Dаmous D. NETTLES, Petitioner-Appellant, v. Randy GROUNDS, Warden, Respondent-Appellee.
No. 12-16935
United States Court of Appeals, Ninth Circuit.
July 26, 2016
830 F.3d 922
Argued and Submitted En Banc March 22, 2016 San Francisco, California
Finally, this case presents a novel and important issue of law. We have not yet explained in a published opinion how a court must proceed when a party to a contract containing an arbitration agreement challenges the contract on the ground that it is exempt under § 1. A failure to address this issue and correct the district court‘s erroneous approach may encourage plaintiffs in many different contexts to sidestep an agreement to arbitrate by strategically claiming that their contract is exempt and that it is necessary to litigate the key merits issue outside of arbitration.
Because the Bauman factors weigh in favor of granting Swift‘s petition and mandamus is clearly warranted in this case, I dissent.
Phillip J. Lindsay (argued), Supervising Deputy Attorney General; Jennifer A. Neill, Senior Assistant Attorney General; Kamala D. Harris, Attorney General of California; Office of the Attorney General, Sacramento, California; for Respondent-Appellee.
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.
Partial Concurrence by Judge HURWITZ;
Dissent by Judge BERZON
OPINION
IKUTA, Circuit Judge:
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
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 disfigured.
Nettles was convicted for attempted murder and dissuading and conspiring to dissuade a witness from attending or giving testimony at trial. He was sentenced to prison for a determinate term of twelve years and a life term with the possibility of parole.
Under California law, prisoners with life terms like Nettles may not be released before their minimum eligible parole date (MEPD).
An initial parole consideration hearing for Nettles was held in 2004 after the presiding parole commissioner determined that Nettles’ MEPD was October 19, 2005. Before that hearing, prison staff had issued some thirty-nine rules violations reports to Nettles. These reports are issued for misconduct that “is believed to bе a violation of law or is not minor in nature.”
After 2004, Nettles received seven additional rules violations reports. On February 26, 2008, staff issued Nettles a rules
On July 30, 2009, the Board convened a second parole suitability hearing for Nettles. At the hearing, the presiding commissioner first described the facts of Nettles‘s crime of conviction, characterizing it as “one of the most atrocious and cruel acts I‘ve read” and stating that Nettles‘s motive was “ridiculously heinous.” The commissioner then reviewed Nettles‘s prior criminal history. Nettles had a long string of convictions beginning at age seventeen and had been in and out of prison for offenses including possession of drugs, assault with a deadly weapon, battery on a peace officer, and robbery. Nettles was on parole for the robbery conviction when he committed the attempted murder for which he was sentenced to life imprisonment. The commissioner stated that Nettles‘s lengthy criminal history illustrated his inability to learn from prior incarcerations.
The commissioner next explained the hearing panel‘s concerns about Nettles‘s mental state and attitude about the crime. In the hearing panel‘s view, Nettles‘s letter to the victim did not express true remorse. Further, Nettles had not taken responsibility for his conduct and lacked insight that would enable him to change his behavior. The commissioner discussed a May 2007 psychological report, which gave Nettles “a rating of overall moderate likelihood to become involved in a violent offense if released.” Finally, the commissioner stated that Nettles was argumentative and stubborn, “challenge[d] authority at every given opportunity,” and refused to restrain himself, as evidenced by his numerous rules violations. The commissioner noted the forty-six rules violation reports that had been issued to Nettles while he was in prison. Nettles “continued to display negative behavior while incarcerated,” and as a result was placed in segregated housing. Moreover, Nettles had not taken any significant steps to gain skills to function outside of prison. Nevertheless, a deputy commissioner noted some positive steps Nettles had taken, including a slight reduction in the number of rules violations reports issued to Nettles in recent years.
The panel of the Board of Parole Hearings concluded that Nettles was unsuitable for parole because he “still pose[d] an unreasonable risk of danger if released from prison.” This finding was “based on weighing the considerations provided in the California Code of Regulations.” As authorized by the regulations, the commissioner made recommendations regarding “what steps may be undertaken to enhance the possibility of a grant of parole at a future hearing,”
On January 23, 2009, Nettles filed a habeas petition in the state trial court claiming, in relevant part, that the 2008 rules violation report was illegal and that the disciplinary proceedings held in connection with the 2008 rules violation report violated his due process rights. The court denied the petition, concluding that Nettles failed to exhaust his administrative remedies concerning these claims.3 The California Court of Appeal and California Supreme Court then summarily denied the petition.
The district court dismissed Nettles‘s petition, holding that he could not show that expungement of the 2008 rules violation report was likely to accelerate his eligibility for parole. Nettles timely appealed the district court‘s decision.
We review de novo a district court‘s decision to deny a petition for habeas corpus. Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010). We also review de novo a district court‘s determination that it does not have jurisdiction over a habeas corpus petition. Id.
II
The Supreme Court has recognized that “[f]ederal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus,
A
The Supreme Court first addressed the scope of § 1983 vis-a-vis the scope of habeas in the leading case of Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). In Preiser, state prisoners who had lost good-time credits as a result of disciplinary proceedings brought an action under § 1983 for restoration of the credits on the ground that the proceedings violated their due process rights. Id. at 476-77. The prisoners would have been entitled to immediate release from prison if their good-time credits had been restored, and the Court therefore concluded that habeas was the exclusive remedy for these claims. Id. at 500. Although “the literal terms of § 1983 might seem to cover” claims that a prisoner‘s confinement violated the Constitution, id. at 489, the language of the habeas statute is more specific, and the writ‘s history makes clear that
In a series of cases after Preiser, the Supreme Court distinguished between different sorts of state prisoner claims, indicating which claims were in the “core of habeas corpus,” Preiser, 411 U.S. at 489, and thus could be brought only in a habeas petition, and which claims fell outside that core and could be brought in a § 1983 action. In Wolff v. McDonnell, 418 U.S. 539, 542-44, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Court considered a § 1983 class action brought by state prisoners challenging prison rules, practices, and procedures and seeking restoration of good-time credits, injunctive relief, and damages. The Court held that the plaintiffs’ claims for restoration of good-time credits were in the core of habeas and therefore outside the scope of § 1983. Id. at 554. By contrast, claims challenging a prison‘s “procedures for depriving prisoners of good-time credits” and seeking damages or a prospective injunction—claims which would not necessarily lead to an earlier release—could be brought in a § 1983 action. Id. (emphasis added).
In Heck v. Humphrey, 512 U.S. 477, 478-79, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), a state prisoner brought a § 1983 action for compensatory and punitive money damages against state officials who had allegedly engaged in unconstitutional procedures in their investigation and handling of evidence. Analogizing the prisoner‘s § 1983 action to the common-law cause of action for malicious prosecution, id. at 484, the Court held that a plaintiff could not bring a § 1983 action “that necessarily require[d] the plaintiff to prove the unlawfulness of his conviction or confinement,” id. at 486. To bring such an action, the plaintiff would first have to prove that the conviction or sentence was eliminated, including “by a federal court‘s issuance of a writ of habeas corpus.” Id. at 486-87. By contrast, an action that, “even if successful, will not demonstrate the invalidity of any outstanding criminal judgment” falls within § 1983‘s scope. Id. at 487. This favorable termination rule polices “the intersection of the two most fertile sources of federal-court prisoner litigation—[§ 1983], and the federal habeas corpus statute,” id. at 480, by ensuring that a court cannot address a § 1983 claim if doing so would require it to first resolve a claim that falls within the core of habeas corpus.
In Edwards v. Balisok, 520 U.S. 641, 644, 648, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), the Court held that a state prisoner‘s challenge under § 1983 that “would necessarily imply the invalidity of the disciplinary hearing and the resulting [deprivation of good-time credits]” fell within habeas‘s exclusive domain and was barred by the rule in Heck, while a claim seeking an injunction barring future unconstitutional procedures was within the scope of § 1983 action. The court later clarified, in Muhammad v. Close, that such challenges to disciplinary proceedings are barred by
In this series of cases, the Court made clear that habeas is the exclusive vehicle for claims brought by state prisoners that fall within the core of habeas and that such claims may not be brought under § 1983, but the Court did not have occasion to address the question whether § 1983 was the exclusive vehicle for claims outside the core of habeas. In subsequent cases, the Court began suggesting that § 1983 was the sole remedy for such claims. See, e.g., Muhammad, 540 U.S. at 754-55. In Muhammad, the Supreme Court limited the applicability of Heck by holding that a state prisoner was entitled to challenge administrative determinations that did not “raise any implication about the validity of the underlying conviction” or “necessarily” affect “the duration of time to be served” under § 1983 because such a challenge “raised no claim on which habeas relief could have been granted on any recognized theory.” Id. In other words, Muhammad suggested, without holding, that the scope of habeas is limited to claims in the core of habeas and does not extend to a claim that does not necessarily challenge the validity or duration of the underlying conviction or sentence.
This suggestion that § 1983 and habeas are mutually exclusive vehicles for prisoner сlaims appeared again in Wilkinson v. Dotson, 544 U.S. 74, 82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005). In Dotson, state prisoners brought a § 1983 action to challenge the state‘s practice of applying new parole procedures retroactively. Id. at 76-77. Like earlier cases that had distinguished between state prisoner claims that were in the “core of habeas,” and thus could be brought only in a habeas petition, and those which could be brought in a § 1983 action, Dotson concluded that habeas was the exclusive vehicle for state prisoner claims where “success in that action would necessarily demonstrate the invalidity of confinement or its duration.” Id. at 82. But a § 1983 action would lie where success on a claim means only that a prisoner will be eligible for parole review, “which at most will speed consideration of a new parole application.” Id. In rejecting the dissent‘s argument that habeas was available for challenges to parole procedures and therefore provided the exclusive vehicle for them, the Court suggested that habeas was available only for claims that seek “invalidation (in whole or in part) of the judgment authorizing the prisoner‘s confinement.” Id. at 83. The concurring opinion in Dotson picked up this suggestion that habeas was available only for claims in the core of habeas, stating that it “would utterly sever the writ from its common-law roots” to hold that “the habeas statute authorizes
Dotson‘s suggestion that a § 1983 action is the exclusive vehicle for state prisoner claims that are not within the core of habeas was echoed more strongly in the Supreme Court‘s most recent pronouncement on this issue, Skinner v. Switzer, 562 U.S. 521, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011). There, a state prisoner moved in state court for DNA testing of certain crime scene evidence. Id. at 527-29. After the state court denied the motions, the prisoner brought a federal action for injunctive relief under § 1983, alleging a due process violation. Id. at 529. The district court dismissed the action on the ground that “postconviction requests for DNA evidence are cognizable only in habeas corpus, not under § 1983.” Id. The Court disagreed and indicated that the correct analysis was the exact opposite: because an action for DNA testing was not within the core of habeas, it could be brought only in § 1983. Id. at 533-34, 535 n. 13. In reaching this conclusion, the Court relied first on the Dotson concurrence and its indication that habeas was available only for claims in the core of habeas corpus. “It suffices to point out that [the state] has found no case, nor has the dissent, in which the Court has recognized habeas as the sole remedy, or even an available one, where the relief sought would ‘neither terminat[e] custody, accelerat[e] the future date of release from custody, nor reduc[e] the level of custody.‘” Id. at 534 (quoting Dotson, 544 U.S. at 86 (Scalia, J., concurring)). Second, rejecting the state‘s argument that a claim for DNA testing lay “at the core” of a criminal proceeding and had to be brought in habeas, the Court instead characterized its prior decision in Dotson as declaring “in no uncertain terms, that when a prisoner‘s claim would not necessarily spell speedier release, that claim does not lie at ‘the core of habeas corpus,’ and may be brought, if at all, under § 1983.” Id. at 535 n. 13 (internal quotation marks omitted). Skinner also alluded to the existence of a firm line between habeas and § 1983, noting that the state‘s argument “cannot be reconciled with the line our precedent currently draws” between habeas and § 1983, and suggested that the core of habeas defines the contours of that line. See id.5
We read these statements as strongly suggesting that habeas is available only for state prisoner claims that lie at the core of habeas (and is the exclusive remedy for such claims), while § 1983 is the exclusive remedy for state prisoner claims that do not lie at the core of habeas. Although the Supreme Court has not provided an express ruling on the scope of habeas, “we afford ‘considered dicta from the Supreme Court ... a weight that is greater than ordinary judicial dicta as
The dissent heavily relies on cases where prisoners in federal custody brought habeas petitions under
Because the case before us involves a state prisoner‘s action under
Accordingly, we hold that if a state prisoner‘s claim does not lie at “the core of habeas corpus,” Preiser, 411 U.S. at 487, it may not be brought in habeas corpus but must be brought, “if at all,” under § 1983, Skinner, 562 U.S. at 535 n. 13. We therefore overrule Docken v. Chase, 393 F.3d 1024 (9th Cir. 2004), and Bostic v. Carlson, 884 F.2d 1267 (9th Cir. 1989), to the extent they are inconsistent with this rule.
B
Other factors support our adoption of the Supreme Court‘s strong suggestion that a § 1983 action is the exclusive vehicle for claims that are not within the core of habeas.
First, such a conclusion is consistent with the analytical framework in Preiser. In holding that § 1983 did not extend to claims within the core of habeas, Preiser put great weight on congressional intent in determining that Congress had amended the habeas statutes to require the “exhaustion of adequate state remedies as a condition precedent to the invocation of federal judiciаl relief under those laws” as a way to further Congress‘s policy goal of avoid-
Just as Congress‘s amendments to the habeas statute indicated an intent to make habeas the exclusive remedy for claims at the core of habeas, see id., Congress‘s enactment of the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321 (1996), indicated an intent to make § 1983 the exclusive remedy for “all inmate suits about prison life,” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). The PLRA was intended “to promote administrative redress, filter out groundless claims, and foster better prepared litigation of claims aired in court.” Id. at 528. Before the PLRA, plaintiffs pursuing actions under § 1983, including “[p]risoner suits alleging constitutional deprivations while incarcerated” did not have to “exhaust administrative remedies before filing suit in court.” Id. at 523 (citing Wilwording v. Swenson, 404 U.S. 249, 251, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971) (per curiam)). But Congress “enacted
Congress‘s intent that state prisoners satisfy PLRA requirements for all § 1983 suits about prison life (other than claims at the core of habeas) suggests that Congress wanted § 1983 to be the exclusive vehicle for such claims. As in Preiser, “[i]t would wholly frustrate explicit congressional intent” to hold that prisoners could evade the requirements of the PLRA “by the simple expedient of putting a different label on their pleadings.” 411 U.S. at 489-90. Moreover, because Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub L. No. 104-132, 110 Stat. 1214, at the same time as it enacted the PLRA, we infer that Congress did not intend to make § 1983 and habeas regimes interchangeable or overlapping. AEDPA added procedural requirements for prisoners bringing habeas corpus petitions that are separate and distinct from those imposed on § 1983 claims by the PLRA, see Woodford v. Ngo, 548 U.S. 81, 97, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006), indicating an intent to make these regimes independent and mutually exclusive.8
In effect, these Congressional enactments channel prisoner litigation through the set of procedures that is best suited to address the type of prisoner grievance at issue. Many suits about prison conditions can be addressed effectively and speedily by correction officials through internal grievance procedures, which “might improve prison administration and satisfy the inmate, thereby obviating the need for litigation.” See, e.g., Porter, 534 U.S. at 525. And if such claims are not resolved by corrective action at the prison, “adjudication could be facilitated by an administrative record that clarifies the contours of the controversy.” Id. Thus, a § 1983 action subject to the PLRA exhaustion requirements, which mandate that a prisoner first exhaust the prison‘s administrative processes to the extent they are available, is the best means of addressing such claims. On the other hand, habeas corpus is the exclusive remedy to attack the legality of the conviction or sentence, and for these sorts of claims the exhaustion requirement gives a state court “an opportunity to correct its own constitutional errors” before a federal court orders release, thus respecting traditional notions of federal-state comity. Preiser, 411 U.S. at 484, 490-91. Our holding that a § 1983 action is the exclusive vehicle for suits about prison life furthers Congress‘s efforts to direct prisoner litigation to the appropriate procedural channel.
C
We are also persuaded to adopt the rule that habeas is available only for actions in the “core of habeas” because it has the benefits of clarity and administrability. Our pre-Skinner opinions addressing this issue struggled to draw a line between habeas and § 1983 actions, and we have not provided clear direction to state prisoners bringing such challenges or district courts addressing them. We have long held that prisoners may not challenge mere conditions of confinement in habeas corpus, see Crawford v. Bell, 599 F.2d 890, 891-92 (9th Cir.1979), but we have reached inconsistent results in our efforts to delineate more precisely the claims which may not be brоught in habeas. Thus, while we stated in Ramirez v. Galaza that a prisoner could not bring a habeas petition to seek expungement of a disciplinary charge where “a successful challenge to a prison condition will not necessarily shorten the prisoner‘s sentence,” 334 F.3d 850, 859 (9th Cir.2003) (emphasis added), we subsequently stated, inconsistently, that prisoners could bring claims in a habeas petition “challenging aspects of their parole review” so long as success on the claims “could potentially affect the duration of
By contrast, Skinner‘s core-of-habeas standard is a well-tested one that does not require the sort of probabilistic analysis found in some of our prior precedent, such as whether success on a claim would be “likely” to lead to an earlier release, Bostic, 884 F.2d at 1269, or “could potentially affect the duration of their confinement,” Docken, 393 F.3d at 1031 (emphasis added). The standard suggested in Skinner does not require us to guess at the discretionary decisions of state officials in order to determine whether an action sounds in habeas or § 1983, and which prerequisites must be met. And it follows Skinner‘s suggestion “that habeas might not even be available for ‘probabilistic’ claims.” Davis v. U.S. Sentencing Comm‘n, 716 F.3d 660, 665 (D.C.Cir.2013).10 Thus the rule we adopt today, that if a state prisoner‘s claim does not lie at “the core of habeas corpus,” Preiser, 411 U.S. at 487, it may not be brought in habeas corpus but must be brought, “if at all,” under § 1983, Skinner, 562 U.S. at 535 n. 13, will give needed clarity to state prisoners. If the prisoner‘s claim challenges the fact or duration of the conviction or sentence, compliance with AEDPA is mandated, while if the claim challenges any other aspect of prison life, the prisoner must comply with the PLRA.11
III
We now apply this standard to Nettles‘s federal habeas petition, which challenged the disciplinary proceedings held in connection with the 2008 rules violation report. Nettles argues that his claims affect the duration of his sentence because if he succeeded in expunging his 2008 rules violation report, the Board would more likely set his next parole hearing at an earlier date,
We disagree. Success on the merits of Nettles‘s claim would not necessarily lead to immediate or speedier release because the expungement of the challenged disciplinary violation would not necessarily lead
Here, the panel of the Board of Parole Hearings considered a range of relevant factors bearing on Nettles‘s future dangerousness, including his inability to learn from prior imprisonments, his lack of insight and remorse regarding his crimes, and his argumentative and stubborn attitude. The presiding commissioner discussed at great length the factors that led him to conclude that Nettles was not suitable for parole, including the heinous nature of Nettles‘s crime of conviction, a psychological report on Nettles, and Nettles‘s attitude. While the presiding commissioner did note the multiple rules violations reports issued to Nettles, his remarks gave no indication that Nettles‘s 2008 violation report was an important, let alone determinative, factor in his decision.
Under California law and the circumstances of Nettles‘s case, the panel could deny parole to Nettles even if he succeeded in expunging the 2008 rules violation report. Furthermore, since the decision to grant an earlier release date on the basis of new information is placed in the discretion of the parole bоard,
Because success on Nettles‘s claims would not necessarily lead to his immediate or earlier release from confinement, Nettles‘s claim does not fall within “the core of habeas corpus,” Skinner, 562 U.S. at 535 n. 13, and he must instead bring his claim under § 1983.
IV
Although Nettles‘s claims are not cognizable in habeas, we must still consider whether the district court may construe Nettles‘s habeas petition as pleading a cause of action under § 1983.
The Supreme Court has long held that habeas petitions “may ... be read to plead causes of action under [§ 1983]” and that prisoners bringing the wrong action are “entitled to have their actions treated as claims for relief under the Civil Rights Acts.” Wilwording, 404 U.S. at 251. The Seventh and Eighth Circuits have also concluded that under certain circumstances, a court may convert a habeas petition into a civil rights claim under § 1983 or Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See Spencer v. Haynes, 774 F.3d 467, 471 (8th Cir.2014) (stating that habeas petitions can be recharacterized as § 1983 or Bivens actions); Robinson v. Sherrod, 631 F.3d 839, 841 (7th Cir.2011) (same); Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir.2005) (stating that such recharacterization is not “utterly out of the question“).
The rule in Wilwording, however, was developed long before the enactment of the PLRA, during a time when a court could allow a pro se litigant to replead a habeas claim as a § 1983 claim or merely ignore the error in pleading. Glaus, 408 F.3d at 388. After the PLRA became effective, “a
In the reverse situation, where a district court recharacterized a pro se litigant‘s civil rights claim as a habeas petition, the Supreme Court warned courts to avoid a recharacterization that disadvantaged a petitioner by, for example, subjecting the petitioner to restrictions on second or successive habeas petitions. Castro v. United States, 540 U.S. 375, 382-83, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003). Accordingly, Castro held that before recharacterizing a civil rights claim, a district court must “notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on ‘second or successive’ motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has.” Id. at 383; 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 would be to the prisoner‘s disadvantage).
We agree with the Seventh Circuit that “the same logic should apply to the potential conversion of a habeas corpus petition into a civil rights claim.” Glaus, 408 F.3d at 388. “If the complaint is amenable to conversion on its face, meaning that it names the correct defendants and seeks the correct relief, the court may recharacterize the petition so long as it warns the pro se litigant of the consequences of the conversion and provides an opportunity for the litigant to withdraw or amend his or her complaint.” Id.; see also Robinson, 631 F.3d at 841 (warning district courts “not to recharacterize a prisoner‘s petition for habeas corpus as a prisoner civil rights complaint without his informed consent“); Spencer, 774 F.3d at 471 (“[T]he better practice will be for district courts to first obtain the consent of the pro se individual before converting their claims from a habeas proceeding to a Bivens action.“).
Joining our sister circuits, we hold that a district court may construe a petition for habeas corpus to plead a cause of action under § 1983 after notifying and obtaining informed consent from the prisoner. Accordingly, we vacate the district court‘s dismissal of this matter and remand it to the district court for proceedings consistent with this opinion.
VACATED AND REMANDED.
HURWITZ, Circuit Judge, 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
It is one thing to say that permissible habeas relief, as our cases interpret the statute, includes ordering a quantum change in the level of custody, such as release from incarceration to parole. It is quite another to say that the habeas statute authorizes federal courts to order relief that neither terminates custody, accelerates the future date of release from custody, nor reduces the level of custody.
Id. at 86 (citation and quotation marks omitted). Expanding habeas jurisdiction to cover such claims, Justice Scalia warned, “would utterly sever the writ from its common-law roots.” Id.
Until 2011, Justice Scalia‘s concurrence (joined by Justice Thomas) was simply the view of two Justices on an undecided issue. But, then came Skinner v. Switzer, 562 U.S. 521, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011). That case, like Preiser and Dotson, involved the scope of § 1983 jurisdiction; the Court concluded that a prisoner claiming a denial of due process because of the state‘s refusal to give him access to DNA samples could seek relief under the civil rights statute. Id. at 534. But, in explaining that decision, the six-Justice Skinner majority expressly rejected the respondent District Attorney‘s argument (adopted by the three dissenters) that “Skinner‘s request for DNA testing must be pursued, if at all, in an application for habeas corpus, not in a § 1983 action.” Id. Most importantly for today‘s purposes, the Court did so by citing Justice Scalia‘s Dotson concurrence with approval:
It suffices to point out that Switzer has found no case, nor has the dissent, in which the Court has recognized habeas as the sole remedy, or even an available one, where the relief sought would “neither terminat[e] custody, accelerat[e] the future date of release from custody, nor reduc[e] the level of custody.” Dotson, 544 U.S. at 86 (Scalia, J., concurring).
Id. (emphasis added) (brackets in original). The Court later reinforced the point, again citing Justice Scalia‘s concurrence with approval:
Dotson declared, however, in no uncertain terms, that when a prisoner‘s claim would not “necessarily spell speedier release,” that claim does not lie at “the core of habeas corpus,” and may be brought, if at all, under § 1983. 544 U.S. at 82 (majority opinion) (internal quotation marks omitted); see id., at 85-86 (Scalia, J., concurring).
I find Skinner an unambiguous indication of the Supreme Court‘s view on the issue before us. The statements quoted above are, to be sure, technically dicta—the question before the Court was whether Skinner could bring a § 1983 claim, not a habeas petition. But, in rejecting the District Attorney‘s contention that Skinner had a potential remedy in habeas alone, the Court expressly adopted the reasoning
Supreme Court dicta as carefully considered as that in Skinner is special; it should be followed absent compelling reasons to the contrary. This case presents none. Were we engaged in an “Erie guess” today about how a state supreme court might decide an issue, we would not pause a moment in light of the kind of statements in Skinner. We should give the Supreme Court similar deference in these circumstances; we best perform our duties as an Article III “inferior” court by not treating the carefully considered Skinner statements, consciously used to reject an argument that habeas was an available remedy, as idle musings.
Were we approaching this matter on a clean slate, traditional principles of statutory construction might lead me to a different result. But we are not. Parsing the language or history of § 2254 is unnecessary to determine where the Supreme Court stands on the issue before us. I therefore join Parts I, II(A), III, and IV of Judge Ikuta‘s opinion.
BERZON, Circuit Judge, 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 confine- ment,” 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 assertions....” Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). In other words, the rights Nettles has going into a hearing may be invoked “whatever the ultimate outcome of [the] hearing” may be. Id. (quoting Fuentes v. Shevin, 407 U.S. 67, 87, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972)) (internal quotation marks omitted).
This principle exists both to protect individual rights and to maintain the public good stemming from the scrupulous enforcement of impartial procedures. The individual right to a public trial, for instance, has long been “recognized as a safeguard against any attempt to employ our courts as instruments of persecution.” In re Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 92 L.Ed. 682 (1948). The right to an оpportunity to be heard in administrative hearings helps hold government officials accountable for their assertions. See Joint Anti- Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 170–71, 71 S.Ct. 624, 95 L.Ed. 817 (1951). These systemic benefits would not accrue if the Constitution‘s procedural safeguards were allowed to lapse where we thought it likely they would not affect the outcome of a hearing or trial. See Carey, 435 U.S. at 266.
The standard announced by today‘s majority circumvents this basic facet of procedural justice. The majority opinion holds that habeas petitions are not available unless a claimant‘s success “would necessarily demonstrate the invalidity of confinement or its duration.” Pr. Op. at 927 (emphasis added) (internal quotations omitted). Where a claimant alleges a procedural violation, as Nettles does here, the majority uses the fact that the proceeding might have resulted in the same outcome anyway to close the door to habeas relief entirely.
This approach, if taken seriously, will foreclose habeas relief on many procedural claims. Petitions for a writ of habeas corpus may be brought by those alleging they are “in custody in violation of the Constitution or laws or treaties of the United States.”
Just as the prisoners in the cited cases argued that they were in custody in violation of the law due to a trial prejudiced by procedural violations, Nettles argues he is in custody in violation of the law due to a parole hearing prejudiced by procedural violations. We have regularly heard postconviction claims brought in habeas by prisoners even when the relief sought would not necessarily result in a speedier release.
Earlier this year, for instance, in Rodriguez v. Copenhaver, we granted relief to a federal prisoner under § 2241 even though such relief “would not necessarily lead to his immediate or earlier release from confinement.” Pr. Op. at 935; see Rodriguez v. Copenhaver, 823 F.3d 1238, No. 14-16399, 2016 WL 3003423 (9th Cir. May 25, 2016). In that case, Rodriguez contested the Bureau of Prisons’ (BOP) rejection of his request to get credit applied to his sentence for time served in state custody. Id. at 1241-42. In evaluating Rodriguez‘s request, the BOP considered a letter from a judge who had been recused from Rodriguez‘s case. Id. at 1241-43. We held that by incorporating the letter into its decision, the BOP violated both due process and a federal statute. Id. at 1243.
Importantly, Rodriguez did not indicate that Rodriguez was entitled to have credit applied to his sentence. To the contrary,
Rodriguez is not the only habeas petition we have entertained relating to early release where the petitioner‘s success “would not necessarily spell immediate or speedier release.” Wilkinson v. Dotson, 544 U.S. 74, 81-82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005); see, e.g., Close v. Thomas, 653 F.3d 970 (9th Cir.2011); Crickon v. Thomas, 579 F.3d 978 (9th Cir. 2009).
The Supreme Court has also heard at least two such cases, California Department of Corrections v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), and Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). In Morales, the petitioner, Morales, brought a habeas action via
Edwards v. Balisok, a case the majority discusses, is another relevant example and hints at the implications of the majority‘s standard. Pr. Op. at 928-29. In Balisok, the Supreme Court required the respondent, Balisok, to bring his due process challenge to the prison‘s disciplinary pro-
For Morales, Rodriguez, and Balisok, as well as for many who challenge the adequacy of procedures used at the trial resulting in their conviction, the procedural violation may not have been the cause of their confinement. They might well have been confined absent the violation. But the Supreme Court has never held—or even suggested—that petitioners such as these have not successfully alleged they are “in custody in violation of the Constitution or laws or treaties of the United States,”
This understanding of the habeas statutes is also more consonant with the relief that courts typically grant a habeas petitioner. A petitioner‘s success on their habeas claim often does not meet the majority‘s standard of “immediate or speedier release.” Pr. Op. at 934. Frequently, federal courts allow the prisoner to remain confined while the relevant proceeding is redone. See, e.g., Rodriguez, 823 F.3d at 1243. These remedies are consistent with Congress‘s directive that courts sitting in habeas “shall ... dispose of the matter as law and justice require.”
II
The majority attempts to justify its departure from statute and precedent by asserting that its holding is consistent with congressional intent and the Supreme Court‘s “strong suggestion” that habeas relief and relief under § 1983 are mutually exclusive. Pr. Op. at 931. But today‘s opin-
A. The proper relationship between habeas and § 1983 is based on the familiar principle of statutory interpretation that “the specific governs the general.” See, e.g., Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170, 127 S.Ct. 2339, 168 L.Ed.2d 54 (2007). Section 1983 provides a broad vehicle for relief from illegal state action in general, while the writ of habeas corpus is a remedy for relief from illegal confinement in particular. Preiser, 411 U.S. at 490. Preiser held that the specific remedy provided by the habeas statute “must override the general terms of § 1983.” Id. In other words, when prisoners directly challenge the fact or duration of their confinement, that challenge must be brought under habeas.
The justification for so limiting § 1983 actions is that the habeas remedy is “sufficiently comprehensive” to “demonstrate congressional intent to preclude the remedy of suits under § 1983” for certain claims by prisoners. Middlesex Cty. Sewerage Auth. v. Nat‘l Sea Clammers Ass‘n, 453 U.S. 1, 20, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981); Docken, 393 F.3d at 1026 n. 2. Those claims, held Preiser, are those that are “within the core of habeas corpus.” 411 U.S. at 487 (emphasis added). Preiser defined that core to contain claims where “a state prisoner is challenging the very fact or duration of his physical imprisonment.” Id. at 500. Preiser did not hold that habeas jurisdic- met. The present issue, however, is whether the petitioner was entitled to bring a habeas petition at all.
The justification for limiting § 1983 out of consideration for habeas does not work in reverse. The existence of a broad statute does not imply a congressional desire to limit a more specific one, especially one largely enacted later.4 “[T]he specific governs the general,” Long Island Care, 551 U.S. at 170, not vice versa. Consistent with that precept, the Supreme Court‘s cases since Preiser have focused on whether and to what extent § 1983 should be limited by habeas, not the other way around. See, e.g., Dotson, 544 U.S. 74, 81, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005); Skinner, 562 U.S. at 534.
The majority opinion maintains these cases should be seen as “strongly suggesting” that habeas and § 1983 do not overlap
Nor does the dicta in the three opinions regarding habeas cases, read in context, support the majority‘s reading of the cases. For instance, the majority cites Muhammad‘s statement that the claimant “raised no claim on which habeas relief could have been granted on any recognized theory,” and that the relief he sought would “not necessarily” have affected the duration of his confinement, to argue that habeas is not available for claims unless they necessarily challenge the duration of confinement. Pr. Op. at 929; Muhammad, 540 U.S. at 754-55. But in Muhammad, the lower court had “expressly found or assumed that no good-time credits were eliminated by the pre-hearing action Muhammad called in question.” 540 U.S. at 754. In include legislation in 1966 inserting language that the Supreme Court noted “seem[ed] specifically to contemplate the possibility of relief other than immediate release from physical custody.” Carafas v. LaVallee, 391 U.S. 234, 239, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) (discussing the 1966 amendment providing for “release from custody or other remedy“); see also
Skinner and Dotson are similarly indeterminate, at best, as to potential limitations on habeas jurisdiction. Both cases concern whether a claim “may” be brought via § 1983, not whether it “must” be so brought because habeas is unavailable. Skinner, 562 U.S. at 524; Dotson, 544 U.S. at 82. Notably, Dotson, in explaining why the § 1983 claims there at issue could go forward, reprised the Preiser standard: “Because neither prisoner‘s claim would necessarily spell speedier release, neither lies at ‘the core of habeas corpus.‘” Dotson, 544 U.S. at 82 (quoting Preiser, 411 U.S. at 489). Dotson did not say, any more than did Preiser, that because of the character of the prisoner‘s claim, they were outside the scope of habeas corpus altogether.
Skinner confirmed that limitation on the observation in Dotson regarding habeas, stating that “[w]here the prisoner‘s claim would not ‘necessarily spell speedier release,’ ... suit may be brought under § 1983.” 562 U.S. at 525 (emphasis added). Like the language quoted above in Muhammad, the statement that such claims may be brought via § 1983 does not suggest that they may not be also brought in habeas.
Further, Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), a case the majority does not mention, affirmatively indicated that habeas petitions may be brought for relief other than speedier release from confinement. Boumediene considered the core capacities that a tribunal must retain to maintain an adequate substitute for a writ of habeas corpus. Boumediene noted that while a court “must have the power to order the conditional release of an individual unlawfully detained[,] ... release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted.” Id. at 779.
The year after Boumediene, and just two years before Skinner, the Supreme Court characterized Dotson as holding that “prisoners who sought new hearings for parole eligibility and suitability need not proceed in habeas“—which would be very odd phrasing if Dotson‘s import was that prisoners with such claims cannot proceed in habeas. Dist. Attorney‘s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 66, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009) (emphasis added). And throughout these cases, the Court has asked consistently whether a claim “lies at the core of habeas corpus,” (emphasis added) phrasing that, as I observed earlier, necessarily indicates there is some area beyond this “core” in which a habeas claim may also lie. See, e.g., Dotson, 544 U.S. at 79 (quoting Preiser, 411 U.S. at 487) (internal quotation marks omitted).
To counter all of this precedent, the majority opinion (and, in part, Judge Hurwitz‘s concurrence) rely on three words in a Skinner footnote that could, out of context, suggest that habeas is limited to its “core.” Quoting the same Dotson passage discussed above, Skinner states that “when a prisoner‘s claim would not ‘necessarily spell speedier release,’ that claim does not lie at ‘the core of habeas corpus,’ and may be brought, if at all, under § 1983.” 562 U.S. at 535 n. 13 (quoting Dotson, 544 U.S. at 82, 125 S.Ct. 1242).
Perhaps the phrase “if at all” could be read to suggest that such claims may only
Ambiguous dicta in a footnote is not enough to resolve the precise boundaries of habeas corpus and § 1983—an issue the Supreme Court has explicitly noted and left unresolved for more than four decades, and that the Court several times has indicated does not lie at the boundary between claims that could result in earlier release and those that will. See Preiser, 411 U.S. at 500. That same footnote, as well as Dotson itself, asserts that the Court has not “mov[ed] the line our cases draw,” confirming that neither Dotson or Skinner reached any new conclusions as to that line. 562 U.S. at 535 n. 13 (quoting Dotson, 544 U.S. at 84).
Skinner, Dotson, and the other relevant Supreme Court cases are thus entirely consistent with the notion that § 1983 actions should be limited out of a concern for encroaching on habeas jurisdiction, but that it is permissible for habeas actions to overlap somewhat with claims properly brought under § 1983. The Fifth, Sixth, and D.C. Circuits have held that there is some degree of permissible overlap between § 1983 and habeas. See, e.g., Aamer v. Obama, 742 F.3d 1023, 1033 (D.C.Cir. 2014); Adams v. Bradshaw, 644 F.3d 481, 482-83 (6th Cir.2011) (per curiam); Coleman v. Dretke, 409 F.3d 665, 669-70 (5th Cir.2005) (en banc) (per curiam). But see Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir.2006); Richmond v. Scibana, 387 F.3d 602, 605 (7th Cir.2004).
B. In addition to its reading of Supreme Court precedent, Judge Ikuta‘s opinion, in a discussion joined by only a plurality of the court, asserts that its position is consistent with congressional intent. Pr. Op. at 931-32. But that discussion points to no language in the habeas statute supporting the standard it announces today. Instead, it suggests that by requiring one set of procedures for § 1983 claims under the Prison Litigation Reform Act of 1995 (PLRA),
The existence of distinct sets of procedures does not tell us that Congress intended to limit either procedure‘s substantive scope. Rather, the evident intent was simply that to use either statute, a litigant must meet its procedural requirements.
Even if more could be made of the procedural dissimilarities between § 1983 and federal habeas corpus—which I do not think it can—the plurality gives no reason to think that it is habeas that should be limited, rather than § 1983. As I have noted, § 1983 has been the focus of аll prior cases addressing the overlap between the two.
The plurality‘s reliance on the PLRA and AEDPA is also ahistorical. Preiser‘s discussion of habeas and § 1983 was written in 1973, well before either the PLRA or AEDPA were enacted in the mid-1990s. Congress is generally assumed to be “thoroughly familiar with” Supreme Court prec-
More broadly, the PLRA‘s restrictions on prisoner suits demonstrate the hazards of limiting habeas corpus due to potential overlap with other remedies. The writ of habeas corpus is protected by the Constitution. See U.S. Const. art. I, § 9, cl. 2. There is no such explicit protection for the remedy afforded by § 1983 (which, indeed, did not even exist until after the Civil War). As the PLRA shows, Congress can alter § 1983 at will, to make it more or less available to particular groups like prisoners. Relying on the existence of alternative statutory remedies to justify narrowing the breadth of habeas thus may create gaps that widen over time as Congress alters those remedies. This potential problem is made more likely if we read the existence vel non of other statutory schemes to indicate Congress‘s implicit intent to limit habeas‘s scope. Such an arrangement risks encroaching on the “grand purpose” of one of the most important remedies of our legal order. Boumediene, 553 U.S. at 780 (quoting Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963)).
III
The majority‘s opinion also threatens the scope of habeas for federal prisoners. Such prisoners do not have recourse under § 1983. That statute applies only to violations undertaken “under color of” state law.
The federal habeas statute,
In Close v. Thomas, we heard a similar challenge brought by a federal prisoner under § 2241. Christopher Close, the petitioner, challenged the criteria used to rank prisoners on a waitlist for a drug treatment program, because admission to the program could speed his eligibility for early release. Id. at 972-73. As the opinion noted, id. at 975, the potential acceleration of participants’ release was discretionary—in other words, admission to the program “would not necessarily spell immediate or speedier release.” Dotson, 544 U.S. at 81. But Close‘s claim was allowed to proceed via habeas petition nonetheless. See also Rodriguez, 823 F.3d at 1243.
As Crickon, Close, and Rodriguez indicate, federal prisoners have been able to bring habeas claims alleging procedural defects to the parole process whose resolution would not necessarily result in a speedier release. This practice is long-standing. See, e.g., John v. U.S. Parole Comm‘n, 122 F.3d 1278, 1285 (9th Cir. 1997); Benites v. U.S. Parole Comm‘n, 595 F.2d 518, 520 & n. 1 (9th Cir.1979); see also Elliott v. United States, 572 F.2d 238, 239 (9th Cir.1978) (per curiam) (holding that a federal prisoner‘s challenge to a parole board‘s failure to give “serious consideration” to an application for parole is properly brought via habeas corpus).
Such cases will, presumably, continue to be allowed, as there is no alternative statutory remedy for federal prisoners, and so no possibility of statutory overlap. But the majority opinion points to no statutory language or precedent that suggests any difference in the substantive scope of habeas between federal and state prisoners for alleged constitutional violations. Nor does that opinion otherwise explain why the reach of
***
For all the reasons discussed, I would hold that habeas corpus relief is available to any claimant whose success “could potentially affect the duration of their confinement.” Docken, 393 F.3d at 1031 (emphasis omitted). Such an approach is just as practically feasible as the standard in the majority opinion. In particular, it does not rely on the “probabilistic analysis” that opinion rejects. Pr. Op. at 934.
My approach would, to be sure, permit some overlap between habeas and § 1983, although this case does not require us to decide the exact extent of that overlap. But such overlap is not cause for concern. To succeed under either statute, prisoners will have to conform with the requisite procedures. The state has given us no reason that it would be better off in general if cases like this one were brought under § 1983. If anything, state governments usually argue for more cases to be brought in habeas rather than under § 1983, as federal habeas petitioners, unlike plaintiffs under § 1983, are usually required to exhaust state judicial remedies, see Osborne, 557 U.S. 52, and federal habeas courts are often required to defer to the results of these state proceedings. See
Notably, the rule adopted by the majority will not “give needed clarity to state prisoners.” Pr. Op. at 934. That rule departs from precedent and statute, and will generate confusion and delay among those seeking adjudication of their claims who mistakenly choose the wrong vehicle. When it comes to alleged procedural violations in particular, the majority‘s an-
In short, the majority‘s standard, inconsistent with statute and precedent, will unnecessarily create problems for years to come. I therefore dissent.