner initiated this action in October of 2011, he properly alleged an Article III case or controversy because he was still incarcerated and serving his sentence, which included an additional 90 days due to loss of 90 days earned credit from the disciplinary action in question.
Upon petitioner's release, however, his request for relief became moot unless he can show either (1) that so-called "collateral consequences" flow from the punishment he received for the disciplinary action in question (see Spencer, 523 U.S. at 14-16; Wilson, 319 F.3d at 479-80), or (2) that establishing the invalidity of his disciplinary proceeding and the resulting loss of 90 days credit would shorten his term of his parole, if he is currently serving one.
The Ninth Circuit has held that a federal inmate's release from prison did not render his action challenging the Bureau of Prisons' calculation of good time credits moot because of "[t]he 'possibility' that the sentencing court might exercise discretion to reduce his term of supervised release under 18 U.S.C. § 3583(e)(2)." Tablada v. Thomas, 533 F.3d 800, 802 n.1 (9th Cir. 2008) (citing Mujahid v. Daniels, 413 F.3d 991, 994-95 (2005) (same)); see also Reynolds v. Thomas, 603 F.3d 1144, 1148 (9th Cir. 2010). The federal supervised release statute allows a sentencing court considerable discretion to terminate, extend, or revoke a term of supervised release under various circumstances. See generally 18 U.S.C. §3583(e). Of course, the federal supervised release statute has no applicability to petitioner, a former state prisoner.
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"When a prisoner's claim would not 'necessarily spell speedier release,' that claim does not lie at 'the core of habeas corpus,' and may be brought, if at all, under [42 U.S.C.] § 1983. Skinner v. Switzer, 131 S. Ct. 1289, 1299 n.13 (2011) quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005); see also Skinner, 131 S. Ct. at 1299 (majority notes the Supreme Court has never recognized a writ of habeas corpus as an available remedy where the relief sought would neither terminate custody, accelerate the future release date, nor reduce the level of custody).
In sum, because petitioner has already served the 90 day term of incarceration that resulted from the finding of guilt on his challenged 2010 disciplinary action, it appears there is no relief which this court can afford and petitioner's due process claim has become moot. See Spencer, 523 U.S. at 12-14; Wilson, 319 F.3d at 480. Further, the facts of this case do not fall within the exception for claims that are "capable of repetition, yet evading review," because the mere possibility of repetition is too speculative. See Williams, 549 F.2d at 143. Accordingly, petitioner may attempt to show cause why his petition should not be dismissed as moot.
In accordance with the above, IT IS HEREBY ORDERED that:
1. To avoid dismissal of his petition, within 30 days, petitioner shall show cause why his petition for writ of habeas corpus should not be dismissed as moot. Respondent may reply within 14 days after service of petitioner's response to this order. Petitioner is instructed that failure to respond may be considered a basis for dismissal of the petition pursuant to Local Rule 110.
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CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE