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. OPINION

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, Senior District Judge, Presiding

Argued and Submitted En Banc March 22, 2016

San Francisco, California

Filed July 26, 2016

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.

Opinion by Judge Ikuta;

Partial Concurrence by Judge Hurwitz;

Dissent by Judge Berzon

2 NETTLES V. GROUNDS

SUMMARY*

Habeas Corpus / Prisoner Civil Rights

The en banc court vacated the district court’s dismissal of

a matter, brought as a habeas corpus petition by a California

state prisoner serving a life sentence, challenging a

disciplinary violation on constitutional grounds and claiming

that the failure to expunge this violation from his record

could affect his eligibility for parole.

The en banc court held that a 42 U.S.C. § 1983 action is

the exclusive vehicle for claims brought by state prisoners

that are not within “the core of habeas corpus.” Preiser v.

Rodriguez, 411 U.S. 475, 487 (1973). In so holding, the en

banc court overruled 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.

The en banc court held that the prisoner’s claim does not

fall within “the core of habeas corpus” because success on the

claim would not necessarily lead to immediate or speedier

release since the expungement of the challenged disciplinary

violation would not necessarily lead to a grant of parole.

The en banc court joined sister circuits in holding 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.

*

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

The panel remanded for further proceedings.

Concurring in part, Judge Hurwitz joined Parts I, II(A),

III, and IV of Judge Ikuta’s opinion. He wrote that Skinner

v. Switzer, 562 U.S. 521 (2011), is an unambiguous

indication of the Supreme Court’s view on the issue in this

case, and that parsing the language or history of 28 U.S.C.

§ 2254 is unnecessary.

Judge Berzon dissented. She wrote that the majority’s

response – that if the prisoner were successful on his claim,

it “would not necessarily lead to his immediate or earlier

release from confinement,” because the parole board could

deny him parole even without considering the disciplinary

proceeding at issue – flouts this court’s normal approach to

alleged violations of procedural rights and is inconsistent

with the statutes and precedents governing petitions for

habeas corpus.

COUNSEL

John P. Balazs (argued), Sacramento, California; Monica

Knox, Assistant Federal Defender; Heather Williams, Federal

Defender; Office of the Federal Defender, Sacramento,

California; for Petitioner-Appellant.

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.

4 NETTLES V. GROUNDS

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 his

record could affect his eligibility for parole. We conclude

that because Nettles’s claim does not fall within the “core of

habeas corpus,” Preiser v. Rodriguez, 411 U.S. 475, 487

(1973), it must be brought, if at all, under 42 U.S.C. § 1983.

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.

NETTLES V. GROUNDS 5

Under California law, prisoners with life terms like

Nettles may not be released before their minimum eligible

parole date (MEPD). Cal. Penal Code § 3041(a)(4). One

year before a prisoner’s MEPD, a panel of the Board of

Parole Hearings will meet with the prisoner and determine if

the prisoner is suitable for parole. Id. § 3041(a)(2). “[A] life

prisoner shall be found unsuitable for and denied parole if in

the judgment of the panel the prisoner will pose an

unreasonable risk of danger to society if released from

prison.” Cal. Code Regs. tit. 15, § 2281(a). In determining

the prisoner’s suitability for parole, the panel must consider

“all relevant” information, id. § 2281(b), including

disciplinary actions received during imprisonment. If the

prisoner is suitable for parole and has reached the MEPD, the

prisoner is entitled to release. Cal. Penal Code § 3041(a).1 If

the panel determines that the prisoner is unsuitable for parole,

the Board of Parole Hearings will schedule a future hearing

that could take place from three to fifteen years after the

previous hearing, as directed by statutory criteria. Id.

§ 3041.5(b)(3). Once every three years, an inmate may

request the board to exercise its discretion to accelerate the

next hearing. Id. § 3041.5(d).

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 be a violation of law or is

1

Before state law changed on January 1, 2016, a prisoner’s post-

conviction credits were a factor in determining the date the prisoner was

entitled to release. Cal. Penal Code § 3041(a) (2015). This is no longer

the case.

6 NETTLES V. GROUNDS

not minor in nature.” Cal. Code Regs. tit. 15, § 3312(a)(3).

Nettles also received numerous citations for lesser types of

misconduct. See id. § 3312(a)(2). At Nettles’s 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. 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

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 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

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

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,” Cal. Code

8 NETTLES V. GROUNDS

Regs. tit. 15, § 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

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.

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

federal court seeking expungement of the February 26, 2008

rules violation report and “restoration of good time,”

presumably referring to the loss of thirty days of post-

conviction credits as a result of the 2008 disciplinary

decision. 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 and so was not cognizable in habeas. 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

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.

NETTLES V. GROUNDS 9

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, 28 U.S.C. § 2254,

and a complaint under the Civil Rights Act of 1871 . . .

42 U.S.C. § 1983.” Muhammad v. Close, 540 U.S. 749, 750

(2004) (per curiam). “Challenges to the validity of any

confinement or to particulars affecting its duration are the

province of habeas corpus; requests for relief turning on

circumstances of confinement may be presented in a § 1983

action.” Id. (internal citation omitted). The Court has long

held that habeas is the exclusive vehicle for claims brought by

state prisoners that fall within the core of habeas, and such

claims may not be brought in a § 1983 action. See, e.g.,

Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005)

(characterizing the Court’s precedents as holding “that a state

prisoner’s § 1983 action is barred (absent prior

invalidation)—no matter the relief sought (damages or

equitable relief), no matter the target of the prisoner’s suit

(state conduct leading to conviction or internal prison

proceedings)—if success in that action would necessarily

demonstrate the invalidity of confinement or its duration”).

Based on our review of the development of the Court’s case

law in this area, we now adopt the correlative rule that a

10 NETTLES V. GROUNDS

§ 1983 action is the exclusive vehicle for claims brought by

state prisoners that are not within the core of 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 (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 it traditionally “has been accepted as the specific

instrument to obtain release from [unlawful] confinement,”

id. at 486. Further, “habeas corpus actions require a

petitioner fully to exhaust state remedies, which § 1983 does

not.” Wilkinson, 544 U.S. at 79 (citing Preiser, 411 U.S. at

490–91). Based on “[t]hese considerations of linguistic

specificity, history, and comity,” the Court concluded that

Congress intended to make “an implicit exception from

§ 1983’s otherwise broad scope for actions that lie ‘within the

core of habeas corpus.’” Id. (quoting Preiser, 411 U.S. at

487). The claims at issue in Preiser, which would have

resulted in immediate release if successful, fell within the

core of habeas corpus and therefore had to be brought, if at

all, in habeas. See id.

NETTLES V. GROUNDS 11

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,

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. 418 U.S. 539, 542–44 (1974). 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. at 554 (emphasis added).

In Heck v. Humphrey, 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.

512 U.S. 477, 478–79 (1994). 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

12 NETTLES V. GROUNDS

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, 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. 520 U.S. 641, 644, 648 (1997). The court later

clarified, in Muhammad v. Close, that such challenges to

disciplinary proceedings are barred by Heck only if the

§ 1983 action would be “seeking a judgment at odds with [the

prisoner’s] conviction or with the State’s calculation of time

to be served.” 540 U.S. at 754–55. If the invalidity of the

disciplinary proceedings, and therefore the restoration of

good-time credits, would not necessarily affect the length of

time to be served, then the claim falls outside the core of

habeas and may be brought in § 1983. See id.4

4

According to the dissent, Balisok held that Heck bars a prisoner from

bringing a § 1983 claim to challenge the procedures used in a disciplinary

hearing, even if the claim would not necessarily affect the prisoner’s

sentence. Dissent at 35–36. But Muhammad rejected this “mistaken

view” that Heck applies to “all suits challenging prison disciplinary

proceedings,” and clarified that Heck applies only to administrative

determinations that “necessarily” have an effect on “the duration of time

to be served.” 540 U.S. at 754–55; see also Wilkerson v. Wheeler,

772 F.3d 834, 840 (9th Cir. 2014) (holding that after Balisok, Muhammad

clarified that Heck does not bar a § 1983 claim that “threatens no

NETTLES V. GROUNDS 13

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 claims appeared again in

Wilkinson v. Dotson, 544 U.S. at 82. 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

consequence for [an inmate’s] conviction or the duration of [his or her

sentence]”).

14 NETTLES V. GROUNDS

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 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 (Scalia, J.,

concurring).

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 (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:

NETTLES V. GROUNDS 15

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

5

While “courts originally confined habeas relief to orders requiring the

petitioner’s unconditional release from custody,” we have recognized that

“[i]n modern practice” courts may “employ a conditional order of release

in appropriate circumstances, which orders the State to release the

petitioner unless the State takes some remedial action, such as to retry (or

resentence) the petitioner.” Harvest v. Castro, 531 F.3d 737, 741 (9th Cir.

2008). Contrary to the dissent, see Dissent at 37, this modern practice is

consistent with the standard for habeas relief noted in Dotson and Skinner,

because “the prisoner who shows his sentencing was unconstitutional is

actually entitled to release, because the judgment pursuant to which he is

16 NETTLES V. GROUNDS

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

prophecy of what the court might hold.’” Managed

Pharmacy Care v. Sebelius, 716 F.3d 1235, 1246 (9th Cir.

2013) (quoting United States v. Montero-Camargo, 208 F.3d

1122, 1132 n.17 (9th Cir. 2000) (en banc)); see also United

States v. Baird, 85 F.3d 450, 453 (9th Cir. 1996) (“Although

the Daniel construction . . . may be dictum, we treat Supreme

Court dicta with due deference, and see no reason not to

apply the Court’s construction in the case at bar.”).

The dissent heavily relies on cases where prisoners in

federal custody brought habeas petitions under 28 U.S.C.

§ 2241 claiming that the Bureau of Prisons acted contrary to

a federal statute that authorized it to shorten the sentence of

a federal prisoner under certain circumstances. Dissent at

33–34, 45–47. See, e.g., Rodriguez v. Copenhaver, — F.3d

—, No. 14-16399, 2016 WL 3003423, at *4 (9th Cir. May 25,

2016); Close v. Thomas, 653 F.3d 970, 973–74 (9th Cir.

2011); Crickon v. Thomas, 579 F.3d 978, 982 (9th Cir. 2009).

None of these cases addressed the scope of habeas relief

available to federal prisoners under § 2241, and therefore they

shed no light on the issue before us. Nor do the Supreme

Court’s recent cases addressing the scope of habeas petitions

confined has been invalidated; the conditional writ serves only to ‘delay

the release . . . in order to provide the State an opportunity to correct the

constitutional violation.’” Dotson, 544 U.S. at 86 (Scalia, J., concurring).

NETTLES V. GROUNDS 17

vis-à-vis § 1983 involve the rights of federal prisoners. See,

e.g., Skinner, 562 U.S. at 527; Dotson, 544 U.S. at 82.

Because the case before us involves a state prisoner’s action

under 28 U.S.C. § 2254, we need not address how the

standard suggested in Skinner and adopted here applies to

relief sought by prisoners in federal custody.6

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

6

Different rules apply to state and federal prisoners seeking relief. “The

general rule is that a motion under 28 U.S.C. § 2255 is the exclusive

means by which a federal prisoner may test the legality of his detention,

and that restrictions on the availability of a § 2255 motion cannot be

avoided through a petition under 28 U.S.C. § 2241.” Stephens v. Herrera,

464 F.3d 895, 897 (9th Cir. 2006) (internal citation omitted). By its terms,

28 U.S.C. § 2255 applies only to prisoners “claiming the right to be

released” upon one of a few enumerated grounds. A federal prisoner may

file a § 2241 petition “if, and only if, the remedy under § 2255 is

inadequate or ineffective to test the legality of his detention” such as when

a prisoner “(1) makes a claim of actual innocence, and (2) has not had an

unobstructed procedural shot at presenting that claim.” Marrero v. Ives,

682 F.3d 1190, 1192 (9th Cir. 2012) (internal quotation marks omitted).

As a further distinction, § 1983 is generally unavailable to federal

prisoners challenging prison conditions, but such prisoners may have

recourse under Bivens v. Six Unknown Named Agents, 403 U.S. 388

(1971) and the Federal Tort Claims Act (FTCA).

18 NETTLES V. GROUNDS

adequate state remedies as a condition precedent to the

invocation of federal judicial relief under those laws” as a

way to further Congress’s policy goal of avoiding

“unnecessary friction between the federal and state court

systems.” 411 U.S. at 489–91. The Court held that it should

respect this congressional intent, id. at 492 n.10, and that “[i]t

would wholly frustrate explicit congressional intent to hold

that the respondents in the present case could evade this

requirement by the simple expedient of putting a different

label on their pleadings,” id. at 489–90.

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 (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 (1971) (per curiam)). But Congress

“enacted § 1997e(a) to reduce the quantity and improve the

quality of prisoner suits” by requiring exhaustion of

prisoners’ § 1983 claims. Id. at 524.7 Congress intended this

7

42 U.S.C. § 1997e(a), provides: “No action shall be brought with

respect to prison conditions under section 1983 of this title, or any other

Federal law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies as are available are

NETTLES V. GROUNDS 19

exhaustion requirement to have a broad scope: “[T]he

PLRA’s exhaustion requirement applies to all inmate suits

about prison life, whether they involve general circumstances

or particular episodes, and whether they allege excessive

force or some other wrong.” Id. at 532.

Congress’s intent that state prisoners satisfy PLRA

requirements for all § 1983 suits about prisoner 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 (2006),

indicating an intent to make these regimes independent and

mutually exclusive.8

exhausted.”

8

The procedural requirements imposed by AEDPA and the PLRA are

distinct in substantial respects. The PLRA attempts to “filter out

nonmeritorious claims,” Jones v. Bock, 549 U.S. 199, 213 (2007), by

requiring judicial screening of prisoner litigation, 28 U.S.C. § 1915(e), and

depriving a prisoner of the right to file in forma pauperis if the prisoner

incurs three “strikes,” defined as dismissals “on the grounds that [the

claim] was frivolous, malicious, or fails to state a claim upon which relief

20 NETTLES V. GROUNDS

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

may be granted,” id. § 1915(g). AEDPA does not have any similar

requirements. AEDPA and the PLRA also impose different exhaustion

requirements. Under AEDPA, a state prisoner must pursue and exhaust

all remedies available in state court before a federal court may entertain

a petition, unless corrective process is unavailable in the state or is

ineffective in protecting the prisoner’s rights. Id. § 2254(b)(1). Under the

PLRA, by contrast, prisoners must exhaust state administrative remedies

by filing a grievance within the state prison system unless administrative

remedies are not “available,” but the plaintiff need not exhaust state

judicial remedies before filing in federal court. Id. § 1997e(a); Woodford,

548 U.S. at 85; McBride v. Lopez, 807 F.3d 982, 986 (9th Cir. 2015).

Furthermore, AEDPA bars second or successive petitions challenging the

same state court judgment, with some narrow exceptions for claims that

were not presented in the prior petition, see 28 U.S.C. § 2244(b), but the

PLRA contains no analogous limitation.

NETTLES V. GROUNDS 21

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),9 but we have reached

inconsistent results in our efforts to delineate more precisely

the claims which may not be brought 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

9

The Fifth, Sixth, Seventh, and Tenth Circuits have reached the same

conclusion. See Luedtke v. Berkebile, 704 F.3d 465, 465–66 (6th Cir.

2013); Glaus v. Anderson, 408 F.3d 382, 386 (7th Cir. 2005); Carson v.

Johnson, 112 F.3d 818, 820–21 (5th Cir. 1997); McIntosh v. U.S. Parole

Comm’n, 115 F.3d 809, 811–12 (10th Cir. 1997). But see Aamer v.

Obama, 742 F.3d 1023, 1031–32 (D.C. Cir. 2014).

22 NETTLES V. GROUNDS

parole review” so long as success on the claims “could

potentially affect the duration of their confinement,” Docken

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

added); see also Bostic v. Carlson, 884 F.2d 1267, 1269 (9th

Cir. 1989) (holding that a prisoner could bring a petition in

habeas to seek relief from various disciplinary 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.” (emphasis added)).

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

This rule will likewise 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

10

The dissent cites to Fifth, Sixth and D.C. Circuit cases holding that

“there is some degree of permissible overlap between § 1983 and habeas,”

Dissent at 43, but each was decided before Skinner suggested a different

standard. Davis is the only out-of-circuit case to date to consider

Skinner’s suggestion regarding the scope of habeas relief.

NETTLES V. GROUNDS 23

mandated, while if the claim challenges any other aspect of

prison life, the prisoner must comply with the PLRA.11

Accordingly, we now resolve the inconsistency in our

case law and adopt the Supreme Court’s suggestion 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, and Bostic v. Carlson, 884 F.2d

1267, to the extent they are inconsistent with this rule.

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, Cal. Penal Code § 3041.5(b)(4), and

would be more likely to give him a favorable parole ruling.12

11

The dissent suggests that this rule deprives petitioners of a remedy for

procedural violations. See Dissent at 33. To the contrary, our holding

channels prisoner claims through the appropriate procedures, rather than

foreclosing relief. Thus, if a state prisoner’s success in challenging a

procedural violation would necessarily result in immediate or speedier

release from custody, the prisoner’s claim would sound in habeas, while

a state prisoner could challenge other procedural violations by bringing an

action under § 1983.

12

Nettles also argued that once granted parole, the panel’s calculation

of the time he must serve before release will necessarily be affected by the

reinstated postconviction credits. But after January 1, 2016, the effective

date of the new law, the panel no longer calculates a release date, making

24 NETTLES V. GROUNDS

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 to a grant of parole.

Under California law, the parole board must consider “[a]ll

relevant, reliable information” in determining suitability for

parole. Cal. Code Regs. tit. 15, § 2281(b). A rules violation

is merely one of the factors shedding light on whether a

prisoner “constitutes a current threat to public safety,” In re

Lawrence, 190 P.3d 535, 553 (Cal. 2008). Because the parole

board has the authority to deny parole “on the basis of any of

the grounds presently available to it,” Ramirez, 334 F.3d at

859, the presence of a disciplinary infraction does not

compel the denial of parole, nor does an absence of an

infraction compel the grant of parole.

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.

this argument no longer relevant. See Cal. Penal Code § 3041(a).

NETTLES V. GROUNDS 25

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 board, Cal. Penal Code

§ 3041.5(d)(1), success on Nettles’s claim would not even

necessarily lead to an earlier parole hearing.

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

(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

26 NETTLES V. GROUNDS

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

habeas corpus action and a prisoner civil rights suit differ in

a variety of respects—such as the proper defendant, filing

fees, the means of collecting them, and restrictions on future

filings—that may make recharacterization impossible or, if

possible, disadvantageous to the prisoner compared to a

dismissal without prejudice of his petition for habeas corpus.”

Robinson, 631 F.3d at 841; see also Glaus, 408 F.3d at 388

(noting that recharacterizing a prisoner’s action as a civil

rights action may make it subject to the PLRA’s three-strikes

rule and different exhaustion requirements, as well as

requiring the complaint to name a different defendant, such

as the individual official responsible for the wrong rather than

the warden).

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 (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

NETTLES V. GROUNDS 27

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.

28 NETTLES V. GROUNDS

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 (1973). But, things

have changed.

In Wilkinson v. Dotson, the Court confirmed that a suit

under42U.S.C. § 1983 “will not lie when a stateprisoner

challenges the fact orduration of his confinement, and seeks

either immediate release from prison, or the shortening of his

term of confinement.” 544 U.S. 74, 79 (2005) (citations and

quotation marks omitted). As in Preiser, the Dotson majority

did not address whether 28 U.S.C. § 2254 habeas corpus

jurisdiction is confined to such challenges, contenting itself

to find that the respondents’ claims fell outside the “implicit

habeas exception” and were cognizable under § 1983. Id. at

82. But, Justice Scalia’s concurrence squarely addressed the

issue now before us. He contended that allowing suits like

the one before us today to proceed under § 2254 “would

require us to broaden the scope of habeas relief beyond

recognition.” Id. at 85 (Scalia, J., concurring). Justice Scalia

perceived a bright-line test for habeas jurisdiction:

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

NETTLES V. GROUNDS 29

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 (2011). That case, likePreiser 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, 125 S. Ct.

1242 (Scalia, J., concurring).

30 NETTLES V. GROUNDS

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, 125 S. Ct. 1242 (majority

opinion) (internal quotation marks omitted);

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

concurring).

Id. at 535 n.13.

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 in Justice

Scalia’s Dotson concurrence that § 2254 relief is limited to

claims that would necessarily spell speedier release,

accelerate future release from custody, or reduce the level of

custody. Nettles does not pose such a claim.

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

NETTLES V. GROUNDS 31

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 confinement,” because the parole board

could deny him parole even without considering the

disciplinary proceeding at issue. Pr. Op. at 25.1 The majority

therefore holds that Nettles cannot seek a writ of habeas

corpus. This response flouts our normal approach to alleged

1

Only some portions of Judge Ikuta’s opinion have the support of a

majority of the en banc court. So it is the majority opinion in some

respects and a plurality opinion in others. For clarity, I cite it in this

dissent as the “Principal Opinion” (“Pr. Op.”).

32 NETTLES V. GROUNDS

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 (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 (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

(1948). The right to an opportunity 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 (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.

NETTLES V. GROUNDS 33

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 9–10

(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.” 28 U.S.C. § 2241(c)(3); see also

28 U.S.C. § 2254(a). We regularly interpret this language to

include prisoners who assert their confinement to be

predicated on the violation of a procedural right, even if the

proceeding in question might have come out the same way

had constitutionally proper procedures been followed. See,

e.g., Dixon v. Williams, 750 F.3d 1027, 1032 (9th Cir. 2014)

(right to due process); United States v. Withers, 638 F.3d

1055, 1063 (9th Cir. 2011) (right to a public trial); Holley v.

Yarborough, 568 F.3d 1091, 1098 (9th Cir. 2009) (right to

confront witnesses); Bonin v. Calderon, 59 F.3d 815, 824 (9th

Cir. 1995) (right to assistance of counsel); Campbell v.

Blodgett, 978 F.2d 1502, 1508 (9th Cir. 1992) (right to be

present during voir dire). The successful invocation of some

procedural rights, like the right to effective assistance of

counsel, may depend on an affirmative showing that the

outcome of the proceeding in question was prejudiced in

some way. See, e.g., Strickland v. Washington, 466 U.S. 668,

693 (1984). But it will almost always be the case that the

34 NETTLES V. GROUNDS

proceeding could have resulted in the same outcome even

absent the alleged defect.

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

post-conviction 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 25; see Rodriguez v. Copenhaver, __ F.3d __ , No. 14-

16399, 2016 WL 3003423 (9th Cir. May 25, 2016). In that

case, Rodriguez contested the BOP’s rejection of his request

to get credit applied to his sentence for time served in state

custody. Id. at *3. In evaluating Rodriguez’s request, the

BOP considered a letter from a judge who had been recused

from Rodriguez’s case. Id. at *3–4. We held that by

incorporating the letter into its decision, the BOP violated

both due process and a federal statute. Id. at *4.

Importantly, Rodriguez did not indicate that Rodriguez

was entitled to have credit applied to his sentence. To the

contrary, we noted that the BOP’s decision was an exercise of

discretion. Id. at *3; see also 18 U.S.C. § 3621(b). As a

result, we simply remanded with directions for the Bureau of

Prisons (BOP) to reconsider Rodriguez’s request anew,

without regard to the judge’s letter. Rodriguez, 2016 WL

3003423, at *4.

NETTLES V. GROUNDS 35

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 (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 (1995), and Edwards v. Balisok, 520 U.S. 641

(1997). In Morales, the petitioner, Morales, brought a habeas

action via 28 U.S.C. § 2254 arguing that a statute violated the

Constitution’s prohibition on ex post facto laws. 514 U.S. at

504. The statute in question meant that Morales was eligible

for parole suitability hearings every three years rather than

each year. Id. at 503.

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 12. In Balisok, the Supreme

Court required the respondent, Balisok, to bring his due

process challenge to the prison’s disciplinary procedures

under the habeas statute, rather than § 1983. 520 U.S. at 648.

Balisok did not dispute the result of his disciplinary hearing,

admitting that the prison likely could revoke his good-time

credit in a procedurally proper hearing. Id. at 644–45,

647–48. However, because Balisok’s procedural challenges

“impl[ied] the invalidity of the punishment imposed,” he was

required to proceed in habeas, even though the validity of his

underlying judgment of conviction was not at stake, and even

though success on his claim would not necessarily have

resulted in speedier release. Id. at 648. The majority’s

standard apparently would leave similarly situated plaintiffs

36 NETTLES V. GROUNDS

without a remedy, barring them from seeking relief using the

only route the Supreme Court left open.2

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,” 28 U.S.C. §§ 2241(c)(3), 2254(a). To the

contrary, the cases just discussed suggest that a petitioner

meets this statutory language and may seek a writ of habeas

corpus if they are (1) in custody, and (2) their custody “could

potentially” end or be shortened if an unconstitutional

procedure were voided and a new proceeding ordered. See

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

(emphasis omitted).3

2

Each of these examples counters the suggestion by both the majority

and Judge Hurwitz’s concurrence that there exists “no case . . . 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.” Pr. Op. at 15 (quoting Skinner v. Switzer, 562 U.S. 521, 534

(2011)) (internal quotation marks and citation omitted); Concurring Op.

at 29–30 (same).

3

Again, it is possible that habeas relief could be denied in a case such

as this one on lack of prejudice grounds, if the prejudice standard

appropriate to the circumstances were not met. The present issue,

however, is whether the petitioner was entitled to bring a habeas petition

at all.

NETTLES V. GROUNDS 37

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 24. Frequently, federal courts

allow the prisoner to remain confined while the relevant

proceeding is redone. See, e.g., Rodriguez, 2016 WL

3003423, at *4. These remedies are consistent with

Congress’s directive that courts sitting in habeas “shall . . .

dispose of the matter as law and justice require.” 28 U.S.C.

§ 2243. Consonant with this language, the Supreme Court

has rejected “the notion that immediate physical release [is]

the only remedy under the federal writ of habeas corpus.”

Peyton v. Rowe, 391 U.S. 54, 67 (1968). Federal courts have

“broad discretion in conditioning a judgment granting habeas

relief,” Hilton v. Braunskill, 481 U.S. 770, 775 (1987), and,

as a practical matter, the granting of a writ often does not

result in either “immediate” or “speedier” release. Pr. Op. at

24. The majority opinion thus declares a standard that is

inconsistent with both the language of §§ 2241 and 2254 and

our historical treatment of petitions for habeas corpus.

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 17. But today’s opinion

misreads the pertinent cases and the Supreme Court’s

jurisprudence, and it contorts the relationship between habeas

and § 1983 that the Supreme Court explicated in Preiser v.

Rodriguez, 411 U.S. 475 (1973), and its progeny.

38 NETTLES V. GROUNDS

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 (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 (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

jurisdiction is confined to what it described as the “core” of

habeas; had it meant to do so, its references to the “core” of

habeas corpus, as distinct from the overall reach of the writ,

would have been pointless. Preiser reinforced the limited

nature of its holding by cautioning that the exact scope of the

overlap between § 1983 and habeas was “not before us,” id.;

had Preiser meant the “core of habeas corpus” to equate with

the entire breadth of the writ, that caution would have been

unnecessary. And as Justice Thomas noted in his dissent in

Skinner v. Switzer, 562 U.S. 521, 538 (2011), the Court “has

NETTLES V. GROUNDS 39

never purported to fully circumscribe the boundaries of

§ 1983,” as distinct from habeas corpus.

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

(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 at all, even as to asserted violations of

constitutionally required procedures that, if corrected, could

— but will not necessarily — result in earlier release. Pr. Op.

at 16. This reading of the precedents relies primarily on three

Supreme Court cases: Muhammad v. Close, 540 U.S. 749

4

Section 1983 was enacted in the Civil Rights Act of 1871 and has

existed in largely the same form to this day. See Preiser, 411 U.S. at 476;

Civil Rights Act of 1871, ch. 22, 17 Stat. 13 (1871). Although there was

a federal habeas statute before 1871, it was initially much more limited

than the modern statute and has been amended many times since. See

generally Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1042–93

(1970) (providing an overview of the history of federal habeas corpus).

These amendments 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 (1968) (discussing the 1966 amendment

providing for “release from custody or other remedy”); see also 28 U.S.C.

§ 2243 (providing for disposition of habeas cases “as law and justice

require”).

40 NETTLES V. GROUNDS

(2004), Dotson, 544 U.S. at 74, and Skinner, 562 U.S. at 521.

None of these cases focuses on limitations on habeas claims.

Instead, each of these cases deals with limitations on actions

brought under § 1983. See Skinner, 562 U.S. at 534; Dotson,

544 U.S. at 81; Muhammad, 540 U.S. at 754–55.

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 13; 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 prehearing action Muhammad called in

question.” 540 U.S. at 754. In other words, there was not

even the possibility of speedier release if Muhammad

prevailed. Muhammad sought only compensatory and

punitive damages for an alleged wrongful disciplinary action.

Id. at 753. Muhammad thus does not suggest anything at all

about a case in which the duration of a prisoner’s

confinement might be affected by a prisoner’s claim.

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

NETTLES V. GROUNDS 41

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 (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

(2009) (emphasis added). And throughout these cases, the

Court has asked consistently whether a claim “lies at the core

42 NETTLES V. GROUNDS

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).

Perhaps the phrase “if at all” could be read to suggest that

such claims may only be brought under § 1983, and therefore

may not be brought under habeas. But this language could

also be read to refer simply to whether the claim may be

brought at all — i.e., whether the claim is otherwise viable.

So, for example, a claim cannot be brought “at all” under

§ 1983 if the statute of limitations has run, or if the

procedural requirements of the PLRA have not been complied

with. Cf. Dotson, 544 U.S. at 87–88 (Scalia, J., concurring)

(enunciating a similar caveat). On that understanding, the

Skinner sentence means that otherwise viable claims not at

“the core of habeas corpus” may be brought under § 1983 —

not that they must be.

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

NETTLES V. GROUNDS 43

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 17–18. 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), 42 U.S.C. § 1997e et seq., and another set for habeas

petitions brought pursuant to the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214,

44 NETTLES V. GROUNDS

Congress indicated its intent to have the two statutes govern

entirely separate regimes. Pr. Op. at 18–19.

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 all

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 precedents

when it legislates. Edelman v. Lynchburg Coll., 535 U.S.

106, 117 n.13 (2002) (quoting N. Star Steel Co. v. Thomas,

515 U.S. 29, 34 (1995)). If Congress had intended to weigh

in on the longstanding discussion concerning the relationship

between habeas and § 1983 via the PLRA, AEDPA, or both,

it would surely have done so explicitly, rather than relying on

judges’ ability to read tea leaves. Absent any provision in

either statute addressing the question, the creation of different

procedural requirements for the two different claims cannot

be read to limit the substance of the habeas remedy.

More broadly, the PLRA’s restrictions on prisoner suits

demonstrate the hazards of limiting habeas corpus due to

NETTLES V. GROUNDS 45

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 (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. 42 U.S.C. § 1983; see,

e.g., Ibrahim v. Dep’t of Homeland Sec., 538 F.3d 1250, 1257

(9th Cir. 2008).

The federal habeas statute, 28 U.S.C. § 2241 et seq., is the

basic statute empowering courts to hear petitions by both

federal and state prisoners.5 Notably, we have heard many

5

Section 2241(a) provides that “[w]rits of habeas corpus may be granted

by the Supreme Court, any justice thereof, the district courts and any

circuit judge within their respective jurisdictions.” Section 2241(c)

specifies five categories of prisoners eligible for federal habeas. See

46 NETTLES V. GROUNDS

claims by federal prisoners petitioning under § 2241 where

success “would not necessarily lead to [their] immediate or

earlier release from confinement.” Pr. Op. at 25. In Crickon

v. Thomas, 579 F.3d 978, 982 (9th Cir. 2009), for instance,

Jerry Crickon, a federal prisoner, brought a habeas petition

challenging the BOP’s determination that he was

categorically ineligible for an early release incentive program

due to his prior conviction. We held the BOP’s failure to

articulate its reasoning was a violation of the Administrative

Procedure Act, and remanded for the BOP to reconsider

Crickon’s eligibility. Id. at 988–89. Just as in Dotson,

“[s]uccess for [Crickon] . . . mean[t] at most new eligibility

review.” 544 U.S. at 82. But that was no obstacle to

Crickon’s habeas petition.

In Close v. Thomas, 653 F.3d 970 (9th Cir. 2011), 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

28 U.S.C. § 2241(c)(1)–(5). The important section for present purposes

is 2241(c)(3), which makes available writs of habeas corpus to both

federal and state prisoners “in custody in violation of the Constitution or

laws or treaties of the United States.” Sections 2244, 2254, and 2255 spell

out some substantive differences in the writ’s scope for state and federal

prisoners, as well as differences in the procedures required for state and

federal prisoners to obtain the writ. Those differences are not relevant to

the case at hand.

NETTLES V. GROUNDS 47

Close’s claim was allowed to proceed via habeas petition

nonetheless. See also Rodriguez, 2016 WL 3003423, at 4.

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 longstanding. 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 519, 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 § 2241(c) for federal prisoners should differ from the

reach of the same statute for state prisoners.

***

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

48 NETTLES V. GROUNDS

majority opinion. In particular, it does not rely on the

“probabilistic analysis” that opinion rejects. Pr. Op. at 22.

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, 423 F.3d at 1053, and federal habeas courts are

often required to defer to the results of these state

proceedings. See 28 U.S.C. § 2254(d).

Notably, the rule adopted by the majority will not “give

needed clarity to state prisoners.” Pr. Op. at 22. 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 announced rule would seem to sweep up a

significant number of claims within its reach, creating a trap

for unwary prisoners who have not satisfied the PLRA’s

distinct requirements. See 42 U.S.C. § 1997e.

In short, the majority’s standard, inconsistent with statute

and precedent, will unnecessarily create problems for years

to come. I therefore dissent.