Damous Nettles v. Randy Grounds

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAMOUS D. NETTLES, No. 12-16935

Petitioner-Appellant,

D.C. No.

v. 1:11-cv-01201-

AWI-JLT

RANDY GROUNDS, Warden,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, Senior District Judge, Presiding

MATTA JUAN SANTOS, No. 13-15050

Petitioner-Appellant,

D.C. No.

v. 1:12-cv-01651-

LJO-GSA

K. HOLLAND and JEFFREY BEARD,

Respondents-Appellees. OPINION

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted

October 6, 2014—San Francisco, California

2 NETTLES V. GROUNDS

Filed May 28, 2015

Before: Sandra S. Ikuta, N. Randy Smith,

and Mary H. Murguia, Circuit Judges.

Opinion by Judge Ikuta;

Partial Concurrence and Partial Dissent by Judge Murguia

SUMMARY*

Habeas Corpus

The panel affirmed the district court’s dismissal of

California state prisoner Damous Nettles’s habeas corpus

petition seeking expungement of a prison rules violation

report and restoration of thirty days of post-conviction credit;

and reversed the district court’s dismissal of California state

prisoner Matta Juan Santos’s habeas corpus petition claiming

that the process by which the prison validated his gang

involvement violated his due process rights and seeking

release from his resulting confinement in the security housing

unit.

Applying Skinner v. Switzer, 131 S. Ct. 1289 (2011), the

panel held that a claim challenging prison disciplinary

proceedings is cognizable in habeas only if it will

“necessarily spell speedier release” from custody, meaning

that the relief sought will either terminate custody, accelerate

the future date of release from custody, or reduce the level of

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

NETTLES V. GROUNDS 3

custody; and that to the extent this court’s prior decisions

held that a claim is cognizable in habeas if success on the

claim is likely to, or has the mere potential to, affect the

length of a petitioner’s confinement, they are overruled as

irreconcilable with Skinner.

The panel held that because neither the expungement of

the rules violation report nor restoration of the lost good-time

credits would necessarily accelerate the future date of

Nettles’s release from custody, his claim is not cognizable

under the habeas statute.

The panel wrote that it remains bound by the

determination in Bostic v. Carlson, 884 F.2d 1267 (9th Cir.

1989), that there is habeas jurisdiction over a claim that

would result in release from disciplinary segregation to the

general prison population. The panel therefore held that the

district court erred in dismissing Santos’s petition that seeks

a remedy – expungement of the gang validation and release

from the security housing unit to the general population – that

can fairly be described as a quantum change in the level of

custody. The panel remanded for further proceedings on the

merits of Santos’s claim.

Judge Murguia concurred in part and dissented in part.

She disagreed with the majority that a footnote of dicta in

Skinner defines the scope of habeas jurisdiction and abrogates

the decisions in Bostic (habeas jurisdiction is proper when a

prisoner seeks expungement of a disciplinary finding if

“expungement is likely to accelerate the prisoner’s eligibility

for parole”), and Docken v. Chase, 393 F.3d 1024 (9th Cir.

2004) (habeas jurisdiction is proper when a prisoner’s

challenge to parole procedures “could potentially affect the

duration of . . . confinement”). She would reverse and

4 NETTLES V. GROUNDS

remand in both cases because Santos and Nettles have each

asserted a cognizable habeas claim under the law of this

circuit.

COUNSEL

Monica Knox (argued), Assistant Federal Defender; Heather

Williams, Federal Defender, Sacramento, California, for

Petitioner-Appellant Damous D. Nettles.

Peggy Sasso (argued), Assistant Federal Defender; Heather

Williams, Federal Defender, Fresno, California, for

Petitioner-Appellant Matta Juan Santos.

Andrew R. Woodrow (argued), Deputy Attorney General;

Kamala D. Harris, Attorney General of California; Jennifer

A. Neill, Senior Assistant Attorney General; Phillip J.

Lindsay, Supervising Deputy Attorney General, Sacramento,

California, for Respondent-Appellee Randy Grounds,

Warden.

Amy Daniel (argued), Deputy Attorney General; Kamala D.

Harris, Attorney General of California; Jennifer A. Neill,

Senior Assistant Attorney General; Jessica N. Blonien,

Supervising Deputy Attorney General, Sacramento,

California, for Respondents-Appellees K. Holland and Jeffrey

Beard.

NETTLES V. GROUNDS 5

OPINION

IKUTA, Circuit Judge:

The two appeals consolidated in this opinion require us to

identify the appropriate standard for determining whether a

claim is cognizable under the federal habeas statute.1

Applying Skinner v. Switzer, we conclude that a claim

challenging prison disciplinary proceedings is cognizable in

habeas only if it will “necessarily spell speedier release” from

custody, meaning that the relief sought will either terminate

custody, accelerate the future date of release from custody, or

reduce the level of custody. 131 S. Ct. 1289, 1299 n.13

(2011) (emphasis added) (internal quotation marks omitted)

(citing Wilkinson v. Dotson, 544 U.S. 74, 86 (2005) (Scalia,

J., concurring)). To the extent our prior decisions held that a

claim is cognizable in habeas if success on the claim is likely

to, or has the mere potential to, affect the length of a

petitioner’s confinement, they are overruled as irreconcilable

with Skinner. See Blair v. Martel, 645 F.3d 1151, 1157 (9th

Cir. 2011).

I

Damous Nettles and Matta Juan Santos, both prisoners in

California state prisons, appeal the district court’s dismissal

of their habeas petitions.

A

In 1990, Nettles was convicted in California of attempted

first degree murder with use of a firearm, and other offenses.

1

These appeals are ordered consolidated for purposes of this disposition.

6 NETTLES V. GROUNDS

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 sentenced to prison for a determinate term of

twelve years and a life term with the possibility of parole for

his convictions for attempted murder and dissuading and

conspiring to dissuade a witness from attending or giving

testimony at trial. His minimum eligible parole date was

October 19, 2005. An initial parole consideration hearing

was held in 2004. Before that hearing, prison staff had issued

some thirty-nine rules violations reports (CDC Form 115) to

Nettles. These reports are issued for misconduct that “is

believed to be a violation of law or is not minor in nature.”

Cal. Code Regs. tit. 15, § 3312(a)(3). He also received

numerous citations for lesser types of misconduct. See id.

§ 3312(a)(2) (noting that “documentation of minor

misconduct” should be “documented on a CDC Form

128-A”). At his initial parole hearing in 2004, the Board of

Prison Terms (now the Board of Parole Hearings, or Board)2

deemed Nettles to be unsuitable for parole and declined to set

a parole date. It scheduled the next parole suitability hearing

for 2006, but the date was postponed several times.

After 2004, Nettles received seven additional rules

violations reports. On February 26, 2008, staff issued Nettles

2

At the time of the hearing, the Board was referred to as the Board of

Prison Terms. This entity was replaced by the Board of Parole Hearings

in 2005. See Cal. Gov’t Code § 12838.4.

NETTLES V. GROUNDS 7

a rules violation report for threatening to stab a corrections

officer. After an investigation of the incident and a hearing,

Nettles was found guilty, and given a four-month term in the

segregated housing unit. He also lost thirty days of post-

conviction credit.

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,

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

imprisonments.

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

8 NETTLES V. GROUNDS

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, the 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 hearing panel 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, id. § 2306,

the commissioner made recommendations regarding “what

steps may be undertaken to enhance the possibility of a grant

of parole at a future hearing,” id. § 2304, telling Nettles that

“[f]or next time, you certainly need to become and remain

disciplinary free.”

On January 23, 2009, Nettles filed a habeas petition in the

Superior Court of California 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

Superior Court denied the petition, concluding that Nettles

failed to exhaust his administrative remedies concerning these

NETTLES V. GROUNDS 9

claims.3 The California Court of Appeal and California

Supreme Court then summarily denied the petition.

On June 10, 2011, Nettles filed a habeas petition in

federal court seeking, among other things, “restoration of

good time,” presumably referring to the loss of thirty days of

post-conviction credits as a result of the 2008 disciplinary

decision, and expungement of the February 26, 2008 rules

violation report. After being ordered to respond, the state

moved to dismiss the petition, arguing that the court lacked

jurisdiction to entertain the petition because the 2008

disciplinary decision did not impact the fact or duration of

Nettles’s confinement. Nettles opposed the motion, arguing

that the disciplinary decision impacted the duration of his

confinement because it delayed his parole hearing and

constituted grounds for future denial of parole.

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.

B

Santos was convicted in 1996 under California Penal

Code section 209(a) for participating in a kidnap-for-ransom

scheme. He was sentenced to a term of life in prison with the

possibility of parole plus nine years.

3

As the state acknowledges, it did not argue to the district court that

Nettles’s claim was procedurally barred. Nor does the state raise this issue

on appeal. Therefore, we do not address it.

10 NETTLES V. GROUNDS

After prison investigators verified allegations that Santos

was a currently active member of the Mexican Mafia, a

prison official validated the gang-involvement determination

on February 10, 2011. See Cal. Code Regs. tit. 15, § 3378.

As a result of this gang validation, Santos was removed from

the general prison population and confined in the security

housing unit (SHU) indefinitely.

Santos claims that the SHU is a “prison within a prison

where prisoner[s] are denied virtually all privileges.”

According to Santos, prisoners placed in the SHU spend

approximately twenty-two hours per day in their cells, receive

all meals in their cells, are denied contact visits and phone

access, and are not allowed to participate in training or

education activities. Additionally, a prisoner is ineligible to

earn post-conviction credits under California Penal Code

section 2933(b) or program credit reductions under California

Penal Code section 2933.05 during the time the prisoner is

placed in the SHU. Cal. Penal Code § 2933.6.

Santos administratively appealed his gang validation.

After his third and final administrative appeal was denied,

Santos filed a petition for a writ of habeas corpus in the

Superior Court of California arguing, among other things, that

the allegations of his gang involvement were false, and that

there was no evidence supporting the gang validation. Santos

demanded that the prison expunge the gang validation from

his file and release him to the general prison population. The

Superior Court denied Santos’s petition, finding that

sufficient evidence supported the gang validation. The

California Court of Appeal and California Supreme Court

summarily denied the petition.

NETTLES V. GROUNDS 11

On October 9, 2012, Santos filed a petition for a writ of

habeas corpus in federal court, arguing that the gang

validation violated his due process rights because it was

“based on false, unreliable and insufficient information.” He

sought release from the SHU. The district court dismissed

the petition on the ground that Santos’s claims were not

cognizable under the federal habeas statute, as they concerned

the conditions, rather than the fact or duration, of his

confinement. Santos timely appealed the district court’s

decision.

II

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.

Both Nettles’s and Santos’s appeals require us to

determine when we lack jurisdiction over a claim raised in a

habeas petition. By statute, federal courts must “entertain an

application for a writ of habeas corpus in behalf of a person

in custody pursuant to the judgment of a State court only on

the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a); see also 28 U.S.C. § 2241(c)(3).

According to the Supreme Court, this language, as well as

“the common-law history of the writ” makes clear “that the

essence of habeas corpus is an attack by a person in custody

upon the legality of that custody, and that the traditional

function of the writ is to secure release from illegal custody.”

Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).

12 NETTLES V. GROUNDS

In the leading case of Preiser, the Court considered

whether prisoners who had lost good-time credits as a result

of disciplinary proceedings could bring an action under

42 U.S.C. § 19834 for restoration of the credits on the ground

that the proceedings violated their due process rights, or

whether they were limited to bringing a habeas petition. Id.

at 476–77. The prisoners would have been entitled to

immediate release from prison if their good-time credits had

been restored. Id.

Because analyzing this issue required an inquiry into the

respective spheres of habeas and civil rights actions, the

Court first gave federal courts guidance as to what types of

cases sounded in habeas. According to the Court, “when a

state prisoner is challenging the very fact or duration of his

physical imprisonment, and the relief he seeks is a

determination that he is entitled to immediate release or a

speedier release from that imprisonment, his sole federal

remedy is a writ of habeas corpus.” Id. at 500. The Court

noted that the scope of habeas had evolved over the years. Id.

at 485. A person is deemed to be “in custody” for purposes

of habeas when a person is subject to parole, id. at 486 n.7

(citing Jones v. Cunningham, 371 U.S. 236 (1963)), or even

when the person is released on bail or on the person’s own

recognizance, id. (citing Hensley v. Municipal Court,

411 U.S. 345 (1973)). In addition, a prisoner is deemed to be

seeking “release” from custody even when the prisoner will

not gain freedom, but will be released into a different form of

4

Section 1983 provides that: “Every person who, under color of [state

law] . . . subjects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured . . . .” 42 U.S.C. § 1983.

NETTLES V. GROUNDS 13

custody. See id. at 486 (stating that the writ of habeas corpus

is available to obtain release from the wrong institution to the

correct institution) (citing Humphrey v. Cady, 405 U.S. 504

(1972) and In re Bonner, 151 U.S. 242 (1894)). Finally, “the

federal habeas corpus statute does not deny the federal courts

power to fashion appropriate relief other than immediate

release.” Id. at 487 (internal quotation marks omitted). For

instance, prisoners can challenge an unlawful loss of good-

time credits even if restoration of such credits “merely

shortened the length of their confinement, rather than

required immediate discharge from that confinement.” Id.

Turning next to the appropriate scope of § 1983, the Court

ruled that where prisoners challenged the fact or duration of

their imprisonment, and sought immediate or speedier release

from that imprisonment, they were precluded from bringing

that challenge in a civil rights action under § 1983. Id. at 500.

The Court reasoned that although “the literal terms of § 1983

might seem to cover” claims that a prisoner’s confinement

violated the Constitution, id. at 489, there was, as the Court

later put it, “an implicit exception from § 1983’s otherwise

broad scope for actions that lie ‘within the core of habeas

corpus,’” Wilkinson v. Dotson, 544 U.S. 74, 79 (2005)

(quoting Preiser, 411 U.S. at 487). Because Congress passed

the more specific habeas statute, requiring exhaustion of state

remedies, to cover state prisoners’ constitutional challenges

to their convictions and sentences, any prisoner complaint

lying at “the core of habeas corpus” had to be brought by

means of a habeas petition, not under § 1983. Preiser,

411 U.S. at 489–90.5

5

Heck v. Humphrey further limited the scope of § 1983, holding that

claims for damages that necessarily imply the invalidity of a conviction or

sentence are cognizable under § 1983 only if the plaintiff proves that the

14 NETTLES V. GROUNDS

The Court then examined the prisoners’ claims in light of

these rulings. Because the prisoners in Preiser brought a

challenge seeking relief that would result in immediate

release from prison, their claims “fell squarely within [the]

traditional scope of habeas corpus.” Id. at 487. Because the

claims were “within the core of habeas corpus,” that was the

prisoners’ exclusive remedy, and they were precluded from

bringing the action under § 1983. Id. at 487–88, 500.

Although Preiser helps delineate the core of habeas, it did

not delineate the outer limits of habeas jurisdiction, the

question before us here. Indeed, Preiser held this issue open,

stating that “we need not in this case explore the appropriate

limits of habeas corpus as an alternative remedy to a proper

action under § 1983.” Id. at 500.

We addressed this issue in cases following Preiser, and

made clear that habeas jurisdiction was available only for

claims that had some nexus to shortening the length of

confinement. We did not, however, fully delineate the

contours of this nexus. In Crawford v. Bell, we held that

habeas did not extend to challenges to the “terms and

conditions” of a prisoner’s incarceration, where the

appropriate remedy would not include “release from

confinement.” 599 F.2d 890, 891–92 (9th Cir. 1979). In

Bostic v. Carlson, we held that a prisoner could bring a

petition in habeas to seek relief from various disciplinary

conviction or sentence has been reversed, expunged, or declared invalid.

512 U.S. 477, 486–87 (1994). In establishing this “favorable termination”

rule, the Court reasoned that the sort of action described in Heck is most

closely analogous to the common-law cause of action for malicious

prosecution, which requires “termination of the prior criminal proceeding

in favor of the accused.” Id. at 484.

NETTLES V. GROUNDS 15

decisions that resulted in “forfeiture of statutory good time or

segregation from the general prison population,” where the

relief was for “expungement of the incident from his

disciplinary record” so long as such “expungement is likely

to accelerate the prisoner’s eligibility for parole.” 884 F.2d

1267, 1269 (9th Cir. 1989). In Ramirez v. Galaza, we stated

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).

In Docken v. Chase, we held 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 their confinement.” 393 F.3d 1024,

1031 (9th Cir. 2004) (emphasis omitted). These cases

together establish that habeas jurisdiction is available only for

claims that, if successful, would have some shortening effect

on the length of a person’s custody. We have not made clear,

however, whether a claim has to necessarily, likely, or merely

potentially accelerate release from confinement to be

cognizable in habeas.

In Skinner v. Switzer, the Supreme Court again confronted

the question, “[w]hen may a state prisoner, complaining of

unconstitutional state action, pursue a civil rights claim under

§ 1983, and when is habeas corpus the prisoner’s sole

remedy?” Skinner, 131 S. Ct. at 1298. In Skinner, the Court

considered a prisoner’s lawsuit against a Texas district

attorney for failing to provide DNA testing the prisoner

requested. Id. at 1295. The Court concluded that the prisoner

could assert that claim in an action under § 1983 rather than

in a petition for a writ of habeas corpus because a judgment

that simply orders DNA tests will not necessarily imply the

16 NETTLES V. GROUNDS

unlawfulness of the state’s custody or spell speedier release.

Id. at 1293.6

In reaching this conclusion, Skinner relied on Wilkinson

v. Dotson, an earlier Supreme Court decision holding that

prisoners could challenge the retroactive application of parole

guidelines under § 1983 because their claims did not lie at the

“core of habeas corpus.” Dotson, 544 U.S. at 82 (internal

quotation marks omitted). Skinner explained that “Dotson

declared . . . 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.” Skinner, 131 S. Ct. at 1299

n.13 (emphasis added). Citing Justice Scalia’s concurrence

in Dotson, Skinner indicated that the Court had never

“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 1299 (emphasis

added) (quoting Dotson, 544 U.S. at 86 (Scalia, J.,

concurring)). Accordingly, Skinner adopted the line between

6

The Court previously indicated that a claim that does not imply the

invalidity of the underlying conviction or “necessarily” affect the duration

of time to be served, is not a claim on which habeas relief can be granted.

Muhammad v. Close, 540 U.S. 749, 754–55 (2004) (per curiam). In

Close, the Supreme Court limited the applicability of Heck by holding that

its favorable termination requirement was not applicable, and the prisoner

could bring a § 1983 claim, when the prisoner challenged 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,” because such a challenge “raised no claim on which habeas relief

could have been granted on any recognized theory.” Id.

NETTLES V. GROUNDS 17

§ 1983 claims and habeas actions that it discerned in Dotson.

Id.7

Applying Skinner’s ruling on the outer limits of habeas

jurisdiction, we stated that federal courts lack habeas

jurisdiction to consider claims for constitutional violations

that do not necessarily spell speedier release. See Blair,

645 F.3d at 1157. In Blair, we considered whether a state

prisoner could bring a habeas petition claiming that the

California Supreme Court’s delay in processing his direct

appeal deprived him of due process. Id. We dismissed this

claim, in part because we lacked habeas jurisdiction. Id. at

1157–58. We explained that Dotson and Skinner “distinguish

between claims that necessarily imply the invalidity of a

conviction,” which must be brought in a habeas petition, and

“claims for constitutional violations that do not necessarily

spell speedier release and thus do not lie at the core of habeas

corpus, which may be brought, if at all, under § 1983.” Id. at

1157. Because the prisoner’s claim did not challenge the

validity of his conviction or “necessarily spell speedier

7

The dissent argues that we are not bound by Skinner’s distinction

between claims that may be brought in a habeas action and those that may

be brought in a § 1983 claim because Skinner’s interpretation of Dotson

is wrong. But, of course, we are bound by the Supreme Court’s

statements and its characterization of its own precedent, regardless

whether we believe our interpretation of its precedents is superior. Cf.

Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001) (“A decision of

the Supreme Court will control that corner of the law unless and until the

Supreme Court itself overrules or modifies it. Judges of the inferior courts

may voice their criticisms, but follow it they must.”); Rodriguez de Quijas

v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent

of this Court has direct application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of Appeals should

follow the case which directly controls, leaving to this Court the

prerogative of overruling its own decisions.”).

18 NETTLES V. GROUNDS

release,” we concluded that it “belongs in a § 1983 complaint,

not a habeas petition.” Id. at 1157–58; see also Griffin v.

Gomez, 741 F.3d 10, 17 & n.15 (9th Cir. 2014) (“Though we

had held that [an order requiring a change in conditions of

confinement] could issue on a habeas petition, the Supreme

Court [in Skinner, 131 S. Ct. at 1299 n.13] has since held

otherwise.”). But see Thornton v. Brown, 757 F.3d 834, 841

& n.4 (9th Cir. 2013) (stating in passing that § 1983 and

habeas may provide alternative means to challenge prison

conditions, and noting parenthetically that Skinner raised, but

did not decide “the question whether ‘habeas [is] the sole

remedy, or even an available one,’ for certain types of claims

(quoting Skinner, 131 S. Ct. at 1299) (alteration in original)).

We now reaffirm our statements in Blair and Griffin, and

hold that we are bound by the Court’s express statement in

Skinner that relief is available to a prisoner under the federal

habeas statute only if success on the claim would “necessarily

spell speedier release” from custody, which Skinner

suggested would include termination of custody, acceleration

of the future date of release from custody, or reduction of the

level of custody. See Skinner, 131 S. Ct. at 1299 & n.13.8

This conclusion is not only consistent with the plain language

of Skinner and our own previous interpretations of that case,

it is also consistent with the Court’s precedents and the

common law history of the writ. See Preiser, 411 U.S. at

484–86; Dotson, 544 U.S. at 85–87 (Scalia, J., concurring);

Muhammad v. Close, 540 U.S. 749, 754–55 (2004) (per

curiam) (holding that a prisoner “raised no claim on which

habeas relief could have been granted on any recognized

8

The dissent complains that our reading of Skinner is “strained,” but our

interpretation is consistent with the interpretation adopted by two prior

panels. See Blair, 645 F.3d at 1157–58; Griffin, 741 F.3d at 17 & n.15.

NETTLES V. GROUNDS 19

theory” where the administrative determinations he

challenged neither raised an implication about the validity of

the underlying conviction nor necessarily affected the

duration of time to be served). Accordingly, we conclude that

under Skinner, in cases involving challenges to prison

disciplinary proceedings, the writ of habeas corpus extends

only to claims that, if successful, will “necessarily spell

speedier release.” See Skinner, 131 S. Ct. at 1299 n.13

(emphasis added). To the extent our cases have indicated that

the writ of habeas corpus may extend to claims that, if

successful, would merely be likely to or have the potential to

lead to a speedier release, they are superceded by the

Supreme Court’s rulings. See Miller v. Gammie, 335 F.3d

889, 893 (9th Cir. 2003) (“[W]here the reasoning or theory of

our prior circuit authority is clearly irreconcilable with the

reasoning or theory of intervening higher authority, a three-

judge panel should consider itself bound by the later and

controlling authority, and should reject the prior circuit

opinion as having been effectively overruled.”). Prisoners

seeking to bring other challenges to prison conditions may

have recourse to § 1983, which allows them to bring claims

without exhausting state remedies or facing the highly

deferential standard of review applicable to habeas claims.9

9

The clarity provided by Skinner’s distinction between habeas and

§ 1983 actions not only provides guidance to prisoners regarding the

correct form of action for their claims, but also resolves much of the

understandable confusion of prison officials regarding which prisoner

claims are cognizable in habeas. In these appeals, for instance, the state

argued in favor of interpreting Skinner as precluding habeas petitions for

claims that do not lie at the core of habeas, even though such a rule

channels prisoner claims towards the more flexible § 1983 cause of action.

In Skinner itself, by contrast, the state took the opposite position, urging

that an action raising a due process claim relating to DNA testing was at

20 NETTLES V. GROUNDS

III

We now apply these principles to the habeas petitions

filed by Nettles and Santos.

A

Nettles seeks two forms of relief. First, he seeks

expungement of the February 26, 2008 rules violation report

for threatening to stab a corrections officer. Second, he seeks

restoration of the thirty days of post-conviction credit that

were lost based on a finding that he was guilty of the alleged

rules violation. We must determine whether either of these

forms of relief will “necessarily spell speedier release” from

custody. See Skinner, 131 S. Ct. at 1299 n.13.

1

In order to understand Nettles’s arguments that both

claims are cognizable in habeas, it is first necessary to review

certain aspects of California’s parole system. If a prisoner,

like Nettles, has been given a life sentence with the

possibility of parole, the earliest date on which such a

prisoner may be released on parole is termed the “minimum

eligible parole date.” Cal. Code Regs. tit.15, § 2000(b)(67).

This date is set by statute, and the California Department of

Corrections is responsible for calculating it. Id. § 2400.

One year before a prisoner reaches the minimum eligible

parole date, the Board (or a panel of two or more

commissioners) meets with the inmate, and sets a parole

“the core of the criminal proceeding itself” and had to be brought in

habeas. 131 S.Ct. at 1299 n.13 (quoting oral argument transcript).

NETTLES V. GROUNDS 21

release date “unless it determines that the gravity” of the

prisoner’s offenses “is such that consideration of the public

safety requires a more lengthy period of incarceration.” Cal.

Penal Code § 3041(b); see also Cal. Code Regs. tit. 15,

§ 2281(b) (listing information considered in determining

whether a prisoner is suitable for release on parole). If the

Board decides not to set a parole release date, the Board will

schedule the next hearing for a period ranging from three to

fifteen years, depending on statutory criteria. Cal. Penal

Code § 3041.5(b)(3).

If the Board determines that the prisoner is suitable for

parole, it will calculate a parole date in the manner required

by the regulations. Cal. Code Regs. tit. 15, §§ 2289, 2317.

First, the Board calculates a base term, using a matrix set out

in the regulations. Id. §§ 2282, 2403. Among other factors,

the Board may consider post-conviction credit accrued by the

prisoner for time served, but “[i]n no case may post

conviction credit advance a release date earlier than the

minimum eligible parole date.” Id. § 2290(a). After the base

term has been determined, the prisoner’s post-conviction

credits are subtracted to determine the adjusted term. Id.

§ 2411(a). If this calculation establishes that the prisoner has

served time equal to or greater than the adjusted term, the

prisoner is entitled to release. Id. § 2289.

2

Nettles argues that expunging the 2008 rules violation

report from his record is reasonably likely to accelerate his

release. He argues that under California law, the Board “shall

normally set a parole release date” unless the Board

determines that “the inmate constitutes a current threat to

public safety.” See In re Lawrence, 190 P.3d 535, 546, 553

22 NETTLES V. GROUNDS

(Cal. 2008) (internal quotation marks omitted). Nettles

argues that without the 2008 rules violation on his record, he

would be able to present the Board fifteen years free of any

actions relating to drugs or violence, and this would have

some effect in accelerating his release. While acknowledging

that the 2009 hearing panel might not have found him eligible

for parole, even without the 2008 rules violation report,

Nettles claims that at a minimum, the Board would have

scheduled the next parole suitability hearing at an earlier date,

or that Nettles would be able to accelerate the next hearing

due to a “change in circumstances.” Cal. Penal Code

§ 3041.5(d). Further, Nettles claims that the existence of the

2008 rules violation report on his record will detract from the

Board’s consideration of his parole suitability for years to

come. Because the expungement relief Nettles requests will

prevent these roadblocks to parole, Nettles contends his

claims are cognizable in habeas.

We reject these arguments, because the effect of an

expungement of the 2008 rules violation report is too

attenuated to meet the Skinner standard. While the 2008 rules

violation report will likely have some effect on the Board’s

consideration, there is no basis for concluding that the

expungement of this report from the record will “necessarily

spell speedier release” for Nettles. See Skinner, 131 S. Ct. at

1299 n.13. Nor will it necessarily terminate Nettles’s

custody, accelerate the future date of his release, or reduce his

level of custody. See id. The effect of a rules violation on

parole suitability is a matter of state law or regulation, and,

under California law, a rules violation is merely one factor

the parole board considers to determine whether a prisoner

“constitutes a current threat to public safety,” Lawrence,

190 P.3d at 553; it is not determinative, see Cal. Code Regs.

tit. 15, § 2281(b) (directing the parole board to consider “[a]ll

NETTLES V. GROUNDS 23

relevant, reliable information” in determining suitability for

parole). Here, the Board 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. Even if successful,

Nettles “will not necessarily shorten the length of his

confinement” because “[t]he parole board will still have the

authority to deny . . . parole on the basis of any of the

grounds presently available to it in evaluating such a request.”

See Ramirez, 334 F.3d at 859 (first alteration in original)

(internal quotation marks omitted). As Close pointed out,

even when a challenge to prison disciplinary proceedings

“may affect the duration of time to be served (by bearing on

the award or revocation of good-time credits),” where “it is

not necessarily so,” a challenge to such proceedings “raise[s]

no claim on which habeas relief could have been granted.”

540 U.S. at 754–55 (emphasis added). Therefore, this claim

is not cognizable in habeas.

Nettles also argues that a restoration of post-conviction

credits would have an effect on the duration of his

confinement. While he acknowledges that restoring the post-

conviction credits would not impact his minimum eligible

parole date, which had already passed at the time he was

deprived of the credits, Nettles contends that restoration of

the credits will reduce the term he must serve before being

released, once the Board determines he is eligible for parole

and sets a term for his release.

Again, we reject this argument. Although the loss of

post-conviction credit could lead to a longer term under some

circumstances, the effect in Nettles’s case is far too

attenuated to meet the standard set forth in Skinner. First, the

24 NETTLES V. GROUNDS

Board has not yet found Nettles to be suitable for parole, and

it is unknown whether the Board will do so at the next parole

hearing. If Nettles is eventually found suitable for parole, and

a term is calculated, a deprivation of post-conviction credits

could affect his release date only if the base term exceeded

the time already served. See Cal. Code Regs. tit. 15, § 2289.

Without knowing how many years Nettles will serve before

the Board finds him suitable for parole or the length of his

base term, we cannot conclude that restoration of the lost

good-time credits would necessarily affect the duration of

Nettles’s confinement if and when the Board finds him

suitable for parole.

Because neither expungement of the 2008 rules violation

report nor restoration of the lost good-time credits would

necessarily accelerate the future date of Nettles’s release from

custody, we hold that his claim is not cognizable under the

federal habeas statute. See Skinner, 131 S. Ct. at 1299 &

n.13.

B

We next turn to Santos’s claim seeking expungement of

the gang validation from his record and release from the SHU

to the general prison population. If successful, Santos’s claim

would result in immediate release from the SHU, but would

not result in immediate release from prison.

We have previously held that “[h]abeas corpus

jurisdiction is also available for a prisoner’s claims that he

has been subjected to greater restrictions of his liberty, such

as disciplinary segregation, without due process of law.”

Bostic, 884 F.2d at 1269. The Seventh Circuit has similarly

concluded:

NETTLES V. GROUNDS 25

If the prisoner is seeking what can fairly be

described as a quantum change in the level of

custody—whether outright freedom, or

freedom subject to the limited reporting and

financial constraints of bond or parole or

probation, or the run of the prison in contrast

to the approximation to solitary confinement

that is disciplinary segregation—then habeas

corpus is his remedy.

Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991). In

reaching this conclusion, Graham distinguished challenges

seeking release from one type of custody to another from

cases challenging prison conditions. See id. (stating that if a

prisoner is “seeking a different program or location or

environment, then he is challenging the conditions rather than

the fact of his confinement and his remedy is under civil

rights law, even if, as will usually be the case, the program or

location or environment that he is challenging is more

restrictive than the alternative that he seeks.”).

We are bound by our ruling in Bostic, because the

Supreme Court’s case law is not “clearly irreconcilable” with

our earlier determination that we have habeas jurisdiction

over a claim that would result in release from disciplinary

segregation to the general prison population. See Gammie,

335 F.3d at 893. The Court has long indicated that a

prisoner’s claim for release from one form of custody to

another, less restrictive form of custody, can be brought in a

habeas petition. See Skinner, 131 S. Ct. at 1299 (suggesting

that habeas was available where the relief sought would

reduce the level of custody); Preiser, 411 U.S. at 486 (stating

there is habeas jurisdiction for claims seeking release on

parole, bail, or on one’s own recognizance); see also Garlotte

26 NETTLES V. GROUNDS

v. Fordice, 515 U.S. 39, 47 (1995) (prisoner’s claim seeking

speedier release from imprisonment to parole was cognizable

in habeas). And the Court has not directly addressed the

question whether a challenge to the degree of constraints in

prison (such as a release from administrative or disciplinary

segregation) is a claim seeking release from custody, or

merely a challenge to conditions of confinement. See Close,

540 U.S. at 751 n. 1 (declining to rule on the question

whether a prisoner might have a habeas claim to challenge

“special disciplinary confinement for infraction of prison

rules”); see also Dotson, 544 U.S. at 86 (Scalia, J.

concurring) (suggesting that “permissible habeas relief” could

include a “quantum change in the level of custody”) (citing

Graham, 922 F.2d at 381)). Accordingly, we remain bound

by the determination in Bostic that a prisoner can seek

expungement of an incident from his disciplinary record

when that would lead to speedier release from disciplinary

segregation.10 See Bostic, 884 F.2d at 1269. As suggested in

Graham, however, a prisoner who is not seeking a quantum

change in the level of custody, such as release from

disciplinary segregation to the general prison population, or

10

After concluding it had no need to address the validity of an order

releasing a prisoner from disciplinary segregation, Griffin nevertheless

noted in passing that Skinner now precluded such an order from issuing

in a habeas petition. See Griffin, 741 F.3d at 17–18 & nn. 14–15. While

we agree with Griffin’s conclusion that Skinner precludes a prisoner from

challenging conditions of confinement in habeas, we disagree with

Griffin’s extension of this rule to preclude habeas challenges to quantum

changes in levels of custody. Because Griffin uttered this overly

restrictive gloss on Skinner “casually and without analysis,” and “in

passing without due consideration of the alternatives” as “a prelude to

another legal issue that command[ed] the panel’s full attention,” it is not

binding precedent in our circuit. In re Wal–Mart Wage & Hour Emp’t

Practices Litig., 737 F.3d 1262, 1268 n. 8 (9th Cir. 2013); see also In re

Magnacom Wireless, LLC, 503 F.3d 984, 993–94 (9th Cir. 2007).

NETTLES V. GROUNDS 27

release from prison on bond, parole, or probation, but is

merely “seeking a different program or location or

environment” even if “the program or location or

environment that he is challenging is more restrictive than the

alternative that he seeks,” does not meet the requirement in

Skinner.11 See Graham, 922 F.2d at 381.

Here, Santos claims that the process by which he was

validated as a gang member violated his due process rights,

and, as a result of this unconstitutional validation, he was

confined in the SHU, which is a disciplinary segregation

facility imposing a greater quantum of custody. The remedy

Santos seeks of expungement of the gang validation from his

record and release from the SHU to the general prison

population, “can fairly be described as a quantum change in

the level of custody.” See id. at 381. Additionally, success

on his claim would result in his immediate release from the

11

Prior to Skinner, there was a circuit split over “the question of the

propriety of using a writ of habeas corpus to obtain review of the

conditions of confinement, as distinct from the fact or length of

confinement.” Spencer v. Haynes, 774 F.3d 467, 470–71 & n.6 (8th Cir.

2014) (quoting Bell v. Wolfish, 441 U.S. 520, 526 n. 6 (1979)). As

explained in Spencer, the D.C., Second, Third, Fourth, and Sixth Circuits

“firmly [stood] in the camp of allowing conditions-of-confinement claims

to be brought in the habeas corpus context,” whereas the Eighth, Fifth,

Seventh, Ninth, and Tenth Circuits held that habeas petitions are not

“appropriate procedural vehicles by which to remedy conditions-of-

confinement claims.” Id. Skinner goes a long way towards resolving this

circuit split by holding that relief is available to a prisoner under the

federal habeas statute only if success on the claim would “necessarily spell

speedier release from custody,” including termination of custody,

acceleration of the future date of release from custody, or reduction of the

level of custody. See Griffin, 741 F.3d at 17& n.15. But cf. Aamer v.

Obama, 742 F.3d 1023, 1026 (D.C. Cir. 2014) (concluding, after Skinner

was decided but without discussing it, that challenges to the conditions of

confinement “properly sound in habeas corpus”).

28 NETTLES V. GROUNDS

SHU to the general prison population. His claim that he has

been subjected to greater restrictions of his liberty without

due process of law is therefore properly brought as a petition

for a writ of habeas corpus.12 See Skinner, 131 S. Ct. at 1299

& n.13; Bostic, 884 F.2d at 1269. Because the district court

erred in dismissing Santos’s petition, we remand to the

district court for further proceedings on the merits of Santos’s

claim.

AFFIRMED IN APPEAL NO. 12-16935, REVERSED

AND REMANDED IN APPEAL NO. 13-15050.

MURGUIA, Circuit Judge, concurring in part, and dissenting

in part:

I disagree with the majority that the Supreme Court

expressly “rul[ed] on the outer limits of habeas jurisdiction”

in Skinner v. Switzer, 131 S. Ct. 1289 (2011). See Majority

17. Skinner addressed whether a prisoner’s civil rights action

could proceed under 42 U.S.C. § 1983, and did not involve a

federal habeas petitioner, much less the scope of relief

available under 28 U.S.C. § 2254. See Skinner, 131 S. Ct. at

1297 (“We take up here only the questions whether there is

federal-court subject-matter jurisdiction over Skinner’s

12

Because we conclude that Santos’s claim that his gang validation

resulted in an increased level of custody is sufficient to render the claim

cognizable under the federal habeas statute, we need not address Santos’s

additional argument that his claim is cognizable because his gang

validation also effectively deprived him of any meaningful opportunity for

release on parole and resulted in the loss of the right to earn good-time

credit.

NETTLES V. GROUNDS 29

complaint, and whether the claim he presses is cognizable

under § 1983.” (emphasis added)). To accept the majority’s

strained reading of Skinner we have to believe that the

Supreme Court, after leaving the issue open for over forty

years,1 conclusively determined the outer boundaries of

habeas jurisdiction in a footnote of a case that did not involve

a habeas petition. We likewise must ignore the Court’s

explicit limitation that its decision was not intended to forge

new law, see Skinner, 131 S. Ct. at 1299 n.13 (stating that

Skinner should not be interpreted to “mov[e] the line” drawn

by the Court’s earlier decisions) (quoting Wilkinson v.

Dotson, 544 U.S. 74, 84 (2005)), and accept that the Supreme

Court implemented this drastic change to habeas jurisdiction

through an ambiguous statement rather than by clear

direction.

Given these hurdles, I cannot agree with the majority that

Skinner’s holding is clearly irreconcilable with our court’s

decisions in Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir.

1989) (habeas jurisdiction is proper when a prisoner seeks

expungement of a disciplinary finding if “expungement is

likely to accelerate the prisoner’s eligibility for parole”), and

Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004)

(habeas jurisdiction is proper when a prisoner’s challenge to

parole procedures “could potentially affect the duration of . . .

confinement”) (emphasis in original)). Even if the majority is

correct that the footnote signals an answer to the issue the

Supreme Court left open in Preiser, the majority is not free to

disregard binding case law absent much clearer direction

from the Supreme Court. See United States v. Green,

1

See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (declining to

address the “limits of habeas corpus as an alternative remedy to a proper

action under [42 U.S.C.] § 1983”).

30 NETTLES V. GROUNDS

722 F.3d 1146, 1150 (9th Cir. 2013). Because the majority’s

holding exceeds the scope of authority granted to a three

judge panel of our court, I must dissent.

I

By concluding that Bostic and Docken are clearly

irreconcilable with Skinner, the majority fails to apply the

requisite level of deference to our binding precedent. “As a

three-judge panel of this circuit, we are bound by prior panel

decisions . . . and can only reexamine them when their

‘reasoning or theory’ of that authority is ‘clearly

irreconcilable’ with the reasoning or theory of intervening

higher authority.” Rodriguez v. AT & T Mobility Servs. LLC,

728 F.3d 975, 979 (9th Cir. 2013) (quoting Miller v. Gammie,

335 F.3d 889, 893 (9th Cir. 2003) (en banc)). There is no

question that “clearly irreconcilable” is a “high standard.”

Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012) (internal

quotation marks and citation omitted). Intervening higher

authority is not clearly irreconcilable simply because there

exists “‘some tension’ between the intervening higher

authority and prior circuit precedent” or because “the

intervening higher authority . . . ‘cast[s] doubt’ on the prior

circuit precedent.” Lair, 697 F.3d at 1207 (internal citations

omitted). Indeed, even “‘strong[] signals’” from the Supreme

Court “aren’t enough” for a “three-judge panel to overrule

existing circuit precedent.” Green, 722 F.3d at 1150 (quoting

Miller, 335 F.3d at 900).

In Skinner, a state prisoner filed a § 1983 action alleging

that the State’s refusal to release certain biological evidence

for DNA testing violated his due process rights. 131 S. Ct. at

1296. The State sought dismissal of Skinner’s complaint on

the basis that Skinner was using his § 1983 action “as a

NETTLES V. GROUNDS 31

platform for attacking his conviction”—a complaint the State

argued could “be pursued, if at all, in an application for

habeas corpus.” Id. at 1299. The Supreme Court narrowly

defined the issue implicated in Skinner, stating that the Court

was addressing only whether Skinner’s claim could proceed

under § 1983, not whether the same claim hypothetically

could be brought in a habeas petition. See 131 S. Ct. at 1297.

Answering the narrow question before it, the Supreme Court

held that Skinner’s claim was cognizable under § 1983

because the claim did not implicate core habeas jurisdiction.

Id. at 1298. The Court reasoned that “[s]uccess in [Skinner’s]

suit for DNA testing would not ‘necessarily imply’ the

invalidity of his conviction” because a conclusion that DNA

testing would ultimately prove Skinner’s innocence was

anything but certain. Id. This holding reiterated what the

Court has previously held: “core” habeas claims—claims that

necessarily spell immediate or speedier release from

confinement—must be brought in habeas, while non-core

claims may be brought under § 1983. See Dotson, 544 U.S.

at 81–82 (surveying governing Supreme Court authority).

The majority reads Skinner differently, concluding that a

single sentence of dicta in footnote 13 forecloses habeas

jurisdiction for all non-core claims, including claims that

closely relate to core habeas proceedings—i.e., claims that, if

successful, will not necessarily result in speedier release but

could affect the duration of confinement. See, e.g., Bostic,

884 F.2d at 1269 (expungement of a disciplinary finding if

“expungement is likely to accelerate the prisoner’s eligibility

for parole”); Docken 393 F.3d at 1031 (when challenged

parole procedures “could potentially affect the duration of

[the prisoner’s] confinement”)).

32 NETTLES V. GROUNDS

The majority’s strained reading of Skinner hinges on the

following sentence in footnote 13: “[Wilkinson v.] Dotson

declared . . . 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.”2 Skinner, 131 S. Ct. at 1297

n.13 (quoting Dotson, 544 U.S. at 84). Reading this

statement in isolation, the majority creates what it coins “the

Skinner standard” and determines that “we are bound by the

Court’s express statement in Skinner that relief is available to

a prisoner under the federal habeas statute only if success on

the claim would ‘necessarily spell speedier release’ from

2

Footnote 13, in its entirety, reads as follows:

Unlike the parole determinations at issue in Wilkinson

v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d

253 (2005), Switzer urges, claims like Skinner’s require

inquiry into the State’s proof at trial and therefore lie at

“the core of the criminal proceeding itself.” Tr. of Oral

41; see id., at 33–34. 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, 125 S.Ct. 1242

(majority opinion) (internal quotation marks omitted);

see id., at 85–86, 125 S.Ct. 1242 (Scalia, J.,

concurring). Whatever might be said of Switzer’s

argument were we to recast our doctrine, Switzer’s

position cannot be reconciled with the line our

precedent currently draws. Nor can the dissent’s

advocacy of a “retur[n] to first principles.” Post, at

1303–1304. Given the importance of providing clear

guidance to the lower courts, “we again see no reason

for moving the line our cases draw.” Dotson, 544 U.S.,

at 84, 125 S.Ct. 1242.

Skinner, 131 S. Ct. at 1299 n.13.

NETTLES V. GROUNDS 33

custody.” In doing so, the majority abrogates our prior

decisions in Bostic and Docken, where our court held that a

prisoner’s claims are properly brought under § 2254 so long

as the claim, if successful, would likely accelerate parole

eligibility, Bostic, 884 F.2d at 1269, or “could potentially

affect the duration of . . . confinement.” Docken, 393 F.3d at

1031. I believe the majority is wrong and has exceeded its

authority.3

3

Notably, the majority justifies its interpretation of Skinner by arguing

that its opinion is “consistent with the interpretation adopted by two prior

panels.” Majority at 18 n.8 (citing Blair, 645 F.3d at 1157–58; Griffin,

741 F.3d at 17 & n.15). The majority’s reliance on these cases is curious,

and most certainly misplaced, particularly because Griffin’s brief mention

of habeas jurisdiction appears to conflict with the majority’s holding in

Santos’s appeal. Griffin involved a California state prisoner who, like

Santos, was a validated gang member who challenged his placement in the

prison’s segregated security housing unit. 741 F.3d at 11. In a 2006

order, the district court granted Griffin’s habeas petition and ordered that

he be released from segregated housing. Id. at 14. The order was too late;

Griffin had been charged in a federal RICO case and was in federal, not

state, custody. Id. Griffin was subsequently transferred back to state

prison and he sought enforcement of the 2006 order. “Procedurally,” the

case before this Court was “a mess.” Id. at 17. Relevant here is the

Griffin panel’s dicta involving the 2006 order, where the panel stated that

although the Ninth Circuit had previously held that such orders could issue

on habeas, “the Supreme Court has since held otherwise.” Id. at 17 &

n.15 (citing Skinner, 131 S.Ct. at 1299 n. 13). Here, the majority contends

its interpretation of Skinner “is consistent” with Griffin’s, but the

majority’s holding in Santos, where the petitioner seeks relief identical to

the relief issued in the 2006 order, is in direct conflict with Griffin’s dicta.

Majority at 25 (“The Court has long indicated that a prisoner’s claim for

release from one form of custody to another, less restrictive form of

custody, can be brought in a habeas petition.”); id. at 28 (Santos’s “claim

that he has been subjected to greater restrictions of his liberty without due

process of law is therefore properly brought as a petition for a writ of

habeas corpus.”).

34 NETTLES V. GROUNDS

To begin with, the “express statement” on which the

majority relies is by no means a clear statement of intent by

the Supreme Court. The sentence states that the Supreme

Court’s decision in Dotson “declared . . . in no uncertain

terms” that only core habeas claims can be pursued under

§ 2254. This statement, however, is inherently ambiguous

given that nothing in Dotson’s holding or reasoning supports

the legal conclusion. As in Skinner, Dotson involved only

whether prisoners seeking relief under § 1983 could pursue

those claims in a civil rights action or, the corollary, whether

the prisoner’s claims implicated “core” habeas jurisdiction

and were therefore Heck-barred. See 544 U.S. at 82–84

(noting prisoners can pursue relief under § 1983 without

exhausting habeas remedy when success in the suit will not

necessarily shorten the prisoner’s sentence). The Court in

Dotson held that the prisoners’ claims—which alleged that

The majority’s reliance on Blair is no more compelling. In Blair, a

habeas petitioner argued that his right to due process was violated because

the California Supreme Court was taking too long to resolve his direct

appeal. 645 F.3d at 1153. By the time the claim reached the Ninth

Circuit, the California Supreme Court had already affirmed the petitioner’s

direct appeal on the merits, prompting the panel in Blair to dismiss the

claim as moot. Id. The panel’s mootness holding renders its subsequent

discussion of habeas jurisdiction an advisory opinion. See Church of

Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (“[A] federal

court has no authority ‘to give opinions upon moot questions or abstract

propositions, or to declare principles or rules of law which cannot affect

the matter in issue in the case before it.’” (quoting Mills v. Green,

159 U.S. 651, 653 (1895)); see also U.S. ex rel. Bledsoe v. Cmty. Health

Sys., Inc., 501 F.3d 493, 507 (6th Cir. 2007).

Materially, in their brief discussions of habeas jurisdiction, Blair and

Griffin did not cite to a single Ninth Circuit habeas case, much less decide

that Bostic and Docken are clearly irreconcilable with Skinner. The

majority exceeds its authority by reaching this conclusion today. See

Green, 722 F.3d at 1150.

NETTLES V. GROUNDS 35

the state’s retroactive application of harsher parole guidelines

violated the Ex Post Facto clause—could proceed under

§ 1983. Nothing in the Court’s decision mandated that such

claims be brought in a civil rights action. Id. Despite the

majority relying entirely on dicta quoting the legal principle

announced in Dotson, the majority is notably silent about the

fact that Dotson itself does not support the majority’s

holding.

There are several additional reasons that undercut the

majority’s conclusion that Skinner redefined habeas

jurisdiction. The issue in Skinner involved “only . . . whether

the claim [Skinner] presses is cognizable under § 1983,” and

the case did not involve a petition for writ of habeas corpus

under § 2254, much less implicate the outer bounds of habeas

jurisdiction. See 131 S. Ct. at 1297. In fact, despite many

opportunities to address this issue, the Supreme Court has

notably refrained from defining the scope of habeas

jurisdiction for over four decades. See Preiser, 411 U.S. at

500. Ironically, the majority’s conclusion that Skinner finally

answers this open question conflicts with the very footnote on

which the majority’s holding relies. The footnote expressly

cautions against reading Skinner to “mov[e] the line” drawn

by the Court’s earlier decisions. 131 S. Ct. at 1299 n.13

(“Given the importance of providing clear guidance to the

lower courts, ‘we again see no reason for moving the line our

cases draw.’” (quoting Dotson, 544 U.S. at 84)).

Given the narrow issue before the Court in Skinner, and

the Court’s explicit limitation in footnote 13 that its decision

was not intended to forge new law, I cannot agree with the

36 NETTLES V. GROUNDS

majority that the ambiguous footnote in Skinner mandates a

departure from our case law.4

II

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). Because Skinner does not abrogate our case

law defining the scope of habeas jurisdiction, these

consolidated appeals are governed by the law of this circuit.

With respect to Matta Juan Santos’s appeal, the majority

agrees that Skinner “is not ‘clearly irreconcilable’ with our

earlier determination that we have habeas jurisdiction over a

claim that would result in release from disciplinary

segregation to the general prison population.” Majority at 25.

I therefore concur in Section III.B. of the majority opinion,

which reverses the district court’s dismissal for lack of

jurisdiction and remands for the district court to consider the

merits of Santos’s habeas petition. Because I disagree that

4

To support its holding, the majority cites a number of pragmatic

reasons for adopting its interpretation of Skinner. For example, the

majority contends that its holding “not only provides guidance to prisoners

regarding the correct form of action for their claims, but also resolves

much of the understandable confusion of prison officials regarding which

prisoner claims are cognizable in habeas.” Majority at 19 n.9. I agree that

the majority’s holding draws a clear distinction between habeas

jurisdiction and jurisdiction under § 1983 that will be easier to implement

than our current jurisprudence. But no matter how practical the majority’s

rule may be, and regardless of whether the Supreme Court will someday

agree with the majority, the single sentence of dicta in Skinner does not

give a three-judge panel authority to overrule the law that binds us now.

See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (court of appeals “was

correct” in adhering to binding precedent despite recognizing an

“infirm[]” Supreme Court decision that the court of appeals rightly

predicted would be overturned by the Supreme Court).

NETTLES V. GROUNDS 37

the majority’s newly created “Skinner standard” governs

Nettles’s appeal, I write separately and evaluate Nettles’s

claim under our court’s established authority. Applying

controlling circuit authority, I would reverse the district

court’s order of dismissal because Nettles has sufficiently

alleged a claim cognizable under § 2254.

A

Damous Nettles, who is a California state prisoner serving

an indeterminate life term for the heinous crimes described at

length in the majority opinion, majority at 5–8, challenges a

disciplinary finding in his prison record, which concluded

that Nettles threatened to stab a correctional officer on

February 26, 2008. In his federal habeas petition, Nettles

argues that he was denied the opportunity to defend against

the allegation because prison officials falsified evidence and

refused to allow Nettles to present testimony from

exculpatory witnesses, in violation of his constitutional rights.

As a result of this disciplinary finding, Nettles was placed in

segregated housing for four months, and he lost thirty days of

post-conviction credit.

The February 26, 2008 violation, and others, was

considered by the parole board a year later, on July 30, 2009,

when the board convened for a parole suitability hearing and

determined that Nettles was not suitable for parole because he

“still pose[d] an unreasonable risk of danger if released from

prison.” Under California law, if a prisoner is deemed

unsuitable for parole, the board has discretion to determine

when to schedule the next hearing—either 3, 5, 7, 10, or 15

years after the hearing at which parole is denied. Cal. Penal

Code § 3041.5(b)(3). Without analysis, the board set Nettles’

next parole hearing for 2019—ten years later.

38 NETTLES V. GROUNDS

In his federal habeas petition, Nettles asserts that “before

the 2008 [violation] for threatening an officer, Nettles had

gone a full decade without any disciplinary action for drugs

or violence; if he is able to expunge the [violation], he would

take to the Board today fifteen years free of any actions

relating to drugs or violence.” He asserts that because the

parole board must consider serious rule violations as a factor

tending to show the prisoner is unsuitable for parole, Cal.

Code Regs. tit. 15, §2402(c)(6), expungement of his vile 2008

offense would result in a “significant change in evidence

probative of his current dangerousness.” Nettles also

contends that expungement will likely advance his next

parole hearing because he will be able to show a “change in

circumstances or new information” related to his current

dangerousness. See Cal. Pen. Code § 3041.5(d)(1).

Nettles could be right; he could also be wrong. But,

adhering to our binding precedent, the question before us is

not what the parole board will ultimately decide should

Nettles successfully expunge his 2008 rules violation or what

we would do if we were sitting as parole commissioners.

Indeed, “[w]e are ill-inclined . . . to substitute our substantive

analysis of the likely outcome of [Nettles]’ parole hearings

for that of the Board.” Docken, 393 F.3d at 1031. The

question before us is only whether Nettles’ claim, if

successful, “could potentially affect the duration of . . .

confinement.” Id. (emphasis in original). Although Nettles’

2008 disciplinary violation for threatening to stab a prison

official was not the only, or even the primary, reason the

board denied Nettles parole, expungement of the offense

nonetheless could potentially affect the length of his

confinement. Nettles does not allege that expungement

would have caused the board to grant him parole in 2009.

Rather, he contends that expunging the offense will likely

NETTLES V. GROUNDS 39

accelerate his next parole hearing by changing the

circumstances relevant to his current dangerousness; instead

of his prison record reflecting a threat to murder a

correctional officer in 2008, Nettles’ record will demonstrate

that he has not been involved in a drug or violent offense in

fifteen years. Under these circumstances, “[i]t is certainly at

least possible that [Nettles’] suit would impact the duration of

his confinement,” if the 2008 violation is expunged from his

record. See Docken, 393 F.3d at 1031. Because Nettles has

established a sufficient link between success in his claim and

the duration of his confinement, I would reverse the district

court’s order of dismissal and remand for the court to address

the merits of Nettles’ claim in the first instance.

~

For the foregoing reasons, I respectfully disagree with the

majority that the footnote of dicta in Skinner redefines the

scope of habeas jurisdiction and abrogates our prior decisions

in Bostic and Docken. Although I agree with the majority’s

determination that Santos’s claim may be brought under

§ 2254, I disagree that Nettles petition fails to assert a

cognizable habeas claim. I would therefore reverse and

remand in both cases because Santos and Nettles have each

asserted a cognizable habeas claim under the law of our

circuit. See Docken, 393 F.3d at 1031. I believe the

majority’s conclusion to the contrary exceeds the authority

granted to a three judge panel of this Court.