United States District Court, D. Nevada
KENNETH D. BARRETT, Petitioner,
RENEE BAKER, et al., Respondents.
C. JONES UNITED STATES DISTRICT JUDGE.
Kenneth D. Barrett, a Nevada prisoner proceeding pro
se, has filed a Petition for Writ of Habeas Corpus (ECF
No. 1-1) pursuant to 28 U.S.C. § 2254. This matter is
before the Court for preliminary review pursuant to the Rules
Governing Section 2254 Cases in the United States District
Courts. For the reasons discussed below, the
petition is dismissed following preliminary review.
Habeas Rule 4, the assigned judge must examine a habeas
petition and order a response unless it “plainly
appears” that the petitioner is not entitled to relief.
Habeas Rule 4; see also Valdez v. Montgomery, 918
F.3d 687, 693 (9th Cir. 2019). Federal law provides two main
avenues to relief on complaints related to incarceration: (1)
a petition for habeas corpus, 28 U.S.C. §§ 2241,
2254, 2255; and (2) a complaint under the Civil Rights Act of
1871, 42 U.S.C. § 1983. See Muhammad v. Close,
540 U.S. 749, 750 (2004). A state prisoner's habeas claim
is cognizable under § 2254 only if it falls within the
“core” of habeas. Nettles v. Grounds,
830 F.3d 922, 930 (9th Cir. 2016) (en banc). If success on a
habeas claim would not necessarily lead to a petitioner's
immediate or earlier release from custody, the claim does not
fall within “the core of habeas corpus” and must
be brought, “if at all, ” under 42 U.S.C. §
1983. Id. at 931.
Nettles, a prisoner serving a life sentence with the
possibility of parole was found guilty of a disciplinary
infraction, which caused 30 days of good time credits to be
revoked. 830 F.3d at 925-26. Nettles filed a federal habeas
petition seeking restoration of the good time credits and
expungement of the rule violation report that led to the loss
of good time credits. Id. at 927. The Ninth Circuit
held that Nettles' claim was not cognizable in habeas.
Id. at 934-35. Habeas relief is not available for
“probabilistic claims, ” i.e., where
success on the claims “could potentially
affect the duration of confinement” or is
“likely to accelerate the prisoner's
eligibility for parole.” Id. at 933-34
(quotation omitted). In short, a prisoner cannot bring a
federal habeas petition “where ‘a successful
challenge to a prison condition will not necessarily
shorten the prisoner's sentence'.” Id.
at 933 (quoting Ramirez v. Galaza, 334 F.3d 850, 859
(9th Cir. 2003)). Because the parole board could have denied
parole, even if Nettles succeeded in expunging the rules
violation report, the Ninth Circuit held that a meritorious
habeas claim would not necessarily lead to his immediate or
earlier release. Id. at 935. Thus, his claim was not
within “the core of habeas corpus” and could not
be brought under § 2254 but must be pursued under §
1983, if at all. Id. (quoting Skinner v.
Switzer. 562 U.S. 521, 535 n.13 (2011)).
Petitioner's petition fails to state a cognizable habeas
claim. In January 1986, Petitioner was convicted of multiple
counts of burglary, robbery with use of a deadly weapon,
grand larceny auto, and attempted murder. In his petition,
Petitioner asserts that prison officials have miscalculated
his statutory credits for parole eligibility under Nev. Rev.
Stat. §§ 209.446 and 213.120(1). He asks this Court
to order the Nevada Department of Corrections to produce his
credit history to show that his parole eligibility dates for
each of his current and previous sentences were correctly
Petitioner were to succeed on this claim, it would only mean
an earlier parole hearing. However, an earlier parole hearing
will not necessarily lead to the Petitioner's immediate
or speedier release because the parole board has the
authority and discretion to grant or deny parole. Wydeven
v. Warden, Lovelock Corr. Ctr., 238 P.3d 867 (Nev. 2008)
(citing Nev. Rev. Stat. § 213.1099(2)) (“The
decision of whether or not to grant parole lies within the
discretion of the parole board and the creation of standards
does not restrict the Parole Board's discretion to grant
or deny parole.”). As success on Petitioner's
claims would not necessarily lead to his immediate or
speedier release, they do not fall in the “core”
of habeas and must be brought, if at all, under 42 U.S.C.
§ 1983. See Rouser v. Sullivan, 2019 WL
1934483, at *2 (E.D. Cal. May 1, 2019); Stanhope v.
Ryan, 2017 WL 1163303, at *8 (D. Ariz. Mar. 29, 2017);
Gordon v. Premo, 757 Fed. App'x 627, 628 (9th
Cir. 2019) (unpublished disposition).
the Court declines to recharacterize Petitioner's
petition as a § 1983 complaint. When a habeas petition
is amenable to conversion on its face, federal courts may
construe the petition to plead causes of action under §
1983. Nettles, 830 F.3d. at 935-36; see also
Wilwording v. Swenson, 404 U.S. 249, 251 (1971).
However, habeas actions and § 1983 prisoner civil rights
cases “differ in a variety of respects-such as the
proper defendant, filing fees, the means of collecting them,
and restrictions on future filings-that may make
recharacterization impossible or, if possible,
disadvantageous to the prisoner compared to a dismissal
without prejudice of his petition for habeas corpus.”
Nettles, 830 F.3d. at 935-36 (quotation omitted);
see also United States v. Seesing, 234 F.3d 456, 464
(9th Cir. 2000) (holding that a court should not
recharacterize a prisoner's pro se filing as a federal
habeas petition when doing so may be to the prisoner's
disadvantage). In this case, the petition is not amenable to
conversion on its face because it is not clear that
Petitioner has named the proper defendant or whether
recharacterization would disadvantage Petitioner. The Court
therefore dismisses the petition without prejudice and
instructs the Clerk of Court to send Petitioner a form
complaint for § 1983 civil rights actions.
above stated reasons, IT IS THEREFORE
Petitioner Kenneth D. Barrett's Petition for Writ of
Habeas Corpus (ECF No. 1-1) is DISMISSED WITHOUT PREJUDICE.
Petitioner is DENIED a certificate of appealability, as
jurists of reason would not find the dismissal of this action
on the grounds set forth above to be debatable or wrong.
Petitioner's Application to Proceed In Forma
Pauperis (ECF No. 1), Motion to Extend Copywork Limit
(ECF No. 1-4), and Motion for Counsel (ECF No. 1-5) are
DENIED as moot.
Clerk of Court is directed to:
a. FILE the Petition (ECF No. 1-1), Motion to Extend Copywork
Limit (ECF No. 1-4), and Motion for Counsel (ECF No. ...