Opinion
Case No. CV 18-6605 JLS (SS)
02-21-2019
JUAN CARLOS SUAREZ, Petitioner, v. STU SHERMAN, Warden, Respondent.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records and files herein, the Report and Recommendation of the United States Magistrate Judge, and Petitioner's Objections. After having made a de novo determination of the portions of the Report and Recommendation to which Objections were directed, the Court concurs with and accepts the findings and conclusions of the Magistrate Judge. However, the Court addresses portions of the Objections, as discussed below.
In his Objections, Petitioner argues that his case is distinguishable from the authority cited in the Report and Recommendation. In making these arguments, Petitioner relies on several facts not pleaded in the Petition or raised in Petitioner's Opposition to the Motion to Dismiss, such as the fact that Petitioner is serving a determinate sentence or the fact that the Board of Parole Hearings cited Petitioner's rules violation report ("RVR") when parole was denied. However, these "new" facts do not change the outcome here.
As explained in the Report and Recommendation, unless a claim falls within the core of habeas corpus, which requires a showing that "success in that action would necessarily demonstrate the invalidity of confinement or its duration," Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005), the "exclusive vehicle" for due process claims brought by state prisoners is 42 U.S.C. § 1983. See Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc). In Nettles, the petitioner claimed that if his RVR were expunged, he would be likely to receive a prompt and more favorable parole hearing. The Ninth Circuit determined that the prisoner's claim did not fall within the core of habeas corpus because "the presence of a disciplinary infraction does not compel the denial of parole, nor does an absence of an infraction compel the grant of parole," id. at 935, and as such, expungement of the RVR "would not necessarily lead to immediate or speedier release." Id. at 934 (emphasis added).
Petitioner contends that his situation is distinguishable because, unlike the petitioner in Nettles, he is serving a determinate term, the Board of Parole Hearings "specifically cited [Petitioner's] RVR in denying consideration under Proposition 57," and the RVR and its findings were the "'sole' relevant and reliable information the BOP is using to deny [P]etitioner consideration" for parole. (Obj. at 3). "Proposition 57 gives those prisoners convicted of nonviolent felony offenses a state law right to be 'eligible for parole consideration after completing the full term for his or her primary offense.'" Travers v. People of the State of California, 2018 WL 707546, at *3 (N.D. Cal. Feb. 5, 2018). However, as the Travers court explained, claims under Proposition 57, to the extent that they may be considered at all in federal court, would fall under § 1983 because Proposition 57 only makes a prisoner eligible for parole consideration under certain circumstances, but "does not command [the prisoner's] release from prison." Id.
Furthermore, as the Nettles court observed, the absence of a rules violation report from a prisoner's file would not compel the Board of Parole Hearings to grant parole, and therefore would not necessarily lead to a prisoner's earlier release. Accordingly, Petitioner's due process claims do not fall within the core of habeas corpus. See Grigsby v. Fox, 2018 WL 2010416, at *3 (E.D. Cal. Apr. 30, 2018) (because denial of parole consideration under Proposition 57 "would not necessarily impact the duration of [a prisoner's] confinement," a claim based on that denial "cannot proceed as a habeas corpus case"); Gaffeney v. Koenig, 2018 WL 5999641, at *2 (E.D. Cal. Nov. 15, 2018) (Proposition 57 provides for "a discretionary parole hearing where the parole board could decline to grant parole," and as such, a claim alleging the wrongful denial of relief under Proposition 57 "does not fall within the 'core of habeas corpus'"); Hernandez v. Angela, 2018 WL 6250857, at *2 (E.D. Cal. Nov. 29, 2018) (same); Knapp v. L.A. County Sheriff's Dept., 2018 WL 6505992, at *7, n.10 (C.D. Cal. Dec. 11, 2018) (same).
For the foregoing reasons,
IT IS ORDERED that Respondent's Motion to Dismiss is GRANTED. The Petition is DENIED and Judgment shall be entered dismissing this action without prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on Petitioner at his address of record.
LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: February 21, 2019
/s/_________
JOSEPHINE L. STATON
UNITED STATES DISTRICT JUDGE