Damous Nettles v. Randy Grounds

Partial Concurrence by Judge HURWITZ;

Dissent by Judge BERZON

OPINION

Damous Nettles, a prisoner serving a life sentence in California prison, appeals the district court’s dismissal of his habeas petition for lack of jurisdiction. The petition challenged a disciplinary violation on constitutional grounds and claimed that the failure to expunge this violation from *925 his record could affect his eligibility for parole. We conclude that because Nettles’s claim does not fall within the “core of habeas corpus,” Preiser v. Rodriguez, 411 U.S. 475, 487 , 93 S.Ct. 1827 , 36 L.Ed.2d 439 (1973), it must be brought, if at all,, under 42 U.S.C. § 1983 .

I

In 1990, Nettles was convicted in California of attempted first degree murder with the 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…

concurring in part:

Until 2011, the Supreme Court had not yet spoken clearly on the issue reserved in Preiser v. Rodriguez: the availability of habeas corpus relief “as an alternative remedy to a proper action under § 1983.” 411 U.S. 475, 500 , 93 S.Ct. 1827 , 36 L.Ed.2d 439 (1973). But, things have changed.

In Wilkinson v. Dotson, the Court confirmed that a suit under 42 U.S.C. § 1983 “will not he when a state prisoner challenges the fact or duration of his confine *937 ment, and seeks either immediate release from prison, or the shortening of his term of confinement.” 544 U.S. 74, 79 , 125 S.Ct. 1242 , 161 L.Ed.2d 253 (2005) (citations and quotation marks omitted). As in Preiser, the Dotson majority did not address whether 28 U.S.C. §2254 habeas corpus jurisdiction is confined to such challenges, contenting itself to find that the respondents’ claims fell outside the “implicit ha-beas exception” and were cognizable under § 1983. Id. at 82, 125 S.Ct. 1242 . But, Justice Scalia’s concurrence squarely addressed the issue now before us. He contended that allowing suits like .the one before us today to proceed under §.2254 “would require us to broaden the scope of habeas relief…

joined by THOMAS, Chief Judge, and FLETCHER, MURGUIA, and NGUYEN, Circuit Judges, dissenting:

Damous Nettles was denied parole. He argues the parole board’s decision was based at least in part on a disciplinary proceeding in which he was denied due process. Today’s majority opinion responds that if Nettles were successful on his claim, it “would not necessarily lead to his immediate or earlier release from confínement,” because the parole board could deny him parole even without considering the disciplinary proceeding at issue. Pr. Op. at 935. 1 The majority therefore holds that Nettles cannot seek a writ of habeas corpus. This response flouts our normal approach to alleged violations of procedural rights and is inconsistent with the statutes and precedent governing petitions for habeas corpus. I therefore respectfully dissent.

I

When the violation of a procedural right is alleged, the constitutional claim cannot be dismissed just by noting that the proceeding in question might have come out the same way absent the alleged violation. “[T]he right to procedural due process is ‘absolute’ in the sense that it does not depend upon the merits of a claimant’s substantive…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAMOUS D. NETTLES, No. 12-16935 Petitioner-Appellant, D.C. No. v. 1:11-cv-01201-AWI-JLT

RANDY GROUNDS, Warden, Respondent-Appellee. OPINION

Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, Senior District Judge, Presiding

Argued and Submitted En Banc March 22, 2016 San Francisco, California

Filed July 26, 2016

Before: Sidney R. Thomas, Chief Judge and William A. Fletcher, Marsha S. Berzon, Johnnie B. Rawlinson, Richard R. Clifton, Consuelo M. Callahan, Sandra S. Ikuta, N. Randy Smith, Mary H. Murguia, Jacqueline H. Nguyen and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Ikuta; Partial Concurrence by Judge Hurwitz; Dissent by Judge Berzon SUMMARY*

Habeas Corpus / Prisoner Civil Rights

The en banc court vacated the district court’s dismissal of a matter, brought as a habeas corpus petition by a California state prisoner serving a life sentence, challenging a disciplinary violation on constitutional grounds and claiming that the failure to expunge this violation from…