Opinion
No. 2:15-cv-1397 CKD P
09-28-2015
ALEJANDRO FUENTES, Petitioner, v. JEROME PRICE, Respondent.
ORDER
I. Introduction
Petitioner is a state prisoner proceeding pro se who has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Petitioner has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
II. Facts
Petitioner is serving a state prison term of 16 years to life pursuant to a 1997 conviction. (ECF No. 1 at 1.) He challenges a 2012 disciplinary conviction for "Possession of a Controlled Substance for Distribution," for which he was assessed a nine-month term in the Security Housing Unit (SHU) of California State Prison-Solano. (See ECF No. 1 at 19.) Petitioner asserts that the disciplinary conviction was obtained in violation of his federal constitutional rights. (Id. at 5-9.) Attached records indicate that in July 2014, the prison's Institution Classification Committee "assessed, imposed, and suspended" a nine-month SHU term for the 2012 conviction, an action approved by the Classification Staff Representative in August 2014. (Id. at 19.)
It is not clear whether petitioner ever served a term in SHU pursuant to the 2012 disciplinary conviction. (See id. ("The examiner thoroughly reviewed all documents . . . and finds that the appellant did not serve a SHU term relative to" the 2012 disciplinary conviction.)). Moreover, attached records indicate that the "Maximum Date of Release from SHU" for the 2012 conviction was February 15, 2013. (Id. at 36.) From this record, it does not appear that petitioner was in SHU when he commenced this action in July 2015.
III. Habeas Jurisdiction
A habeas corpus petition is the correct method for a prisoner to challenge the legality or duration of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973)). In Nettles v. Grounds, 788 F.3d 992, 1001 (9th Cir. 2015), the Ninth Circuit held that habeas jurisdiction extends to claims involving prison disciplinary convictions only if petitioner's success on the claim "would 'necessarily spell speedier release' from custody," which "would include termination of custody, acceleration of future date of release from custody, or reduction of the level of custody." See Skinner v. Switzer, 562 U.S. 521, 533-34 (2011). Applying Skinner, the Nettles court held that the district court lacked jurisdiction over the discipline-related claim of a California inmate serving an indeterminate life sentence who had passed his Minimum Eligible Parole Date ("MEPD") and not yet been found suitable for parole. Under these circumstances, neither expungement of the disciplinary finding nor restoration of lost good-time credits would "necessarily" accelerate his release. Nettles, 788 F.3d at 1004. Thus, the petitioner's claim was not cognizable in federal habeas. Id.
Here, it appears that petitioner is serving an indeterminate life sentence. (ECF No. 1 at 1.) His MEPD was November 18, 2011. (Id. at 44.) No credit loss was assessed as a result of his 2012 conviction. (Id. at 38.) On this record, it does not appear that this court has habeas jurisdiction based on the possibility of petitioner's speedier release from prison custody.
Alternatively, an inmate's potential release from a higher "quantum" of custody within a prison can be a basis for federal habeas jurisdiction. In Nettles, 788 F.3d at 1005, the Ninth Circuit held that habeas jurisdiction exists for a prisoner who seeks "expungement of an incident from his disciplinary record when that would lead to speedier release from disciplinary segregation" - i.e., a "quantum change" in the level of custody from the SHU to the general prison population. However, once an inmate's SHU term ends, "there is no longer . . . a basis for habeas jurisdiction" under the "quantum change" theory. Pratt v. Hedrick, 2015 WL 3880383, *3 (N.D. Cal. June 23, 2015).
Here, it does not appear that petitioner was seeking release from SHU when he commenced this action. In fact, he was no longer housed at CSP-Solano. (ECF No. 1 at 1.) Thus there appears to be no basis for federal habeas jurisdiction in this case.
Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254 provides for summary dismissal of a habeas petition "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." For the foregoing reasons, the court will dismiss the petition. However, petitioner will be granted one opportunity to file an amended petition that asserts a basis for this court's habeas jurisdiction under the standard set forth above.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner is granted leave to proceed in forma pauperis;
2. Petitioner's application for writ of habeas corpus is dismissed with leave to amend within thirty days from the date of this order;
By setting this deadline, the court is making no finding or representation that the petition is not subject to dismissal as untimely. --------
3. Any amended petition must bear the case number assigned to this action and the title "Amended Petition"; and
4. The Clerk of the Court is directed to send petitioner the court's form for application for writ of habeas corpus. Dated: September 28, 2015
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
2/fuen1397.nett