1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 REGINALD GLOVER, Case No. 19-cv-00148-HSG

8 Petitioner, ORDER GRANTING RESPONDENT’S MOTION TO DISMISS; DENYING 9 v. CERTIFICATE OF APPEALABILITY

10 CRAIG KOENIG, Re: Dkt. No. 15 11 Respondent.

12 13 Petitioner Reginald Glover, an inmate at Correctional Training Facility – Central, in 14 Soledad, California, filed a petition for a writ of habeas corpus pursuant to

15 challenging a prison disciplinary finding. Respondent has filed a motion to dismiss this petition 16 for lack of federal habeas jurisdiction. Dkt. No. 15. Petitioner has not filed an opposition or 17 otherwise contacted the Court, and the deadline to file an opposition has since passed. For the 18 reasons set forth below, the Court GRANTS respondent’s motion to dismiss. 19 DISCUSSION 20 A. Background 21 In 1992, petitioner was sentenced to an indeterminate term of 25 years to life. Dkt. No. 15 22 at 6. In the instant petition, petitioner alleges that his due process rights were violated during 23 disciplinary proceedings that stemmed from an incident on March 9, 2016, which resulted in him 24 losing time credits. Dkt. No. 1-1 at 2‒3, 5‒6. Petitioner seeks the reversal of his guilty finding 25 and the restoration of his time credits. Dkt. No. 1-2 at 3. 26 B. Motion to Dismiss 27 Respondent has filed a motion to dismiss this petition for lack of federal habeas 1 release from prison or change the quantum of his custody. Respondent is correct that federal 2 habeas jurisdiction is lacking here. Habeas is the “exclusive remedy” for the prisoner who seeks 3 “‘immediate or speedier release’” from confinement. Skinner v. Switzer,

, 533-34 4 (2011) (quoting Wilkinson v. Dotson,

(2005)). Habeas is not the proper remedy to 5 challenge a disciplinary finding where reversal of the finding would not necessarily lead to a grant 6 of parole (and consequently speedier release), because many factors are considered in decision 7 whether to grant parole and parole could still be denied if the disciplinary finding were reversed. 8 See Nettles v. Grounds,

(9th Cir. 2016). For a habeas petitioner serving an 9 indeterminate sentence, a restoration of time credits will not necessarily speed his or her release. 10 There is therefore no federal habeas jurisdiction for a challenge to a disciplinary decision that 11 resulted in lost time credits if brought by a habeas petitioner serving an indeterminate sentence.1 12 Similarly, there is no federal habeas jurisdiction for a claim based on the premise that an 13 unexpunged disciplinary decision might affect parole. Parole decisions are based on many factors, 14 prison disciplinary decisions being just one of them. Nettles,

. 15 The record shows that petitioner has been sentenced to an indeterminate term of 25 years 16 to life. Dkt. No. 15 at 6. Petitioner can therefore can only be released from prison if the Board of 17 Parole Hearings and the governor independently conclude that he is suitable for parole. In re 18 Lawrence,

(2008);

(b)(1), 3041.2; 15 Cal. Code 19 Regs. § 2042(b). Expunging a prison disciplinary decision and ordering the restoration of any lost 20 credits will not impact the fact or duration of petitioner’s confinement. In other words, success on 21 the claim raised in this action would not necessarily shorten his sentence. See Nettles,

934-35. Accordingly, the Court GRANTS respondent’s motion to dismiss the petition for lack of 23 federal habeas jurisdiction. This dismissal is without prejudice to petitioner bringing his due 24 process claim in a civil rights action.2 25 1 However, there is federal habeas jurisdiction for a challenge regarding lost time credits brought 26 by a habeas petitioner serving a determinate sentence because a restoration of time credits will indeed speed release. 27 2 Although a district court may construe a habeas petition by a prisoner attacking the conditions of 1 CERTIFICATE OF APPEALABILITY 2 The federal rules governing habeas cases brought by state prisoners require a district court 3 that issues an order denying a habeas petition to either grant or deny therein a certificate of 4 appealability. See Rules Governing Habeas Corpus Cases Under Section 2254, Rule 11(a). 5 A judge shall grant a certificate of appealability “only if the applicant has made a 6 substantial showing of the denial of a constitutional right,”

(c)(2), and the 7 certificate must indicate which issues satisfy this standard,

§ 2253(c)(3). “Where a district 8 court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) 9 is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find the district 10 court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

473, 484 (2000). 12 Here, petitioner has not made such a showing, and, accordingly, a certificate of 13 appealability will be denied. 14 CONCLUSION 15 For the foregoing reasons, the Court GRANTS respondent’s motion to dismiss, 16 DISMISSES the petition for lack of federal habeas jurisdiction without prejudice to petitioner 17 bringing his due process claim in a civil rights action, and DENIES a certificate of appealability. 18 The Clerk of the Court shall terminate all pending motions, enter judgment and close the file. The 19 Clerk shall also send petitioner a blank civil rights complaint form with his copy of this Order. 20 // 21 // 22

23 petition as a civil rights complaint is that the two forms used by most prisoners request different information and much of the information necessary for a civil rights complaint is not included in 24 the habeas petition filed here. Examples of the potential problems created by using the habeas petition form rather than the civil rights complaint form include the potential omission of intended 25 defendants, potential failure to link each defendant to the claims, and potential absence of an adequate prayer for relief. Additionally, there is doubt whether the prisoner is willing to pay the 26 $400.00 civil action filing fee, or $350.00 filing fee if proceeding in forma pauperis, to pursue his claims. It is not in the interest of judicial economy to allow prisoners to file civil rights actions on 27 habeas forms because virtually every such case, including this one, will be defective at the outset 1 This order terminates Dkt. No. 15. 2 IT IS SO ORDERED. 3 Dated: 11/27/2019

ma S. GILLIAM, JR. / 2 5 United States District Judge 6 7 8 9 10 11 a 12

14

15 16

= 17

Z 18 19 20 21 22 23 24 25 26 27 28