Opinion
No. C 01-0782 MMC (PR), No. C 01-2357 MMC (PR)
August 1, 2001
Petitioner, a California prisoner, filed a pro se petition for a corpus pursuant to 28 U.S.C. § 2254. The petition was given case number C 01-0782 MMC (PR) and assigned to the undersigned. After an initial review, on May 1, 2001, the Court dismissed this petition for a writ of habeas corpus and granted petitioner leave to file an amended petition within thirty days. Petitioner was cautioned that his failure to timely amend would result in dismissal. Petitioner subsequently received an extension of time to June 25, 2001 to file his amended petition. On June 19, 2001, petitioner submitted an amended petition to the Court, but instead of filing and docketing the amended petition in case number C 01-0782 MMC (PR), the Clerk of the Court filed the amended petition as a new action and assigned it a new case number, C 01-02357 MMC (PR). As a result, the Court was not made aware of the amended petition and, on July 10, 2001, dismissed case number C 01-0782 MMC (PR) for failure to timely file the amended petition. As petitioner did in fact amend the petition in a timely manner, the July 10, 2001 dismissal of case number 01-0782 MMC (PR) is vacated and the Court proceeds to review the amended petition.
BACKGROUND
Petitioner is an inmate at California Training Facility in Soledad. On May 18, 1999, he was written up by a prison teacher for a serious rule violation for failing to comply with instructions. After the hearing on this violation, petitioner was found guilty but the violation was reduced from a "serious CDC 115 rule violation" to a "CDC 128A counseling chrono." See Petition at p. 4. Petitioner claims that his right to due process was violated in the course of this discipline. Petitioner alleges that he has presented this claim unsuccessfully through all three levels of the California courts.
DISCUSSION
The petition was dismissed with leave to amend to allow petitioner to indicate whether or not he was deprived of any time credits in connection with his discipline, because the loss of time credits would make his claims cognizable in a habeas petition. See Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1989) (holding that if the discipline resulted in the deprivation of time credits, such discipline impacts the duration of confinement and may be challenged by way of habeas corpus); compare Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (finding that a challenge to the constitutionality of discipline received by an inmate that is in the nature of a claim attacking the conditions of his confinement should be brought as a civil rights action under 42 U.S.C. § 1983). In his amended petition, petitioner does not indicate that he has lost any time credits or that the duration of his sentence has been affected in any way by the counseling chrono he received. Rather, petitioner simply indicates that he fears that the chrono will adversely impact a future parole determination. As the discipline has not resulted in the loss of good time credits, it may not be attacked by way of a habeas petition. Moreover, the possibility that prison discipline may result in denial of parole eligibility at some later date is too attenuated for the discipline to amount to the denial of a liberty interest or to otherwise implicate petitioner's due process rights. See Burnsworth v. Gunderson, 179 F.3d 771, 773-74, n. 3 (9th Cir. 1999) (citing Sandin v. Conner, 515 U.S. 472, 484 (1995)). Accordingly, the petition, as amended, does not state a claim for the violation of petitioner's constitutional rights.
Petitioner does not argue, nor does the basis for such an argument appear in his papers, that there was "no evidence" to support the counseling chrono he received. Compare Burnsworth, 179 F.3d at 773-74 (finding that an escape conviction supported by no evidence on prisoner's record violated prisoner's due process rights).
CONCLUSION
In light of the foregoing, the Court hereby orders as follows:
1. The July 10, 2001 Order of Dismissal and Judgment in case number 01-0782 MMC (PR) are VACATED.
2. The Clerk shall reopen case number C 01-0782 MMC (PR). The clerk shall file the June 19, 2001 Amended Petition from case number C 01-2357 MMC (PR) in case number C 01-0782 MMC (PR).
3. As there is no need to maintain two court files and two case numbers for petitioner's habeas matter, the petition in case number C 01-2357 MMC (PR) is DISMISSED. The Clerk shall close the file and terminate the motion for leave to proceed in forma pauperis (docket #3) in that case.
4. The petition for a writ of habeas corpus, as amended, in case number C 01-0782 MMC (PR) is DISMISSED for failure to state a cognizable claim. All pending motions are terminated and the Clerk shall close the file.
5. The Clerk shall place a copy of this order in the file of both case numbers C 01-0782 MMC (PR) and C 01-2357 MMC (PR).
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
[XX] Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED
1. The July 10, 2001 Order of Dismissal and Judgment in case number 01-0782 MMC (pr) are VACATED.
2. The Clerk shall reopen case number C-01-0782 MMC (pr). The clerk shall file the June 19, 2001 Amended Petition from case number C-01-2357 MMC (pr) in case number C-01-0182 MMC (pr).
3. As there is no need to maintain two court files and two case numbers for petitioner's habeas matter, the petition in case number C-01-2357 MMC (pr) is DISMISSED. The Clerk shall close the file and terminate the motion for leave to proceed in forma pauperis (docket #3) in that case.
4. The petition for a writ of habeas corpus, as amended, in case number C-01-0782 MMC (pr) is DISMISSED for failure to state a cognizable claim. All pending motions are terminated and the Clerk shall close the file.