United States District Court, D. Nevada
C. JONES United States District Judge.
the court are the second amended petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 8),
respondents' answer (ECF No. 33), and petitioner's
reply (ECF No. 38). Petitioner's claims are not
addressable in federal habeas corpus, and the court denies
the petition. The court also declines to re-characterize this
action as a civil rights action pursuant to 42 U.S.C. §
action arises out of prison disciplinary proceedings. At
least one of the proceedings involved a prior action filed in
this court, Burriola v. Nevada, Case No.
3:10-cv-00168-LRH-WGC. In that action, petitioner filed an
affidavit purportedly executed by a correctional officer
stating that petitioner was her authorized representative.
The affidavit was fraudulent, and the court sanctioned
petitioner by dismissing the action with prejudice.
Petitioner appealed, and the court of appeals affirmed.
Petitioner then was sanctioned through the prison
disciplinary process. Among other punishments, he forfeited
three hundred sixty credits toward an earlier discharge from
his sentence. In the remaining claims of the second amended
petition (ECF No. 8), petitioner alleges that a deputy
attorney general instructed corrections staff to fabricate
the charges, that the hearing officer did not allow
petitioner to review the evidence against him, and that the
court should order the Nevada Department of Corrections to
expunge the charges and to restore any forfeited credits
toward an earlier discharge from his sentence.
recent decision in Nettles v. Grounds, 830 F.3d 922
(9th Cir. 2016) (en banc), holds that this court cannot grant
petitioner any relief. Nettles was in prison on a determinate
term of twelve years and a life term with the possibility of
parole. He sought expungement of a prison disciplinary
violation and restoration of credits toward an earlier
release. That, Nettles argued, would lead to an earlier
parole hearing. The court of appeals held, “if a state
prisoner's claim does not lie at ‘the core of
habeas corpus, ' . . . it may not be brought in habeas
corpus but must be brought, ‘if at all, ' under [42
U.S.C.] § 1983.” Id. at 931 (quoting
Preiser v. Rodriguez, 411 U.S. 475, 487 (1973), and
Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011)).
The “core of habeas corpus” is relief that
terminates custody, accelerates the future date of release
from custody, or reduces the level of custody, such as from
incarceration to parole. Nettles, 830 F.3d at 930
(quoting Wilkinson v. Dotson, 544 U.S. 74, 86 (2005)
(Scalia, J., concurring)). In Nettles' case, success
would not have necessarily led to immediate or earlier
release from confinement, because even if the disciplinary
violation was expunged, the parole board still could deny
situation is indistinguishable from Nettles.
Petitioner has been convicted of second degree murder with
the use of a deadly weapon, for which he has received two
sentences of life imprisonment with minimum eligibility for
parole after ten years, to be served consecutively. See
Burriola v. Palmer, Case No.
3:06-cv-00059-PMP-RAM. Even if petitioner succeeded with his
claims, that success would not necessarily lead to immediate
or earlier release from confinement. He still would need to
be considered by the parole board, which could still deny
parole. The relief that the court could grant would be
outside the core of habeas corpus, and petitioner would need
to seek that relief through a civil rights action pursuant to
42 U.S.C. § 1983.
notes that a court may re-characterize a habeas corpus
petition into a civil rights action. 830 F.3d at 935-36. The
court declines to do that for three reasons. First, the
respondent in this action is different from who the
defendants would be in a civil rights action. Second,
petitioner would be required to pay a much larger filing fee
through monthly installments. 28 U.S.C. § 1915(b).
Third, petitioner has had at least two prior civil rights
actions dismissed for failing to state a claim, for being
frivolous, or for malicious activity. Burriola v. State
of Nevada, Case No. 3:10-cv-00168-LRH-WGC; Burriola
v. Mosley, Case No. 3:10-cv-00438-LRH-RAM. If the court
re-characterized this action, and if then the action is
dismissed for one of those reasons, petitioner no longer
would be able to proceed in forma pauperis in any
civil actions commenced while being a prisoner. 28 U.S.C.
§ 1915(g). Petitioner should decide on his own whether
it is worthwhile to pursue his claims in a civil rights
jurists would not find the court's conclusions to be
debatable or wrong, and the court will not issue a
certificate of appealability.
THEREFORE ORDERED that the second amended petition for a writ
of habeas corpus (ECF No. 8) is DENIED. The clerk of the
court shall enter judgment accordingly and close this action.
FURTHER ORDERED that a certificate of appealability is
Petitioner has been convicted of other
crimes, but they are not important for the purposes of ...