1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ABDULLAH W. MUSTAFAA, a/k/a Case No. 19-cv-04105-EMC

TERRANCE MATTHEWS

8 (CDCR # E-24447),

ORDER OF DISMISSAL

9 Petitioner, Docket No. 1 10 v.

11 RONALD DAVIS,

12 Respondent.

13 14 I. INTRODUCTION 15 Abdullah W. Mustafaa, also known as Terrance Matthews, a prisoner at San Quentin State 16 Prison, filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He 17 contends that he wrongfully has been denied the ability to earn certain time credits against his 18 sentence. His petition for writ of habeas corpus is now before the Court for review pursuant to 28 19 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United States District 20 Courts. 21 II. BACKGROUND 22 A. Proposition 57 and Time Credit Earning Opportunity 23 California’s Proposition 57, approved by voters in November 2016, makes parole more 24 available for certain felons convicted of nonviolent crimes. Specifically, Proposition 57 adds 25 Article I, section 32 to the California Constitution. That section provides:

26 (a) The following provisions are hereby enacted to enhance public safety, improve rehabilitation, and avoid the release of prisoners by 27 federal court order, notwithstanding anything in this article or any (1) Parole Consideration: Any person convicted of a nonviolent 1 felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her 2 primary offense. . . .

3 (2) Credit Earning: The Department of Corrections and Rehabilitation shall have authority to award credits earned for good 4 behavior and approved rehabilitative or educational achievements.

5 (b) The Department of Corrections and Rehabilitation shall adopt regulations in furtherance of these provisions, and the Secretary of 6 the Department of Corrections and Rehabilitation shall certify that these regulations protect and enhance public safety. 7 8 Cal. Const. art. I, § 32. 9 Following Proposition 57, the California Department of Corrections and Rehabilitation 10 (CDCR) amended and added some regulations. One of the new regulations is section 3043.2, 11 regarding the earning of good conduct time credits. As relevant here, the regulation provides that 12 “[o]ne day of credit for every two days of incarceration (33.3%) shall be awarded to an inmate 13 sentenced under the Three Strikes Law, under subdivision (c) of section 1170.12 of the Penal 14 Code, or under subdivision (c) or (e) of section 667 of the Penal Code, who is not serving a term 15 for a violent felony as defined in subdivision (c) of section 667.5 of the Penal Code.” 15 Cal. 16 Code Regs. § 3043.2(b)(3) (emphasis added). The award of such good conduct time credits “shall 17 advance an inmate's release date if sentenced to a determinate term or advance an inmate's initial 18 parole hearing date pursuant to subdivision (a)(2) of section 3041 of the Penal Code if sentenced 19 to an indeterminate term with the possibility of parole. 15 Cal. Code Regs. § 3043.2(b). 20 B. Allegations In Petition 21 The petition and attachments provide the following information: 22 In 1996, Mr. Mustafaa was convicted in Alameda County Superior Court of committing a 23 lewd and lascivious act on a child under age 14 (see Cal. Penal Code § 288(a)) and penetration 24 with a foreign object (see Cal. Penal Code § 289(j)). Allegations that he had committed prior 25 felonies were found true. Mr. Mustafaa currently is in custody serving a sentence of 35 years to 26 life in prison. See Docket No. 1 at 55 (Nov. 6, 1998 abstract of judgment). The sentence is 27 comprised of 25 years to life with the possibility of parole for the lewd and lascivious act on a 1 penetration with a foreign object was stayed. Id. 2 Prison officials have determined that Mr. Mustafaa may not receive good conduct time 3 credits at the 33.3% rate under § 3043.2(b)(3). They have declined to allow him to earn good 4 conduct credits at the 33.3% rate because, according to them, Mr. Mustafaa’s lewd and lascivious 5 conduct offense was a “violent felony” under California Penal Code § 667.5, and that makes him 6 ineligible under the language of the regulation. 7 Mr. Mustafaa alleges that his federal constitutional rights under the Due Process, Equal 8 Protection, and Ex Post Facto Clauses have been violated by prison officials’ refusal to allow him 9 to earn time credits at the 33.3% rate in § 3043.2(b)(3). 10 III. DISCUSSION 11 A. The Claims Cannot Be Pursued In A Habeas Action 12 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 13 custody pursuant to the judgment of a State only on the ground that he is in custody in violation of 14 the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A district court 15 considering an application for a writ of habeas corpus shall “award the writ or issue an order 16 directing the respondent to show cause why the writ should not be granted, unless it appears from 17 the application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. 18 Habeas jurisdiction is lacking for Mr. Mustafaa’s claim about the implementation of the 19 good-conduct time credit earning regulation. As explained below, because success on any of his 20 claims would not shorten or end his sentence, he can pursue his claims only in a civil rights action 21 – if he can pursue them at all in federal court. 22 In Nettles v. Grounds, 830 F.3d 922, 934-35 (9th Cir. 2016), cert. denied, 137 S. Ct. 645 23 (2017), the Ninth Circuit held that that a prisoner’s claim which, if successful, will not necessarily 24 lead to immediate or speedier release from custody falls outside the “core of habeas corpus” and 25 must be pursued (if at all) in a civil rights action under 42 U.S.C. § 1983, rather than in a habeas 26 action.1 Nettles, 830 F.3d at 927-28; see also Borstad v. Hartley, 668 F.App’x 696, 697 (9th Cir. 27 1 2016) (success on petitioners’ claims that the lengthening of intervals between parole hearings 2 caused by Marsy’s Law violated their rights under Ex Post Facto Clause “would not necessarily 3 result in a shortening of their sentences. Thus, the district court in each case lacked jurisdiction to 4 grant 28 U.S.C. § 2254 habeas relief. Nettles, 830 F.3d at 935–37.”). 5 Here, if Mr. Mustafaa were to succeed on his claim that prison officials should apply the 6 33.3% good conduct time credit rate in § 3043.2(b)(3) to him, the result would be that he could 7 accumulate more time credits. But those additional time credits would not spell immediate or 8 speedier release because Mr. Mustafaa is serving an indeterminate 35-to-life sentence. At most, 9 the award of such time credits would advance the date of his “initial parole hearing,” 15 Cal. Code 10 Regs. § 3043.2(b), if that date has not yet passed. At the initial parole hearing, and at any parole 11 hearing thereafter, a prisoner serving an indeterminate life term must be found suitable for parole 12 before he may be released from prison. See 15 Cal. Code Regs. § 2281(a) (“Regardless of the 13 length of time served, a life prisoner shall be found unsuitable for and denied parole if in the 14 judgment of the panel the prisoner will pose an unreasonable risk of danger to society from 15 prison”). It therefore does not necessarily follow that, if he earns time credits at a 33.3% rate, Mr. 16 Mustafaa will be released from prison on a date sooner than otherwise would occur because he 17 also must be found suitable for parole before he may be released from prison. 18 Under Nettles, Mr. Mustafaa’s only potential recourse in federal court is to file a civil 19 rights complaint under 42 U.S.C. § 1983 because his claim falls outside the “core of habeas 20 corpus.” Nettles, 830 F.3d at 927. Cf. Blanco v. Asuncion, 2019 WL 2144452, *3 (S. D. Cal. 21 2019) (even if prisoner serving a term of years could establish that he was entitled to retroactive 22 good time credits under Proposition 57, “he would not necessarily be entitled to earlier release 23 from prisoner” and therefore Nettles bars consideration of the claim in a habeas action); Alvarez v. 24

25 was absent due to the fact that success on the merits “would not necessarily lead to immediate or speedier release because the expungement of the challenged disciplinary violation would not 26 necessarily lead to a grant of parole.” Nettles, 830 F.3d at 934-35. Under state law, the inmate had to be found suitable for parole before he would be granted parole; “the presence of a 27 disciplinary infraction does not compel the denial of parole, nor does an absence of an infraction 1 Spearman, 2017 WL 6344358, *5-6 (E. D. Cal. 2017) (Nettles required dismissal of habeas action 2 challenging limitation on prisoner’s credit- earning ability caused by his designation as a sex 3 offender).2 4 In an appropriate case, a habeas petition may be construed as a civil rights complaint under 5 42 U.S.C. § 1983. Wilwording v. Swenson, 404 U.S. 249, 251 (1971); see Nettles, 830 F.3d at 6 935-36. Although the district court may construe a habeas petition as a civil rights complaint, it is 7 not required to do so. Since the time when Wilwording was decided there have been significant 8 changes in the law. For example, the filing fee for a habeas petition is five dollars whereas the fee 9 for a civil rights case is now $400 (with $50 of that fee reduced if the prisoner is allowed to 10 proceed in forma pauperis). A prisoner is now required to pay the fee, even if granted in forma 11 pauperis status, by way of deductions from income to the prisoner’s trust account. See 28 U.S.C. 12 § 1915(b). A prisoner who might be willing to file a habeas petition for which he would not have 13 to pay a filing fee might feel otherwise about a civil rights complaint for which the $350 fee would 14 be deducted from income to his prisoner trust account. Also, a civil rights complaint that is 15 dismissed as malicious, frivolous, or for failure to state a claim counts as a “strike” under 28 16 U.S.C. § 1915(g), which is not true for habeas cases. Further, Mr. Mustafaa’s petition is not 17 amenable to conversion because it does not name the proper defendant. See Nettles, 830 F.3d at 18

19 2 Similar reasoning has been used by numerous district courts to dismiss habeas petitions challenging the implementation of the earlier-parole consideration provisions in Proposition 57. 20 There are no Ninth Circuit cases on point but numerous district courts have held that a claim based on Proposition 57 cannot be brought in a habeas action. See, e.g., Smith v. Pearman, 2019 WL 21 4918259, *3 (N.D. Cal. 2019) (habeas petition claiming entitlement to release under Proposition 57 dismissed because any Proposition 57 claim must be brought in civil rights action (citing 22 Nettles)); Ramos v. Spearman, 2019 WL 4571943, *2 n.1. (E.D. Cal. 2019) (“plaintiff’s claim is properly brought in a civil rights action because a finding in plaintiff’s favor, i.e., that he is 23 entitled to a parole hearing pursuant to Proposition 57, will not necessarily lead to his immediate or speedier release from custody.” (citing Nettles)); Grant v. Sherman, 2019 WL 4302202 (E.D. 24 Cal. 2019) (“Under Nettles, Petitioner’s only potential recourse [vis-à-vis Proposition 57] in federal court is to file a § 1983 complaint because his claim falls outside the core of habeas 25 corpus.”); Blanco v. Diaz, 2019 WL 3562215, *1 (S.D. Cal. 2019) (adopting report and recommendation that recommended, based on Nettles, the dismissal of habeas petition challenging 26 implementation of Proposition 57); cf. McCarary v. Kernan, 2017 WL 4539992, *2 (E. D. Cal. 2017) (citing Nettles and finding that claims that plaintiff’s failure to receive a parole hearing 27 under Proposition 57 violated due process “are properly brought in this civil rights action rather 1 936 (quoting Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005)) (in order to be converted, 2 petition must be “‘amenable to conversion on its face, meaning that it names the correct 3 defendants and seeks the correct relief.’”) In light of these several potential pitfalls for Mr. 4 || Mustafaa if the Court were to construe the petition as a civil rights complaint, the Court declines 5 to so construe it. 6 It is important to note that the Court has not determined that a claim would succeed if 7 || brought in a civil rights action under 42 U.S.C. § 1983. The court has referred to a § 1983 as a 8 || “potential recourse” because it would be premature in this habeas action to decide whether a claim 9 actually could be stated under 42 U.S.C. § 1983. The Court only decides today that a habeas 10 || petition is the wrong vehicle for a prisoner to pursue enforcement of any federal rights he has as a 11 result of the passage of Proposition 57. 12 B. No Certificate Of Appealability 13 When the court denies or dismisses a petition for writ of habeas corpus from a state 14 || prisoner, the court must determine whether to issue a certificate of appealability. A certificate of 3 15 appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case in which “jurists of a 16 || reason would find it debatable whether the petition states a valid claim of the denial of a 3 17 constitutional right and that jurists of reason would find it debatable whether the district court was 18 correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 19 IV. CONCLUSION 20 For the foregoing reasons, the petition for writ of habeas corpus is DISMISSED. The 21 dismissal is without prejudice to petitioner filing a new civil rights action asserting his claim that 22 || he should earn good conduct time credits at the 33.3% rate. 23 The Clerk shall close the file. 24 IT IS SO ORDERED. 25 Dated: December 12, 2019 26 <4

ED M. CHEN

28 United States District Judge