(HC) Poslof v. Martel

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 LONNIE LEE POSLOF, JR., No. 2:19-cv-2321 AC P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 MICHAEL MARTEL, Warden, 15 Respondent. [16] 17 Petitioner is a California state prisoner proceeding pro se with an application for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254 . The action proceeds on a petition challenging a 19 2018 prison disciplinary finding in which petitioner was found guilty of battery on a peace officer 20 and forfeited 150 days of good-time credits. ECF No. 1. Respondent has answered, ECF No. 11, 21 and petitioner has filed a traverse, ECF No. 16. For the reasons that follow, the undersigned 22 recommends that the petition be summarily denied for lack of jurisdiction. 23 I. BACKGROUND 24 Petitioner is serving an indeterminate sentence of 15 years to life sentence for oral 25 copulation/sexual penetration with a child 10 years old or younger, as well as a determinate term 26 of 12 years for two counts of lewd acts upon a child and one count of oral copulation. On May 27 17, 2018, there was an altercation between petitioner and Correctional Officer Ma. Petitioner 28 subsequently received a rules violation report (RVR) charging him with battery. The officer 1 reported that petitioner had been agitated and was kicking a door, and that petitioner kicked the 2 officer in the hand and wrist when he tried to intervene. The officer took petitioner to the ground. 3 Because petitioner has a history of mental health issues, a staff assistant was assigned to 4 help him participate in the disciplinary process. Lodged Document 3 (ECF No. 12-3) at 3. 5 Petitioner was also assigned an Investigative Employee to assist him in collecting information and 6 presenting evidence at the hearing. The Investigative Employee interviewed petitioner, and 7 drafted written questions for six witnesses. Lodged Doc. 4 (ECF No. 12-4). At the hearing, 8 petitioner’s witness questions were deemed irrelevant to charge at issue. Lodged Document 3 9 (ECF No. 12-3) at 3. 10 A hearing on the RVR was held on June 22, 2018. Petitioner was provided the 11 opportunity to be heard, and he denied kicking CO Ma. The hearing officer found petitioner 12 guilty of battery of a peace officer. The written statement of reasons cited the following 13 evidence: (1) CO Ma’s written report; (2) the written report of another CO, who had witnessed 14 the incident; (3) a photograph of CO Ma’s swollen hand; and (4) an injury report documenting a 15 swollen area on CO Ma’s hand. Lodged Doc. 3 (ECF No. 12-3) at 6. 16 Petitioner filed an administrative appeal challenging the guilt finding, and exhausted his 17 administrative remedies. Lodged Docs. 5, 6 (ECF No. 12-5, 12-6). He then filed habeas petitions 18 in the San Joaquin County Superior Court, the California Court of Appeal, and the California 19 Supreme Court, exhausting his state court remedies. Lodged Docs. 7 through 12 (ECF No. 12-7 20 through 12-12). 21 II. THE FEDERAL PETITION 22 Petitioner presents five putative claims: (1) the refusal to permit videotape evidence at the 23 disciplinary hearing violated prison regulations; (2) the refusal to permit witness testimony at the 24 disciplinary hearing violated prison regulations; (3) the refusal to permit videotape and witness 25 testimony violated petitioner’s due process rights; (4) no evidence supports the finding of battery 26 on a peace officer; and (5) petitioner is entitled to a new hearing with introduction of the 27 videotape evidence and witness testimony. ECF No. 1 at 7. 28 //// 1 III. SCOPE OF FEDERAL HABEAS CORPUS JURISIDICTION 2 Claims in a federal habeas petition must lie at the core of habeas corpus in order to 3 proceed. See Preiser v. Rodriguez, 411 U.S. 475, 487 (1973); Nettles v. Grounds, 830 F.3d 922 , 4 931 (9th Cir. 2016) (en banc), cert. denied, 580 U.S. 1063 (2017). Specifically, habeas 5 jurisdiction extends only to claims challenging the validity or actual duration of a prisoner’s 6 confinement. Muhammad v. Close, 540 U.S. 749, 750 (2004); Dominguez v. Kernan, 906 F.3d 7 1127, 1137 (9th Cir. 2018). This requirement is readily met when a prisoner challenges his 8 conviction or sentence. When the challenge is to internal prison disciplinary proceedings, 9 however, habeas jurisdiction exists only if success on petitioner’s claims would necessarily result 10 in his speedier release from custody. Nettles, 830 F.3d at 934-35 ; see also Ramirez v. Galaza, [11] 334 F.3d 850, 859 (9th Cir. 2003). 12 The Ninth Circuit has found habeas jurisdiction lacking where a California petitioner was 13 serving an indeterminate sentence and had not been found suitable for parole. Nettles, 830 F.3d 14 at 934-35 . In such circumstances, expungement of disciplinary findings and restoration of credits 15 might increase the likelihood of a future grant of parole, but would not guarantee parole or 16 otherwise “necessarily result in speedier release” under state law. Id. 17 IV. DISCUSSION 18 This court can entertain petitioner’s challenge to his 2018 prison disciplinary proceeding 19 only if its outcome has a necessary effect on the duration of petitioner’s confinement. See 20 Skinner v. Switzer, 562 U.S. 521 , 525 & n.13 (2011) (federal habeas jurisdiction lies only where 21 success on claim would “necessarily spell speedier release from prison”) (internal quotations 22 omitted). A 150- day credit loss can have a “necessary” effect on the duration of confinement 23 only if there is an otherwise certain release date which is postponed as the result of credit 24 recalculation. In California this requires either a determinate sentence or, in the case of an 25 indeterminately sentenced inmate, a prior finding of parole suitability. See Nettles, 830 F.3d at 26 934-35. Because petitioner is serving an indeterminate sentence of 15 years to life imprisonment, 27 and has not previously been found suitable for parole and granted a concrete release date, his 28 credit forfeiture can have no more than an attenuated or speculative relationship to the ultimate 1 || duration of his incarceration. See id. at 935 (because future parole suitability decisions turn on 2 || multiple factors, “the presence of a disciplinary infraction does not compel the denial of parole, 3 || nor does the absence of an infraction compel the grant of parole.”); see also Neal v. Shimoda, 131 4 | F.3d 818, 824 (9th Cir. 1997) (recognizing that relief which would improve future parole 5 || eligibility does not “guarantee parole or necessarily shorten... prison sentences by a single □□□□□□□ 6 Because restoration of petitioner’s forfeited good time credits would not “necessarily spell 7 || speedier release from prison,” his challenge to the disciplinary hearing falls outside the core of 8 || federal habeas corpus. See Nettles, 830 F.3d at 934-35 . The petition should be denied on that 9 || basis. 10 CONCLUSION 11 For all the reasons explained above, IT IS HEREBY ORDERED that the Clerk of Court 12 | randomly assign a U.S. District Judge to this action. 13 IT IS FURTHER RECOMMENDED that the petition for writ of habeas corpus be denied 14 | as outside this court’s habeas jurisdiction. 15 These findings and recommendations are submitted to the United States District Judge 16 || assigned to the case, pursuant to the provisions of 28 U.S.C. §636 (b)(1). Within twenty-one days 17 || after being served with these findings and recommendations, any party may file written 18 || objections with the court and serve a copy on all parties. Such a document should be captioned 19 | “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, 20 || he shall also address whether a certificate of appealability should issue and, if so, why and as to 21 || which issues. See 28 U.S.C. § 2253 (c)(2). Any reply to the objections shall be served and filed 22 || within fourteen days after service of the objections. The parties are advised that failure to file 23 || objections within the specified time may waive the right to appeal the District Court’s order. 24 | Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 25 || DATED: April 29, 2024 ~ 26 Hhthter— Chane ALLISON CLAIRE 27 UNITED STATES MAGISTRATE JUDGE