DAMOUS D. NETTLES, Petitioner-Appellant,
RANDY GROUNDS, Warden, Respondent-Appellee. MATTA JUAN SANTOS, Petitioner-Appellant,
K. HOLLAND and JEFFREY BEARD, Respondents-Appellees
Argued and Submitted, San Francisco, California October 6, 2014.
Appeal from the United States District Court for the Eastern District of California. D.C. No. 1:11-cv-01201-AWI-JLT. Anthony W. Ishii, Senior District Judge, Presiding. Appeal from the United States District Court for the Eastern District of California. D.C. No. 1:12-cv-01651-LJO-GSA. Lawrence J. O'Neill, District Judge, Presiding.
The panel affirmed the district court's dismissal of California state prisoner Damous Nettles's habeas corpus petition seeking expungement of a prison rules violation report and restoration of thirty days of post-conviction credit; and reversed the district court's dismissal of California state prisoner Matta Juan Santos's habeas corpus petition claiming that the process by which the prison validated his gang involvement violated his due process rights and seeking release from his resulting confinement in the security housing unit.
Applying Skinner v. Switzer, 562 U.S. 521, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011), the panel held that a claim challenging prison disciplinary proceedings is cognizable in habeas only if it will " necessarily spell speedier release" from custody, meaning that the relief sought will either terminate custody, accelerate the future date of release from custody, or reduce the level of custody; and that to the extent this court's prior decisions held that a claim is cognizable in habeas if success on the claim is likely to, or has the mere potential to, affect the length of a petitioner's confinement, they are overruled as irreconcilable with Skinner.
The panel held that because neither the expungement of the rules violation report nor restoration of the lost good-time credits would necessarily accelerate the future date of Nettles's release from custody, his claim is not cognizable under the habeas statute.
The panel wrote that it remains bound by the determination in Bostic v. Carlson, 884 F.2d 1267 (9th Cir. 1989), that there is habeas jurisdiction over a claim that would result in release from disciplinary segregation to the general prison population. The panel therefore held that the district court erred in dismissing Santos's petition that seeks a remedy -- expungement of the gang validation and release from the security housing unit to the general population -- that can fairly be described as a quantum change in the level of custody. The panel remanded for further proceedings on the merits of Santos's claim.
Judge Murguia concurred in part and dissented in part. She disagreed with the majority that a footnote of dicta in Skinner defines the scope of habeas jurisdiction and abrogates the decisions in Bostic (habeas jurisdiction is proper when a prisoner seeks expungement of a disciplinary finding if " expungement is likely to accelerate the prisoner's eligibility for parole" ), and Docken v. Chase, 393 F.3d 1024 (9th Cir. 2004) (habeas jurisdiction is proper when a prisoner's challenge to parole procedures " could potentially affect the duration of . . . confinement" ). She would reverse and remand in both cases because Santos and Nettles have each asserted a cognizable habeas claim under the law of this circuit.
Monica Knox (argued), Assistant Federal Defender; Heather Williams, Federal Defender, Sacramento, California, for Petitioner-Appellant Damous D. Nettles.
Peggy Sasso (argued), Assistant Federal Defender; Heather Williams, Federal Defender, Fresno, California, for Petitioner-Appellant Matta Juan Santos.
Andrew R. Woodrow (argued), Deputy Attorney General; Kamala D. Harris, Attorney General of California; Jennifer A. Neill, Senior Assistant Attorney General; Phillip J. Lindsay, Supervising Deputy Attorney General, Sacramento, California, for Respondent-Appellee Randy Grounds, Warden.
Amy Daniel (argued), Deputy Attorney General; Kamala D. Harris, Attorney General of California; Jennifer A. Neill, Senior Assistant Attorney General; Jessica N. Blonien, Supervising Deputy Attorney General, Sacramento, California, for Respondents-Appellees K. Holland and Jeffrey Beard.
Before: Sandra S. Ikuta, N. Randy Smith, and Mary H. Murguia, Circuit Judges. Opinion by Judge Ikuta; Partial Concurrence and Partial Dissent by Judge Murguia.
IKUTA, Circuit Judge:
The two appeals consolidated in this opinion require us to identify the appropriate standard for determining whether a
claim is cognizable under the federal habeas statute. Applying Skinner v. Switzer, we conclude that a claim challenging prison disciplinary proceedings is cognizable in habeas only if it will " necessarily spell speedier release" from custody, meaning that the relief sought will either terminate custody, accelerate the future date of release from custody, or reduce the level of custody. 562 U.S. 521, 131 S.Ct. 1289, 1299 n.13, 179 L.Ed.2d 233 (2011) (emphasis added) (internal quotation marks omitted) (citing Wilkinson v. Dotson, 544 U.S. 74, 86, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) (Scalia, J., concurring)). To the extent our prior decisions held that a claim is cognizable in habeas if success on the claim is likely to, or has the mere potential to, affect the length of a petitioner's confinement, they are overruled as irreconcilable with Skinner. See Blair v. Martel, 645 F.3d 1151, 1157 (9th Cir. 2011).
Damous Nettles and Matta Juan Santos, both prisoners in California state prisons, appeal the district court's dismissal of their habeas petitions.
In 1990, Nettles was convicted in California of attempted first degree murder with use of a firearm, and other offenses. The victim was a woman who had filed a complaint against Nettles's brother. In order to prevent her from testifying, Nettles took the victim down an alley, ordered her onto her hands and knees, and told her " You're not going to testify against my brother. I'm going to kill you." Nettles then shot her twice in the left ear and left her in the alley. The victim did not die, but was seriously injured and disfigured.
Nettles was sentenced to prison for a determinate term of twelve years and a life term with the possibility of parole for his convictions for attempted murder and dissuading and conspiring to dissuade a witness from attending or giving testimony at trial. His minimum eligible parole date was October 19, 2005. An initial parole consideration hearing was held in 2004. Before that hearing, prison staff had issued some thirty-nine rules violations reports (CDC Form 115) to Nettles. These reports are issued for misconduct that " is believed to be a violation of law or is not minor in nature." Cal. Code Regs. tit. 15, § 3312(a)(3). He also received numerous citations for lesser types of misconduct. See id. § 3312(a)(2) (noting that " documentation of minor misconduct" should be " documented on a CDC Form 128-A" ). At his initial parole hearing in 2004, the Board of Prison Terms (now the Board of Parole Hearings, or Board) deemed Nettles to be unsuitable for parole and declined to set a parole date. It scheduled the next parole suitability hearing for 2006, but the date was postponed several times.
After 2004, Nettles received seven additional rules violations reports. On February 26, 2008, staff issued Nettles a rules violation report for threatening to stab a corrections officer. After an investigation of the incident and a hearing, Nettles was found guilty, and given a four-month term in the segregated housing unit. He also lost thirty days of postconviction credit.
On July 30, 2009, the Board convened a second parole suitability hearing for Nettles. At the hearing, the presiding commissioner first described the facts of Nettles's
crime, characterizing it as " one of the most atrocious and cruel acts I've read" and stating that Nettles's motive was " ridiculously heinous."
The commissioner then reviewed Nettles's prior criminal history. Nettles had a long string of convictions beginning at age seventeen, and had been in and out of prison for offenses including possession of drugs, assault with a deadly weapon, battery on a peace officer, and robbery. Nettles was on parole for the robbery conviction when he committed the attempted murder for which he was sentenced to life imprisonment.
The commissioner stated that Nettles's lengthy criminal history illustrated his inability to learn from prior imprisonments. The commissioner next explained the hearing panel's concerns about Nettles's mental state and attitude about the crime. In the hearing panel's view, Nettles's letter to the victim did not express true remorse. Further, Nettles had not taken responsibility for his conduct and lacked insight that would enable him to change his behavior. The commissioner discussed a May 2007 psychological report, which gave Nettles " a rating of overall moderate likelihood to become involved in a violent offense if released." Finally, the commissioner stated that Nettles was argumentative and stubborn, " challenge[d] authority at every given opportunity" and refused to restrain himself, as evidenced by his numerous rules violations. The commissioner noted the forty-six rules violation reports that had been issued to Nettles while he was in prison. Nettles " continued to display negative behavior while incarcerated," and as a result was placed in segregated housing. Moreover, Nettles had not taken any significant steps to gain skills to function outside of prison. Nevertheless, the commissioner noted some positive steps Nettles had taken, including a slight reduction in the number of rules violations reports issued to Nettles in recent years.
The hearing panel concluded that Nettles was unsuitable for parole because he " still pose[d] an unreasonable risk of danger if released from prison." This finding was " based on weighing the considerations provided in the California Code of Regulations." As authorized by the regulations, id. § 2306, the commissioner made recommendations regarding " what steps may be undertaken to enhance the possibility of a grant of parole at a future hearing," id. § 2304, telling Nettles that " [f]or next time, you certainly need to become and remain disciplinary free."
On January 23, 2009, Nettles filed a habeas petition in the Superior Court of California claiming, in relevant part, that the 2008 rules violation report was illegal, and that the disciplinary proceedings held in connection with the 2008 rules violation report violated his due process rights. The Superior Court denied the petition, concluding that Nettles failed to exhaust his administrative remedies concerning these claims. The California Court of Appeal and California Supreme Court then summarily denied the petition.
On June 10, 2011, Nettles filed a habeas petition in federal court seeking, among other things, " restoration of good time," presumably referring to the loss of thirty days of post-conviction credits as a result of the 2008 disciplinary decision, and expungement of the February 26, 2008 rules violation report. After being ordered to respond, the state moved to dismiss the petition, arguing that the court lacked jurisdiction to entertain the petition because the 2008 disciplinary decision did not impact
the fact or duration of Nettles's confinement. Nettles opposed the motion, arguing that the disciplinary decision impacted the duration of his confinement because it delayed his parole hearing and constituted grounds for future denial of parole.
The district court dismissed Nettles's petition, holding that he could not show that expungement of the 2008 rules violation report was likely to accelerate his eligibility for parole. ...