F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

D A M O U S D. N E T T L E S , Petitioner-Appellant

,

v.

R A N D Y G R O U N D S , W arden, R espondent-Appellee. No. 12-16935

D.C. No. 1:11-cv-01201-AW I -J L T

OPI NI ON

A ppeal from the United States District Court for the Eastern District of California Anthony W . I shii, Senior District J udg e, Presiding

Arg ued and Submitted En B anc March 22, 2016

San F rancisco, California

F iled J uly 26, 2016

B efore: Sidney

R. Thomas, Chief J udg e and W illiam A. F letcher, Mars ha S. B e rz on, J o hnnie B

. Rawlinson, Richard R. Clifton, Consuelo M. Callahan, Sandra S. I kuta, N . Randy Smith, Mary

H. Murg uia, J acqueline H. Ng uy en and Andrew D. Hurwitz

, Circuit J udg es.

Opinion by

J udg e I k uta; Partial Concurrence by J udg e Hurwitz ; Dissent by J udg e B erz onN E T T L E S V

. G R O U N D S 2

SUMMARY *

Habeas Corpus / P risoner Civil Rights

The en banc court vacated the d istrict court’s dismissal o f a matter, broug ht as a habeas corpus petition by a California
state prisoner s e r v ing a life sentence, challeng ing a disciplinary v iolation on c o nstitutional g rounds and claiming
t h a t the failure to ex pung e this violation from his r ec o r d could affect his elig ibility for parole.

The en banc court h eld that a 42 U.S.C. § 1983 action is the e x c l u s i v e vehicle for claims broug ht by state prisoners th a t ar e not within “the core o f habeas corpus.” Preiser v

. R o d r i g uez , 411 U .S. 475, 4 87 (1973). I n so holding

, the e n banc court overruled Docken v

. Chase

, 39 3 F. 3 d 1024 (9th Cir. 2004), and Bostic v. Carlson

, 884 F .2d 126 7 ( 9th Cir. 1989), to the ex tent they

are inconsistent with this rule.

The en banc court held that the prisoner’s claim does not fall within “the core of habeas c orpus” because success on the claim would not necessarily lead to immediate or s p ee d i er release since the ex pung ement of the challeng ed disciplinary violation would not necessarily lead to a g rant of parole.

The e n banc court joined sister circui t s i n holding that a district court may con s t r u e a petition for habeas corpus to plead a cause of act i o n u nder § 1983 after notify ing a nd obtaining informed consent from the prisoner.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.N E T T L E S V

. G R O U N D S 3

The panel remanded for further proceeding s.

Concurring in part, J udg e H urwitz joined Parts I
, I I (A), I I I
, a n d I V of J udg e I kuta’s opinion. He wrote that Skinner

v. Switzer
, 5 62 U.S. 521 (2 0 1 1 )

, is an unambig uous indication of the Supr eme Court’s view on the issue in this
case, and that pars i n g t he lang uag e or h istory of 28 U .S.C. § 2254 is unnecessary

.

J udg e B erz on dissented. She wrote tha t the majority ’s
response – that if the prisoner were successful o n h is c laim, it “would not necessarily lead to h is immediat e or earlier release from confinement,” becau s e the parole board could deny him parole even without cons i dering the disciplinary proceed i n g a t issue – f

louts this court’s normal approach to alleg ed violations of procedural rig h ts and is inco n s i s t ent with the statutes and p recedents governing petitions for habeas corpus.

COUNSEL

J ohn P. B alaz s ( a rg ued), Sacramento, California; Monica Knox
, A ssistant F ederal Defender; H e a t h e r W illiams, F ederal Defender; Office of the F ederal Defender, Sacramento, California; for Petitioner-Appellant.

Phillip J

. L indsa y ( arg ued), Supervising Deputy Attorney General; J ennifer A

. N eill, Senior Assistant Attorney General; Kamala D. Harris, Attorney G e neral of California; Office of the Attorney General, Sacramento, California; for Respondent-Appellee.N E T T L E S V

. G R O U N D S 4

OP INION

I KUTA, Circuit J udg e:

Damous Nettles, a p risoner serving a life sentence in California prison, appeals the district court’s dismissal of his habeas petition for lack of jurisdict i o n

. The petition challeng ed a disciplinary violation on constitutional g rounds and claimed that the failure to ex pung e this violation from his record could affect his elig ibility for parole. W e conclude that because Nettles’s claim does not fall within the “ core o f habeas c o r

p u s,” Preiser v

. Rodriguez

, 411 U.S. 475, 487 (1973), it must be broug ht, if at all, under 42 U.S.C. § 1983.

I

I n 1990, Nettles was convicted in California of attempted first deg ree murder with the use of a f i r e arm a nd other offenses. The victim w as a woman who had filed a complaint
ag ainst Nettles’s brother. I n order to pr e v ent her from testify ing

, Nettles took the victim down an alley

, ordered her onto her hands and knees, and told her “You’re not g oing to testify ag a inst my brother

. I ’m g oing to kill y ou.” Nettles then shot h er twic e in the left ear and left her in the alley

. Th e v i ctim did n o t die, but was seriously injured a nd disfig ured.

Nettles was convicted for attempted murder a n d dissuading and conspiring to dissuade a witness from attending o r g iving testimony at trial. He was sentenced to prison for a determinate term of twelve y ears and a life term with the possibility o f

parole.N E T T L E S V

. G R O U N D S 5

Under California law, prisoners with life terms like Nettles may not be re l eased before their minimum elig ible parole date (MEPD )

. Cal. Penal Code § 3041(a)(4). One
y ear before a prisoner’s MEPD, a panel of the B oar d o f Parole Hearing s will meet with the prisoner and determine if the prisoner is suitable for p arole. Id. § 3041(a)(2). “[ A ] life prisoner shall be found unsuitable for and denied p arole if in the judg ment of the panel the pri s o n er will pose an unreasonable risk of dang e r to society if released from prison.” Cal. Code Reg s. tit. 1 5, § 2281(a). I n determ i n ing the prisone r ’ s suitability for parole, the panel must consider “all relevant” information, id. § 2281 (b), including disciplinary actions received during imprison m e n t. I f the prisoner is suitable for parole and has r eached the MEPD, the prisoner is entitled to release. Cal. Penal Code § 3041(a). 1 I f the p a nel d etermines that the prisoner is unsuitable f or parole, the B o ard of Parole Hearing s will schedule a fut ure h earing that could take place from three to fifteen y ears a fter the previous hearing

, as directed by statu t o r y criteria. Id. § 3041.5(b)(3). Once every three y ears, an inmate may request the b oard to ex ercise its discretion t o accelerate the

nex t hearing

. Id. § 3041.5(d).

An initial p a r ole consideration h earing for Nettles was held in 2004 after the pr e s iding parole commissioner determined t h a t Nettles’ MEPD was October 19, 2005. B efore that hearing

, p rison staff had issued some thirty -nine rules v iolations reports to Nettles. T hese reports are issued for misconduct that “is believed to be a v iolation of law or is

1 B ef o re state law ch an g ed o n J an ua r y 1
, 2 0 1 6
, a p riso n er’ s p o stco n v ictio n

cred its w ere a f

acto r in d eterm in in g th e d ate th e p riso n er w as

en titled to release. Cal. P en al Co de § 3 0 4 1 (a) (2 0 1 5 ). T h is is n o lo n g er th e case.N E T T L E S V

. G R O U N D S 6

n o t minor in n ature.” Cal. Code Reg s. tit. 15, § 3312(a)( 3 ). Nettles also r e ceived numerous citations for lesser ty p es o f misconduct. See id. § 3312(a)(2). At Nettles’s initial parole hearing in 2004, the B oard of Prison T erms (now the B oard of Parole Hearing s, or B oard) 2 d e e m ed Nettles to be unsuitable for parole. I t scheduled the nex t p arole suitability hearing for 2006, but the date was postponed several times.

After 2004, N ettles received seven a dditional rules violations r e ports. On F ebruary 26, 2 008, staff issued Nettles

a rules v io l a t i o n report for threatening to stab a corrections officer. After an investig ation of the incident and a hearing

, Nettles was found g

uilty and g iven a four-month term in the
seg reg ated housing unit. He also lost thirty day s of postconviction credit.

On J uly 30, 2009, the B oard c onvened a se co n d p a role suitability hearing fo r N e t t l es. At the hearing

, the presiding commissioner first described the facts o f Nettl e s ’ s crime o f conviction, characteriz ing it as “one of the most atrocious a nd cruel acts I ’ve read” and stating th at N ettles’s motive was “r i diculously heinous.” The commissioner then reviewed Nettles’s prior criminal history

. Nettles had a long string o f convictions beg inning at ag e seven t e e n a nd h ad been in a nd
out of prison for o ffenses including possess i o n o f drug s, assault with a d eadly weapon, battery on a peace o f ficer, a nd robbery

. Nettles was on parole f o r t h e robbery conviction when he committed the attempted m u r d e r for which he was sentenced to life imprisonment. The commissi o n e r stated that

2 A t t h e t im e o f th e h earin g , th e B o ard w as ref erred to as th e B o ard of P riso n T erm s

. T h is en tity w as rep laced b y th e B o ard o f P aro le Hearin g s in 2 0 0 5

. S ee Cal. Go v ’ t Co d e § 1 28 3 8.4

.N E T T L E S V

. G R O U N D S 7

Nettles’s leng thy cr i m i n al history illustrated his inability to learn from prior incarcerations.

The commissioner nex t ex plained the hearing panel’s

concerns about Nettles’s mental state and attitude about t he crime. I n the hearing panel’s v iew, Nettles’s letter to the victim did not ex press true remorse. F urther, Nettles had not taken responsibility for his conduct and l a c k ed insig h t that would enable him to c hang e his behavior. The commissioner discussed a May 2007 psy ch o l o g ical report, which g ave Nettles “a rating of overall moderate likelihood to become involved in a violent offense i f re l eased.” F inally

, the commi s s i oner stated that Nettles was arg umentative a nd stubborn, “challeng e[ d] authority at every g iv e n o p p o r t u nity

, ” and refused to restrain himself, as evidenced b y his numerous rules violations. The c ommissioner noted the forty

- six rules violation reports that had been issued to Nettles while he was in prison. Nettles “continued to display nega t i ve behavior while incarcerated,” and as a r esult was p laced in seg reg ated housing

. Moreover, Nettles h ad not tak e n any sig nificant steps to g ain skills to function outside o f priso n. Ne v ertheless, a deputy commissioner noted some positive steps Nettles h ad taken, in c l u d i ng a slig ht reduction in the number of rules v iolations reports issued to Nettles in recent
y ears.

The panel of the B oard of Parole Hearing s concluded that Nettles w as unsuitable for parole because he “ still pose[ d] an unreasonable r i s k of dang e r if released from prison.” This finding was “based on weig hing the considerations provided in the California Code of Reg ulations.” As authoriz ed by the
reg ulations, the commissioner ma d e recommendations
reg arding “what steps may be undertak e n t o enhance the possibility of a g rant of parole at a future hearing ,” Cal. CodeN E T T L E S V

. G R O U N D S 8

Reg s. tit. 15, § 2304, telling N ettles that “[ f] or nex t time, y ou certainly need to become and remain disciplinary free.”

On J anuary 23, 2009, Nettles filed a habeas petition in the
state trial court claiming

, in relevant part, that the 2008 rules violation r e p o r t was illeg al and that the disciplinary proceeding s held in connection w ith the 2008 rules violation report violated his due process rig hts. The court denied the petition, concluding that Nettles failed to ex h au st his administrati v e remedies concerning these claims. 3 The Ca l i fo rnia Court of Appeal and California Supreme Court then summarily

denied the petition.

On J une 1 0
, 2 011, Nettles filed a habeas petition in federal court seeking ex pung ement of the F ebruary 26, 2008 rules violation report and “ r e s toration of g ood time,” presumably referring to the loss o f t h irty day s of postconviction credits as a result of the 2008 disciplinary decision. After being o rdered to respond, the state moved to dismiss the petition, a

rg uing that the court lacked jurisdiction
t o e ntertain the petition because the 2008 disciplin a r y decision d id not impact the fact or duration of Nettles’s confinement and so w as n o t cog niz able in h a b e a s

. Nettles opposed the motion, arg uing that the disciplinary decision impacted the duration of his confinement because it delay ed his parole h e aring a

nd constituted g rounds for future denial of parole.

The district c o u rt d ismissed Nettles’s petition, holding that he c ould not show that ex pung ement of the 20 0 8 r u l e s

3 A s th e s tate a c k n o w l ed g es, i t d id n o t arg u e to th e d istrict co u rt th at Nettles’ s claim w as pro ced u rally b arred

. No r d o es th e state raise t h is issu e

o n ap p eal. T h eref

o re, w e d o n o t ad d ress it.N E T T L E S V

. G R O U N D S 9

v iolation report was likely to accelerate his elig ibility f o r parole. Nettles timely appealed the district court’s decision.

W e review de novo a di strict court’s decision to deny a petition for habeas corpus. B ailey v. Hill

, 599 F

. 3d 976, 978 (9th Cir. 2010). W e a lso review de novo a district court’s determination that it does not have jurisdiction over a h abeas corpus petition. Id.

I I

The Supreme Court has recog niz ed that “ [ f] ederal law
opens two main avenues to relief o n complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a c omplaint under the C i v i l R ig hts A ct of 1871

. . . 42 U.S.C. § 1983.” Muhammad v. Close

, 540 U.S. 749, 750 (2004) (per curiam). “Challeng e s to the validity o f any confinement or to particulars affecting its duration ar e t he province of h abeas corpus; r equests fo r relief turning on circumstances of confinement may be p r e s ented in a § 1983 action.” Id. (internal citation omitted). T h e Court has long held that habeas is the e x clusive vehicle for claims broug ht b y state prisoners that fall wi thin the core of habeas, and such claims may not be broug ht in a § 1983 actio n

. S e e , e.g. , W ilkinson v. Dotson
, 5 4 4 U .S. 74, 81–82 (2005) (characteriz ing the Court’s precedents as holding “ that a state prisoner’s § 1983 action is bar r e d (absent prior invalidation)—no matter the relief soug ht (damag es o r equitable relief), no matter the ta r ge t o f the prisoner’s suit (state conduct leading to conviction or in t e rnal prison proceeding s)— if suc c e s s in that action would necessarily demonstrate the invalidity of c onfinement o r its duration”). B ased on o ur review of the development of the Court’s case law in this area, we now a d o p t the c o rrelative rule that aN E T T L E S V

. G R O U N D S 10

§ 1983 action is t h e e x c lusive vehicle for claims broug ht b y state prisoners that are not within the core of habeas corpus.

A

The Supreme Court f

irst addressed the scope o f § 1983 vis-a-vis the scope of h a

b eas in the leading case of Preiser v

. Rodriguez

, 411 U .S. 475 (1973). I n Preise r , state prisoners who had lost g ood-time credits as a result of dis c iplinary proceeding s broug ht a

n a ction under § 1983 for restoration o f the credits o n the g round that the p roceeding s vi o l a t e d their due process rig hts. Id. at 476–77. The p risoners would have been entitled to immediate release from prison if their g oodtime credits had been restored, and the Court therefore concluded that h abeas was t he ex clusive remedy for these claims. Id. at 500. Althoug h “the literal terms o f § 1 9 8 3 mig ht seem to cover” claims that a p r isoner’s confinement violated the Constitution, id

. at 489, t h e lang uag e of the habeas statute is more specific, and the writ’s history makes clear that it traditionally “has been accepted as the s p e c i fi c instrument to obtain release from [ un l awful] confinement,” id. at 486. Fu rther, “habeas corpus actions require a petitioner fully to e x haust state remedies, which § 1983 does not.” W ilkinson

, 5 4 4 U .S. at 79 (citing Preiser
, 411 U.S. at 490–91). B ased o n “ [ t] hese considerations of ling uistic specificity

, history

, an d comity ,” the Court concluded that Cong r ess intended to make “an implicit ex ception from § 1983’s otherwise broad scope for actions that lie ‘within the

core of habe a s corpus.’” I d. (quoting Preiser
, 411 U .S. at 487). T he c laims at issue in Preiser
, whi c h w ould have resulted in immediate release if successful, fe l l w ithin the

core of habeas corpus and therefore had to b e broug h t, if at all, in habeas. See id.N E T T L E S V

. G R O U N D S 11

I n a series of cases after Preiser
, the Supreme Cou r t disting uished b etween 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 broug h t only in a habeas petition, and w hich claims fell outside that c ore a nd could be broug ht in a § 1983 action. I n W olff v. McDonnell

, the Court considere d a § 1 983 class action broug ht by state prisoners challeng ing prison rules, practices, and procedures and seeking restoration of g ood-time credits, injunctive relief, and damag es. 418 U .S. 539, 542–44 (1974). The Court h eld that the plaintiffs’ claims for restoration of g ood-time credits

were in the core o f habeas and therefore outside the scope o f § 1983. I d. at 554. B y contrast, c laims challeng ing a p rison’s

“ procedures for depriving pr i s o n e r s o f g ood-time credits” a nd seeking damag es or a prospective injunction—claims which would not necessarily lead to an ea r lier release—could be broug ht in a § 1983 action. I d. at 554 (emphasis added).

I n Heck v. Humphrey

, a state p risoner broug ht a § 1983 action for compensatory and punitive money d amag es ag ainst
state officials who had alleg e dly eng ag ed in unconstitutional procedures in their investig ation a n d handling of evidence. 512 U.S. 477, 478–79 (1994). Analog iz ing the priso n e r ’s § 1983 action to the common-law cause o f action for

m a l i c ious prosecution, id. at 4 84, the Court held that a plaintiff could not b r i n g a § 1 983 action “that necessarily require[ d] the plaintiff to prove the u nlawful n ess of his conviction or confinement,” id. at 4 86. To bri n g s u c h an action, the p l a i n t i ff would f irst have to prove that the conviction or se n t ence was eliminated, including “by a federal court’s issuance of a writ of habeas corpus.” Id. at 486–87. B y contrast, an action that, “even if successful, will
not demonstrate the inval i d i t y o f any outstanding criminal judg ment” falls within § 1983’s scope. Id. at 487. T h i sN E T T L E S V

. G R O U N D S 12

favorable termination rule polices “the intersection of the two most fertile sources of federal-court p risoner litig atio n— [ § 1983]
, a

nd the federal h abeas corpus statute,” id. at 480, b y

en s u ring that a court cannot address a § 1983 claim if doing

so would require it to first resolve a c laim that falls w ithin the core of habeas corpus.

I n Edwards v. Balisok

, t h e C ourt held that a state prisoner’s challeng e under § 1983 that “would necessarily imply the in v a l idity of the d isciplinary h earing and the resulting [ deprivation of g ood-time credits] ” f ell within habeas’ s e x clusive domain and w as barred by the rule in Heck

, while a claim s e e king an injunction b arring future unconstitutional procedures was within the s cope of § 1983 action. 520 U.S. 641, 644, 648 (1997). The court later clarified, in M

uhammad v. Clos e , t h a t such challeng es to disciplinary proceeding s are barred by Heck only if the § 1983 action would be “seeking a judg ment at odds with [ the prisoner’s] conviction o r with the State’s calculation of time
to be served.” 540 U.S. at 754–55. I f the inv a l i d i t y o f the disciplinary p roceeding s, and therefo r e the restoration o f
g ood-time credits, would not necessarily affect the leng

th o f time to be served, then the cl a i m falls outside the core o f habeas and may b e broug ht in § 1983. See id. 4

4 A cco rd in g to th e d issen t, Ba liso k h eld th at Heck b ars a p riso n er f

ro m b rin g in g a § 19 8 3 claim t o ch allen g e th e p ro ced u res u sed in a d iscip lin ary h ear in g , ev en if th e claim w o u ld n o t n ecessarily af f ect th e priso n er’ s

sen ten ce. Dissen t at 3 5

– 3 6

. B u t Mu h amma d rej ected th is “ m istak en

v iew ” th at Heck ap p lies to “ all su its ch allen g in g p r i so n d iscip lin ary p ro ceed in g s,” an d clarif ied th at Heck ap p lies o n ly to ad m in istrativ e d eterm in atio n s th at “ n ecessarily ” h av e an ef f ect o n “ th e d u ratio n

o f tim e to be s e r v e d.” 5 4 0 U.S. at 7 54

– 55 ; see a lso W ilkerso n v. W

h eeler

, 7 7 2 F.3 d 8 3 4
, 84 0 (9 th Cir. 2 0 1 4 ) (h old in g t h at af ter Ba liso k

, Mu h a mma d

c l a r i fi e d th at Heck d o es n o t b ar a § 1 9 8 3 claim th at “ th reaten s n oN E T T L E S V

. G R O U N D S 13

I n this series of cases, the Court made clear that h abeas is the ex c lusive vehicle for claims b r o u gh t by state prisoners that fa l l w i t h i n the core of habeas and that such c laims may not be broug ht u nder § 1 9 83, b ut the Court did not have occasion to address the que s t i o n whether § 1 983 was the

ex c lusive vehicle f

or claims outside the core of h ab e a s

. I n subsequent cases, the Court beg a n sug g esting that § 1983 was the sole remedy for such c l a i ms. See, e.g. , Muhammad

, 540 U.S. a t 7 54–55. I n Muhammad

, the Supreme Court limited the applicability o f H e c k b y holding that a state p r i s o n e r wa s e n t i t l e d t o c h a l l e n g e a d m i n i s t r a t i v e determinations that di d n ot “raise any implication about the validity o f the underly ing conviction” or “necessarily ” affect “the duration of time to be served” under § 1983 because such a challeng e “ raised no c laim on which habeas relief could have been g ranted on any recog niz ed theory .” I d

. I n other w ords, Muhammad sug g ested, w ithout holding

, that the
scope of habeas is limited to claims in the core of habeas a nd does not ex tend to a claim that does not necessarily challeng e the validity o r duration of the u nderly ing c o nviction o r sentence.

This sug g estion that § 1 9 8 3 and habeas are mutually

e x clusive vehicles f

or prisoner claims appeared ag ain i n W ilkinson v. Dotson
, 544 U.S. at 82

. I n Dotson
, state prisoners broug ht a § 1983 actio n t o ch alleng e the state’s practice of apply ing n ew parole procedures retroactively

. Id.
at 7 6

– 7 7. L ike earlier cases that had d isting uished b etween

s tate prisoner claims that were in the “core of habeas,” a n d thus could be broug ht only i n a habeas petition, and those which c ould be broug ht in a § 1983 action, Dotson concluded

co n seq u en ce f

o r [ a n i n m a t e’ s] co n v ictio n o r th e d u ratio n o f [h is o r h er

sen ten ce]”).N E T T L E S V

. G R O U N D S 14

that habeas w as the ex clusive vehicle for state prisoner c laims where “success in that action would necessarily demonstrate the invalidity o f confinement or its d uration.” Id. at 82. B ut

a § 1983 action would lie where success on a claim m e a n s only that a prisoner will b e elig ible for parole review, “which
at most will speed consideration of a new parole application.” Id

. I n rejecting the dissent’s arg ument that habeas was available for ch a l l e n g es to parole procedures and therefore provided the ex clusive vehicle for them, the Court sug g ested that h ab eas was available only f or claims that seek “invalidation (in whole or in part) of the judg ment authoriz ing the prisoner’s confinement.” Id. at 83. The

c oncurring opinion in D otson picked u p this sug g estion that habeas was a vailable only for claims in the core of h abea s , stating that it “would utterly sever the writ from its c ommonlaw roots” to hold that “the habeas statute authoriz e s federal
courts to order relief that neit h e r t erminates custody

, accelerates the future d ate of relea s e from custody

, nor

r educes the level of custody .” I d. at 86 (Scal i a , J

. , concurring ).

Dotson ’s sug g e stion that a § 1983 action is the ex clusive vehicle for state prisoner c l a i m s that a re not within the core of habeas was echoed more strong ly in the Supreme Court’s
most r ecent p ronouncement 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 broug ht a f

ederal action for injunctive relief u nder § 19 83, alleg ing a due process v iolation. Id. at 5 29. The district court dismissed the action on the g round that “postco n viction

r e q uests for D NA evidence are c og niz able only in hab e a s corpus, not u n der § 1983. ” I d. The Court disag reed a nd indicated that the correct analy sis w as the ex act opposite:N E T T L E S V

. G R O U N D S 15

because an action for DNA testing was not within the core o f habeas, it could be broug ht only i n § 1983. I d. at 533–34, 535 n.13. I n reachin g t h i s conclusion, the Court relied first

on the D otson concurrence and its indication that habeas was

a v a ilable only for c laims in the core of habeas corpus. “ I t suffices to point out that [ the state] has found no case, nor has the dissent, in which the Court has r ecog niz ed habeas as the sole remedy

, or even a

n available one, w here the relief soug ht would ‘neithe r terminat[ e] custody

, accelerat[ e] the future d a t e o f release from custody

, nor reduc[ e] the level o f custody .’” I

d. at 534 (quoting D otson , 544 U.S. at 8 6 (Scalia, J

. , concurring )). Second, rejecting the state’s arg ument that

a claim for D N A t e s t ing lay “at the c ore” of a criminal proceeding and had to be broug ht in habeas, the Court instead characteriz ed its prior decision in D otson as declaring “in no uncertain terms, that when a p r isoner’s claim would not necessarily spell s p e e dier r elease, that c laim does not lie at “the core of h abeas corpus,” a n d may be broug ht, if at all, under § 1983.” Id. at 535 n.13 (inter n a l q u o t a tion marks omitted). Skinner also alluded to the ex istence of a f irm line between habeas and § 1983, noting that the state’s arg ument “cannot be reconciled with the li n e o u r precedent currently draws” between habeas and § 1983, a n d sug g ested that the core of habeas defines the contours of that line. See id. 5

5 W h ile “ co u rts o rig in ally co n f in ed h ab eas relief to o rd ers req u irin g th e p etitio n er’ s u n co n d itio n al release f ro m cu sto d y ,” w e h av e reco g n ized th at

“ [i]n m o d ern p ractice” co u rts m ay “ em p lo y a co n d itio n al o rd er o f release in ap p ro priate circu m s t a n c es, w h ich o rd ers t

h e State to release th e p etitio n er u n less th e State tak es s o m e rem ed ial actio n , s u ch as to retry (o r

resen ten ce) th e p etitio n er.” Ha rvest v. Ca s t ro , 5 31 F.3 d 7 37
, 7 4 1 (9 th Cir. 2 0 0 8 ). C o n t

rary to th e d i ssen t, see Dissen t at 3 7, th is m o d ern p ractice is

co n sisten t w ith th e stan d ard f o r h ab eas relief n o ted in Do tso n an d S kin n er , b ecau se “ th e pris o n er w

h o sh o w s h is sen ten cin g w as u n co n stitu tio n al is
actu ally en titled to release, becau se th e j u d g m en t p u rsu an t to w h ich h e isN E T T L E S V

. G R O U N D S 16

W e read these stateme n ts as strong ly sug g esting that habeas is a vailable only for state p risoner claims that lie at the

core of h abeas (and is the ex clusive remedy for such claims), while § 1983 is the ex clusive remedy for state prisoner c laims that do n ot lie at the core o f habeas. Althoug h the Supreme C ourt has not provided an ex press ruling on the scope of habeas, “we afford ‘considered dicta from the Supreme Court

. . . a w eig ht that is g r eater than or d inary judicial dicta a s prophecy of what the court migh t hold.’” Managed Pharmacy Car e v

. Sebelius

, 716 F .3d 1235, 1246 ( 9th Cir. 2013) (quoting United States v. Montero-Camargo
, 208 F .3d 1122
, 1 1 3 2 n.17 (9th Cir. 2000) (en banc)); see also United States v. Baird

, 85 F

. 3d 450, 453 (9th Cir. 1996) (“Althoug h the D aniel construction

. . . may be dictum, we treat Supreme Court dicta with due defere n c e , a n d see no reason not to apply the Court’s construction in the case at bar.”).

The dissent heavily relies on cases wher e prisoners in federal custody broug ht habeas petition s u n d er 2 8 U .S.C. § 2241 claiming that the B ureau of Prisons acted contrary to

a federal statute that authoriz ed it to shorten the sentence o f

a federal prisoner under certain c i r c umstances. Dissent at 33–34, 45–47. See, e

. g. , Rodriguez v. Cop e nhaver

, — F .3d

—, No. 14-16399, 2 016 WL 3003423, at *4 (9th Cir. May 25, 2016); Close v. Thomas

, 653 F

. 3d 9 7 0
, 973–74 (9th Cir. 2011); Crickon v. Thomas

, 5 79 F .3d 978, 982 (9th Cir. 2009). None of these cases a ddressed the scope of habeas relief available to federal prisoners under § 2241, and therefore they shed n o lig ht on the issue before us. Nor do th e S upreme Court’s recent cases addressing the scope of habeas p e titions

co n f in ed h as b een in v alid ated ; th e co n d itio n al w rit serv es o n ly to ‘ d elay th e release . . . in o rd er to p ro v id e th e State an o p p o rtu n ity to co rrect th e

co n stitu tio n al v io latio n .’ ” Do tso n , 5 4 4 U.S. at 8 6 (Scalia, J
., co n cu rrin g ).N E T T L E S V

. G R O U N D S 17

vis-à-vis § 1 983 involve the rig hts of federal prisoners. See,
e.g. , S kinne r , 562 U.S. at 527; Dotson
, 544 U.S. at 82. B ecause the case before us involves a state prisoner’s action under 28 U.S.C. § 2254, we need n o t address how the standard sug g ested in Sk i n n e r a nd adopted here a

pplies to relief soug ht by

prisoners in federal custody

. 6

B

O ther factors support our adoption of the Supre m e Court’s strong sug g estion that a § 1983 action is the ex clusive vehicle for claims that are not within the core of habeas.

F irst, such a conclusion is consistent with t h e a naly tical framework in Preiser

. I n holding that § 1983 did not ex tend to claims within the c ore of habeas, Preiser p ut g r eat weig ht

on c ong ressional intent in determ i n i n g that Cong ress h ad amended the habeas statutes to require the “ex haustion o f

6 Dif f eren t ru les ap p ly to state an d f ed eral p riso n ers seek in g relief

. “ T h e g e n e r al ru le is t

h at a m otio n u n der 2 8 U.S.C. § 2 2 5 5 is th e ex c l u s i v e

m ean s b y w

h ich a f ed era l p r iso n er m ay t est th e leg ality o f h i s d eten tio n , an d th at restrictio n s o n th e av ailab ility o f a § 2 2 5 5 m o tio n c a n n o t b e

av o id ed th ro u g h a p etitio n u n d er 2 8 U.S.C. § 2 24 1 .” S tep h en s v. Herrera
, 4 6 4 F.3 d 8 9 5
, 8 9 7 (9 th Cir. 20 0 6 ) (in tern al citatio n o m itted ). B y its term s, 2 8 U.S.C. § 2 2 5 5 ap p lies o n ly to priso n ers “ clai m i n g t h e rig h t to b e released ” u

po n o n e o f a f

ew en u m erated g ro u n d s. A f ed eral p riso n er m ay f ile a § 2 24 1 p etitio n “ if

, an d o n l y i f, th e rem ed y u n d er § 22 5 5 is in ad eq u ate o r in ef

f ectiv e t o t est th e leg ality o f h is d eten tio n ” su ch as w h en

a priso n er “ (1 ) m ak es a claim o f actu al in n o cen ce, an d (2 ) h as n o t h ad an

u n o b stru cted p ro ced u ral sh ot at p resen tin g t h at claim .” Ma rrero v. Ives
, 6 8 2 F.3 d 1 1 9 0 , 1 1 9 2 (9 th Cir. 2 0 1 2 ) (in tern al q u o tatio n m ark s o m itted ). A s a f u rth er d istin ctio n , § 19 8 3 is g e n e r ally u n av ailab le to f ed eral
p riso n ers ch allen g in g p riso n co n ditio n s , bu t su ch p riso n ers m ay h a v e

reco u rse u n d er Biven s v. S ix Un kn o wn Na m ed Ag en ts , 4 0 3 U .S. 3 8 8 (1 9 7 1) an d th e Fed eral T o rt Claim s A ct (FT C A ).N E T T L E S V

. G R O U N D S 18

adequat e state remedies a s a condition precedent to the invocation o f federal judicial relief under those laws” a s a way to further Cong r ess’s policy g oal of avoiding “unnecessary friction b etween the federal and state court sy stems.” 411 U.S. at 489–91. The Court held that it should respect this cong ressional intent, id. at 492 n.10, and that “[ i] t would wholly frustrate ex plicit c ong ressional intent to hold that the respondents in the p r e s ent c ase could e vade this requirement by the simple ex pedient of putting a d ifferent label on their pleading s,” id. at 489–90.

J ust as Cong ress’s amendments to t he habeas statute i ndicated an intent to make habeas the ex clusive remedy for claims at the c ore of habeas, see id.

, Cong ress’s enactment o f the Prison L itig ation Reform Act ( P L R A )

, Pub. L

. No. 104- 134, 110 Stat. 1321 (1996), i n d i c ated an intent to make § 1983 the ex clusive remedy for “ all inmate suits about prison life,” P orter v. Nussle

, 534 U.S. 516, 532 (2002). The PL RA

was intended “to promote administrative redress, filter out g roundless claims, and foster better pr e p a r ed litig ation o f claims aired in court.” Id. at 528. B e fore the PL RA, plaintiffs pursuing actions under § 1983, i n c l u d i n g “ [p ] r i soner suits alleg ing constitutional deprivations while incarcerated” did not have to “ex haust a dministrative remedies before filing suit in court.” I

d. at 523 (citi n g W

i l w ording v. Swenson
, 404 U.S. 24 9
, 2 5 1 (1971) ( per curiam)). B ut Cong ress “enacted § 1 997e(a) to reduce t h e q u a ntity and improve the quality of prisoner suits” b y r e quiring ex h a ustion o f prisoners’ § 1 983 c laims. Id

. at 524. 7 Cong ress intended this

7 4 2 U.S.C. § 1 9 9 7 e(a), p ro v id es : “N o a c t i o n sh all b e b ro u g h t w i th
resp ect to p riso n

co n d i tio n s u n d er sectio n 1 9 83 o f th is title, o r an y

o th er Fed eral law

, b y a p riso n er co n f in ed i n an y j ail

, p r i s o n , o r o th er

co rrectio n al f

acility u n til su ch ad m in i strativ e rem ed ies as are av ailab le areN E T T L E S V

. G R O U N D S 19

ex h austion requirement to have a broad scope: “[ T] he PL RA’s ex haustion r eq u i rement applies to all inmate suits about prison life, whether they involve g eneral circumstances

or particular episodes, a n d whether they alleg e e x cessive force or some other wrong .” Id. at 532.

Cong r ess’s intent th a t state prisoners satisfy PL RA requirements for all § 1983 suits about pr i s oner life (other than claims at the core of h a b e a s ) sug g ests that Cong ress wanted § 1983 to be the ex clusive vehicle for su c h c l a ims. As in Preiser
, “[ i] t would wh o l l y frustrate ex plicit
cong ressional intent” to hold that prisoners could e vade the requirements of the PL RA “by the simple ex pedient o f putting a d ifferent label on their pleading s.” 4 11 U.S. at 489–90. M o reover, because Cong ress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub L

. No. 104-132, 110 S t a t

. 1214, at the same time as it enacted the PL RA, w e infer that Cong ress did not intend to make § 1983 and habeas reg imes interchang eable o r overlappin g

. AEDPA added procedural requirements for prisoners bring ing h abeas corpus peti tions that are separate and distinct from those imposed on § 1983 claim s by the P L RA, see W

oodford v. Ngo
, 548 U.S. 81, 9 7 ( 2 00 6 ), indicating an intent to make these reg imes independent a nd mutually ex clusive. 8

ex h au sted .”

8 T h e p ro ced u ral req u irem en ts im po sed b y A EDP A an d th e P L RA are d istin ct in su

b stan tial resp ects. T h e P L RA attem p ts to “ f ilter o u t

n o n m erito ri o u s claim s ,” Jo n es v. Bo ck

, 5 4 9 U.S. 1 9 9
, 2 1 3 (2 0 0 7 ), b y req u irin g j u d icial scr e e n i n g o f priso n er litig atio n , 2 8 U.S.C. § 1 9 1 5 (e), an d d ep riv in g a priso n e r o f th e rig h t to f ile in f o rm a p au p eris if t h e p riso n er in cu rs th ree “ str i k e s ,” d ef in ed as d i sm issals “ o n th e g ro u n d s th at [th e claim ] w as f

riv o lo u s, m alicio u s, o r f

ails to s tate a claim u

p o n w h ich reliefN E T T L E S V

. G R O U N D S 20

I n effect, these Cong ressional enactments c hannel prisoner litig ation throug h th e set of procedures that is best

s uited to address the ty

p e o f prisoner g rievance at iss u e. Many suits about prison conditio n s can be addressed

e f fectively and speedily by correction officials thro u gh internal g rievance procedures, which “mig ht improve prison administration and satisfy the inmate, thereby o b viating the need for litig ation.” See, e.g.
, Porter , 534 U.S. at 525. And if such claim s a r e not resolved by corrective action at the prison, “ adjudication could be facilitated by an administrative record that c larifies the c o n t o u r s of the controversy .” Id. Thus, a § 1983 action subject to the P L R A e x haustion requirements, which mandate that a prisoner first e x haust the prison’s administrative p r o cesses to the ex tent they a re available, is the best means of a ddressing such claims. On the other hand, habeas corpus i s t h e ex clusive remedy to attack the leg ality of the conviction or sentence, and for these
sorts of claims the ex h austion requirement g ives a state court “an o pportunity to correct its own con s t i t u tional errors” b e f o re a f ederal court orders release, thus respecting

m ay b e g ran ted ,” id

. § 1 9 1 5 (g ). AE DP A d oes n o t h av e an y sim i lar
req u irem en ts. AE D P A an d t h e P L RA also im

p o se d if f eren t ex h au stio n

r eq u irem en ts. Un d er A EDP A
, a state p riso n er m u st pu rsu e an d e xh a u s t all rem ed ies av ailab le in state co u r t b e fo re a f ed eral co u rt m ay en tertain

a p etitio n , u n less co rrectiv e p ro cess is u n av ailab le in th e state o r is in ef f ectiv e i n p ro tectin g th e p riso n er’ s rig h ts. Id

. § 2 2 5 4 (b )(1 ). Un d er th e P L RA
, by co n trast, p riso n ers m u st ex h au st state a d

min istra tive rem ed ies b y f ilin g a g riev an ce w ith in th e state p riso n sy stem u n less ad m in istrativ e

rem ed ies are n o t “ av ailab le,” b u t t h e plain tif f n eed n o t ex h au st state j u d icial rem ed ies b ef

o re f ilin g in f ed eral co u rt. Id

. § 1 9 9 7 e(a); W o o d fo rd

, 5 4 8 U.S. a t 8 5 ; Mc B rid

e v. Lo pez , 8 07 F.3 d 9 82
, 9 8 6 (9 th Cir. 2 0 1 5 ). Fu rth erm o re, A EDP A b ars seco n d o r su ccessiv e p etitio n s ch allen g in g th e

sam e state co u rt j u d g m en t, w ith so m e n arro w ex cep tio n s f o r cla im s th at

w ere n o t p resen t ed in th e p rio r p etitio n , see 2 8 U.S.C. § 2 2 4 4 (b ), b u t th e P L RA co n tain s n o an alo g o u s lim itatio n

.N E T T L E S V

. G R O U N D S 21

traditional notions of federal-state c o mity

. Preiser
, 411 U.S.
at 484, 490–91. Our holding that a § 1983 a c t i o n i s t he

ex c lusive vehicle f

or suits about prison li fe furthers Cong r ess’s efforts to direct prisoner litig ation to the appropriate procedural channel.

C

W e are a lso persuaded to adopt the rule that habeas is available only for actions in the “core of habeas” becau s e it has the benefits of clarity and administrability

. Our preSkinner opinions addressing this issue strug g led to draw a line between h a b e a s and § 1983 actions, and we have not provided clear direction to state p risoners bring ing such challeng es or d istrict courts a d d ressing them. W e have long held that prisoners may not ch a l l e n g e mere conditions o f confinement in habeas corpus, see Crawford v. Bell

, 599 F .2d 890, 891–9 2 ( 9 t h Cir. 1979), 9 but we h ave reached inconsistent results in o ur e f forts to delineate more precisely the claims which may not be broug ht in habeas. Thus, while

we stated in Ramirez v. Galaza that a prisoner could not bring

a h a b e a s petition to seek ex pung ement of a disciplinary charg e w here “a successful challeng e to a prison condition will n ot necessarily shorten the prisoner’s sentence,” 334 F .3d 8 50, 859 (9th Cir. 2003) (e m phasis added), we subsequently stated, inconsistently

, that p risoners c ould bring claims in a habeas petition “challeng ing aspec t s of their

9 T h e F if th

, Six th

, Sev en th

, an d T en t h Circu its h av e reach ed t

h e sa m e

co n clu sio n

. S e e Lu ed tke v. Berkeb ile

, 7 0 4 F.3 d 4 6 5
, 4 6 5

– 6 6 (6 th Cir. 2 0 1 3 ); Gla u s v. An d

erso n , 4 0 8 F.3 d 3 8 2 , 3 8 6 (7 th Cir. 2 0 0 5 ); Ca rso n v. Jo h n so n , 1 1 2 F.3 d 8 1 8, 8 2 0

– 21 (5 th Cir. 19 9 7 ); McIn to s h v. U.S

. Pa r o le C o m m ’ n , 11 5 F.3 d 8 09
, 81 1

– 1 2 (1 0 th Cir. 1 9 9 7 ). Bu t see Aa m e r v

. Ob a ma , 7 4 2 F.3 d 1 0 2 3 , 1 0 31

– 32 (D.C. Cir. 2 0 1 4 ).N E T T L E S V

. G R O U N D S 22

parole r eview” so long as suc c es s o n the claims “ could potentially affect the duration o f their confinement,” Docken

v. Chase

, 3 9 3 F .3 d 1 0 2 4
, 1031 ( 9th Cir. 2004) (emphasis added); see also Bostic v. Carlson

, 884 F .2d 1 267, 1269 (9th Cir. 1 989) (holding that a pri s o n e r could bring a petition in habeas to seek relief f

rom various disciplinary decisions that resulted in “for f

e i t u re of statutory g ood time or seg reg ation from the g eneral prison population,” where the relief was for “ex p u ng e ment of the incident from his disciplinary record” so long as such “ex p ung e ment i s l i k ely to accelerate the prisoner’s elig ibility

for parole.” (emphasis added)).

B y contrast, Skinner ’ s core-of-habeas standard is a welltested one that does not require the sort o f probabilistic analy sis found in s o m e of our prior precedent, such a s whether success on a claim would be “likely ” to lead to an earlier release, Bostic
, 884 F .2d at 1 269, or “ could potentially affect the duration o f their confinement,” Do c ken

, 393 F .3d
at 1031 (emphasis added). The standard sug g ested in Skinner does not require us to g uess at the discretionary decisions of
state officials in order to determine whether a n action sounds in habeas or § 1983, and which prerequisi tes must be met. And it follows Skinner’s sug g estion “ that habeas mig ht not

even b e a vailable f

o r ‘ p ro babilistic’ c laims.” Davis v. U .S. Sentencing Comm’n
, 716 F

. 3d 6 60, 6 6 5 (D.C. Cir. 2013). 1 0 This rule will likewise g ive needed clarity to state prisoners. I f the prisoner’s claim challeng es the fact or d urati on o f the

co n v iction or sentence, c ompliance with AEDPA is

10 T h e d issen t cites to Fif th

, S ix th an d D.C. Ci r c u i t c a s e s h old in g th at

“ t h ere i s so m e d eg ree of p erm issib l e o v erlap b etw een § 1 9 8 3 an d h ab eas,” Dissen t at 4 3 , b u

t each w as d ecid ed b ef

o re S kin n er su g g ested a d if

f eren t stan d ard

. Da vis is th e o nly o u t- o f

- circu it case to d ate to co n s id er S kin n er ’ s su g g estio n

reg ard in g th e sco p e o f

h ab eas relief

.N E T T L E S V

. G R O U N D S 23

mandated, w hile if the claim challenges any o ther aspect o f prison life, the prisoner must comply with the PL RA. 1 1

According ly

, we now resolve the inconsistency in our

case law a

nd adopt the Su preme Court’s sug g estion that if a state prisoner’s claim does not lie at “the core of h abeas corpus,” Preiser
, 4 1 1 U

. S. at 487, it may not be broug h t in habeas corpus but must be broug ht, “ if at all,” under § 1983, Skinner

, 562 U.S. a t 535 n.13. W e therefore overrule Docken

v. Chase

, 393 F .3d 1024, and B ostic v. Carlson

, 884 F .2d 1267, to the ex tent they

are inconsistent with this rule.

I I I

W e now apply this s tandard to Nettles’s federal h abeas petition, which challeng ed the disciplinary proceeding s held in connection with the 2008 rules v iolation report. Nettles
arg ues that h is claims a ffect the durati o n of his sentence because if he succeeded in ex pung ing his 2008 rules violation report, the B oard would more likely set his nex t parole hearing at an earlier date, Cal. Penal Code § 3041.5(b)(4), a nd would be more likely to g ive him a favorable p arole ruling

. 1 2

11 T h e d issen t su g g ests t

h at th is ru le d ep riv es p etitio n ers o f a rem ed y f or p r o c e d u ral v io latio n s. S ee Dissen t at 3 3. T o t

h e co n t rary , o u r h o l d i ng ch an n els p riso n er claim s th ro u g h th e ap pro p riate p ro ced u res, rath er th an f o reclo sin g relief

. T h u s, if a state p riso n er’ s su ccess i n c ha l l e n g i n g a p ro ced u ral v io latio n w o u ld n ecessarily resu l t i n i m m ed iate o r sp eed ier release f ro m cu sto d y , th e p riso n er’ s claim w o u ld so u n d in h ab eas, w

h i le

a state priso n er co u ld ch allen g e o th er p ro ced u ral v io latio n s b y b rin g in g an actio n u n d er § 1 9 8 3

.

12 N ettles also arg u ed th at o n ce g ran ted p aro le, th e p an el’ s calcu la t i o n

o f th e tim e h e m

u st serv e bef

o re release w ill n ecessarily b e af f ected b y th e rein stated p o stco n v i ctio n cred i ts. B u t af t er Jan u ary 1
, 2 01 6
, t

h e ef f ectiv e d ate o f th e n ew l aw , th e p an el n o lo n g er calcu lates a release d ate, m ak in gN E T T L E S V

. G R O U N D S 24

W e disag ree. Success on the merits of Nettles’s claim would not necessarily lead to imme diate or speedier release because the ex pung ement of the challeng ed d i sciplinary

v i o l ation w ould not necessarily lead to a g rant of par o l e. Under California law, the parole board must consider “[ a ] ll relevant, r eliable information” in determining suitabili t y for parole. Cal. Code Reg s. tit. 15, § 2281(b). A rules violation is mer ely one of the factors shedding lig ht on whether a p r isoner “constitutes a current threat to public safety

, ” I n r e Lawrence
, 190 P.3d 535, 553 (Cal. 2008). B e cause the parole board has the authority to deny parole “on the basis of a ny o f the g rounds presently available to it,” Ramirez
, 334 F .3d at 859, the presence of a disciplinary infraction does not compel the d e nial of parole, nor does an absence of an infraction compel the grant of parole.

He r e , the panel o f the B oard of Parole H earing s considered a rang e of r elevant factors bearin g o n Nettles’s future dang erousness, including h is inabil ity to learn from prior imprisonments, h is lack of insig ht and remorse reg arding his crimes, and his arg umentative and stubborn attitude. The presiding c ommissioner discussed at gr eat leng th the factors that led h i m to conclude that Nettles was

n o t suitable for parole, including the heinous n ature o f N e t t l es’s crime of conviction, a psy cholog ical report on Nettles, an d N e ttles’s attitude. W hile the presiding commissioner did n ote the multiple rules violations reports is sued to Nettles, his remarks g ave no indication that Nettles’s 2008 violation report was an important, let alone determinative, factor in his decision.

th is arg u m en t n o lo n g er relev an t

. S ee C al. P en al Co d e § 3 0 4 1 (a).N E T T L E S V

. G R O U N D S 25

Under C alifornia law a

nd the circumstances of Nettles’s
case, the panel could deny parole to Nettles even if he succeeded in ex pung ing the 2008 rules v iolation report. F urthermore, since the d ecis i o n t o g rant an earlier release date o n the basis of new informati o n is placed in the discre t i o n of the parole board, Cal. Penal Code § 3041.5(d)(1), success o n Ne ttles’s claim would not even necessarily

lead to an earlier parole hearing

.

B ec a u se success on Nettles’s claims would not necessarily lead to his immedi a te or earlier release from confinement, Nettles’s claim does not fall within “the core o f habeas corpus,” Skinner

, 562 U.S. at 535 n.13
, and he must instead bring his claim under § 1983.

I V

Althoug h Nettles’s claims are not cogn i z a b le in habeas,

we must still c onsider whether the d istrict court may construe Nettles’s h abeas petition as pleading a cause of action under § 1983.

The Supreme Court has long held that habeas p e titions “may

. . . be read to plead causes of action under [ § 1983] ” and that pri s o n e r s bring ing the wrong action a re “ entitled to have their actions treated as claims for relief under the Civil Rig hts Acts.” W

ilwording

, 404 U.S. at 251. The Seventh a nd Ei gh t h Circuits have also concluded that under c ertain circumstance s , a court may convert a habeas petition into a civil rig hts cla i m under § 1983 or Bivens v. Six U nknown Named A gents of

Federal Bureau of

Narcotics
, 4 03 U.S. 388 (19 7 1). S e e Spencer v. Haynes
, 774 F .3d 467, 471 (8th Cir. 2014) (stating that habeas petitions can b e recharacteriz ed a s § 1983 or Bivens actions); R o binson v. Sherrod

, 631 F .3dN E T T L E S V

. G R O U N D S 26

839, 841 (7th Cir. 2011) ( same); Glaus v. Anderson

, 408 F .3d 382, 388 (7th Cir. 2005) (stating that such recharacteriz ation is not “utterly

out of the question”).

The rule in W

ilwording

, however, was develope d l ong before the en a c t m ent o f the PL RA, during a time w hen a court could allo w a pro se litig ant to r eplead a h abeas claim

as a § 1983 claim or merely ig nore the error in pleading

. Glaus

, 408 F .3d at 388. After the PL RA became effective, “a habeas corpus action and a prisoner civil rig hts suit differ in

a variety of respects—such as the proper defendant, filing fees, the means of collecting them, and restrictions on future filing s—that may make recharacteriz ation impo ssible or, if possible, disadva n t ag eous to the prisoner compared to a dismissal without prejudice of his p etition for habeas corpus.” Robinson

, 631 F .3d a t 841; see also Glaus

, 4 0 8 F. 3 d at 388 (noting that recharacteriz ing a prisoner’s action as a ci vil rig hts action may make it subject to the PL RA’s three-strikes rule a nd different e x haustion requirements, as we l l a s requiring the complaint to name a diffe r e n t d efendant, such

as the individual official responsible for the wrong r a ther than the warden).

I n the r everse situati o n , where a d istrict court recharacteriz ed a pro se litig ant’s civil rig h ts claim as a habeas petition, the Supreme Court warned courts to avoid a recharacteriz ation that d isadva ntag ed a petitioner by

, for

ex a mple, subjecting the petitioner to restrictions o n second o r successiv e h a beas petitions. Castro v. United States
, 540 U.S. 375, 382–83 (2003). According ly

, Castro held that before recharacte r iz ing a c ivil r ig hts claim, a district court must “notify the pro se litig ant that i t i n tends to recharacteriz e the pleadi n g, warn the litig ant that this recharacteriz ation means that any subsequent § 2255 motionN E T T L E S V

. G R O U N D S 27

w i l l b e subject to the restrictions on ‘second or successi v e ’ motions, and provide the litig ant an opportunity to withdraw the mot i o n o r 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, 4 64 ( 9th Cir. 2000) (holding that a court should not recharacteriz e a prisoner’s pro se filing as a f e deral habeas p etition when doing so would be to th e prisoner’s disadvantag e).

W e ag ree w ith the Seventh Circuit that “ t h e same log ic should a pply to the potential c onversion of a habeas corpus petition into a c ivil rig hts claim.” Glaus

, 408 F .3d at 388. “I f the complaint is a menable to conversion on its face, meaning that it names the correct defendants and seeks the correct relief, the court may recharacteriz e the petition so lo n g a s i t

warns the p ro se litig ant of t he consequences of the conversion and provides an opportunity fo r t h e litig ant to withdraw or amend his or her complain t

. ” Id

. ; see also Robinson

, 631 F .3d at 841 (warning dist r i c t c o urts “ not to recharacteriz e a prisoner’s petition fo r habeas corpus as a prisoner civil rig hts c omplaint w i t h o ut his informed consent”); S

pencer , 774 F .3d at 4 7 1 ( “[ T] he better practice will be for district courts to first o btain the consent of the pro

se individual b efore converting th e i r c laims from a h abeas proceeding to a Bivens action.”).

J oining our sister c ircuits, we h o l d that a district court may construe a petition for habeas corpus to plead a cause o f action under § 1983 after n ot i f y i n g and obtaining informed
consent from the p r i s o ner. According ly

, we vacate the district court’s dismissal o f this matter and remand it to the district court for proceeding s consistent with this opinion.

VACATED AND REMANDED

.N E T T L E S V

. G R O U N D S 28

HURW I TZ , Circuit J udg e, concurring in part:

Until 2011, the Supreme Court had not y et spoken clearly

on the issue reserved in Preiser v. R odriguez : the availability of habeas corpus relief “as an alternative remedy to a proper action u nder § 1983.” 411 U.S. 475, 500 (1973). B ut, thing s have chang ed.

I n W ilkinson v. Dotson
, the Court confirmed tha t a suit under42U.S.C

. § 1983 “will not lie w hen a stateprisoner challeng es the fact ordurat ion of his confinement, and seeks either immediate release from prison, o r the shortening o f his
term of confinement.” 544 U.S. 74, 7 9 (2005) (citations a nd quotation marks omitted). A s in Preiser
, the D otson majority did not address whe t h e r 2 8 U.S.C. § 2 254 habeas corpus jurisdiction is confined to s u c h c halleng es, contenting itself
to find that the respondents’ claims fell outside the “implicit habeas ex ception” a

nd were cog niz a

ble under § 1983. Id. at 82. B u t, J ustice Scalia’s concurrence squarely addressed the issue now before us. He contended that allowing suits like the one b e f

o re us today to proceed under § 2254 “ would

re q u ire u s to broaden the scope of habeas relief bey ond
recog nition.” Id. at 85 (Scalia, J

. , concurring ). J ustice Scalia perceived a brig

ht-line test for habeas jurisdiction:

I t is one thing to say that permissible habe a s relief, as our cases interpret the s t atute, includes ordering a q

uantum ch a n g e in the level of c ustody

, such as r e lease f rom inca rceration to parole. I t is quite another to

s a y that the habeas statute authoriz es federa l
courts to order relief t h at neither terminates custody

, accelerates the future date of releaseN E T T L E S V

. G R O U N D S 29

from custody

, nor reduces the level o f custody

.

Id. at 86 (citation and quotation marks omitted). Ex panding habeas jurisdiction to cover such c laims, J ustice Sca l i a warned, “ would utterly se v e r the writ from its common-law roots.” Id

.

Until 2011, Ju s t i c e S c a l i a ’ s concurrence (joined by J u stice T h o m a s) was simply the view of two J ustices on a n undecided issue. B u t, then came Skinner v. Switzer
, 562 U.S. 521 (2011). That c ase, like Preiser a nd Dotson ,involved the
scope of § 1983 juris d i c t i on; the Court concluded that a prisoner c laiming a denial of due process because of the state’s refusal to g ive him access to DNA samples could seek relief u nder the c ivil rig hts statute. Id. a t 5 3 4

. B ut, in

ex p laining that decision, the six

- J ustice Skinner majority

ex p ressly rejected the respondent D istrict At torney ’s
arg ument (adopted by the three dissente rs) that “Skinner’s request for DNA testing must be pursu e d

, i f at all, in an application for habeas corpus, not i n a § 1983 action.” Id

. Most importantly for today ’s p urposes, the Court did so b y citing J u stice Scalia’s Dotson concurrence with approval:

I t suffices to p oint out that Switz er has found

no c ase, nor has the d issent, in which the Court has re c o gn iz ed habeas as the sole remedy

, or even an a vailable one , where the relief soug ht would “ neither terminat[ e] custody

, a ccelerat[ e] the future date of release from custody

, nor reduc[ e ] the level o f custody .” Dotson
, 544 U.S., at 86, 125 S. Ct. 1242 (Scalia, J ., concurring ).N E T T L E S V

. G R O U N D S 30

Id

. (emphasis add e d ) (brackets in orig inal). The Court later reinforced the point, a g ain c iting J ustice Scalia’s concurrence with approval:

Dotson declared, however, in no uncer t ain terms, that when a prisoner’s claim would not “necessarily spell speedier r elease,” that claim does not lie a t “the core of habea s corpus,” and may be broug h t, if a t all, under § 1983. 544 U.S., at 82, 125 S. Ct. 1242 (majority opinion) (internal quotatio n marks omitted);

see id., a t 85–86, 125 S. Ct. 1242 (Scalia, J
., concurring ).

Id . at 535 n.13.

I find Skinner an u nambig uous indication of the Supreme Court’s v iew on the issue b efore us. The sta t e m e n t s quoted above are, to be sure, technically dicta—the question before the Court was whether Skinner could bring a § 1983 c laim,
not a habeas petition. B ut, in rejecting the District Attorney ’s contention that Skinner had a p otential remedy i n h ab eas alone, the Court ex pressly a d o p t ed the r easoning in J u stice Scalia’s Dotson concurrence that § 2254 relief is limited to cl a i ms that would n ecessarily spell speedier release, accelerate future release f rom c ustody

, or reduce the level o f custody . Nettles does not pose such a claim.

Supreme Court d icta as carefully considered as that in Skinner i s s p e c ial; it should be followed absent compelling

reasons to the contrary

. This case presents none. W ere we eng ag ed in an “ Erie g uess” today about how a state supreme court mig ht decide an issue, we would not pause a moment in lig ht of the kind of statements in Skinner

. W e should g iveN E T T L E S V

. G R O U N D S 31

the Supreme Court similar deference in these circumstances;

we best perform our duties as an Article I I I “infer ior” court by not treating the carefully considered Sk i n n e r statements, consciously used to rej e ct a n arg u ment that habeas was an available remedy , as idle musing s.

W e re we approaching this matter on a clean slate, traditional principles of statutory construction mig ht lead me to a d ifferent result. B ut we a r e not. Parsing the lang u ag e or history of § 2254 is unnecessary to determine where t h e Supreme Court stands on the issue before us. I therefore join Parts I , I I (A), I I I , and I V of J udg e I kuta’s opinion.

B ERZ ON, Circuit J udg e, joined by THOMAS, Chief J udg e , a n d F L E TCHER, MURGUI A
, a n d N G U Y EN
, C i r c u i t Ju d g e s , dissenting :

Damous Nettles w as denied parole. He arg ues the parole board’s decision was based a t least in part on a discip l i n a ry proceeding in whi c h h e 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,” beca u s e t he parole board could d e n y him parole even w ithout c onsidering the disciplinary p roceeding at issue. Pr. Op. at 25. 1 The majority there f ore holds that Nettles cannot seek a writ o f h abeas
corpus. This response flouts our normal approach to alleg ed

1 On ly so m e p o rtio n s o f J u d g e Ik u t a’ s o pin io n h av e th e su p po rt o f a

m a j o r i t y o f th e en b an c co u rt. S o it is th e m aj o rity o p in io n i n s o m e resp ects an d a p l u rality o p in io n i n o t h e r s

. Fo r clarity

, I cite it in th is d issen t as th e “ P rin cip al Op in io n ” (“ Pr. Op .”).N E T T L E S V

. G R O U N D S 32

violations of procedural rig h ts a n d is inconsistent with the
statutes and precedent g overning p e titions for h abeas corpus. I therefore respectfully dissent.

I

W h e n the violation of a procedural rig ht is alleg ed, the constitutional claim cannot be dismissed j u s t b y noting that the proceeding in question mig ht have come out t h e same way absent the alleg ed violation. “[ T] he rig ht to procedural due process is ‘absolute’ in the sense that it does not depend
upon the merits o f a claimant’s substantive a ssertions

. . . . ” Carey v

. Piphus

, 435 U.S. 247, 266 (1978). I n other words, the r ig h ts N ettles h as g oing into a hearing m a y b e invoked “whatever the ultimate outcome of [ the] h earing ” may be. Id. (quoting Fuentes v. Shevin

, 4 07 U.S. 67, 87 ( 1972)) (internal quotation marks omitted).

This principle e x ists b oth to protect individual rig hts a nd
to maintain the p ublic g ood stemming from t he scrupulous enforcement of impartial procedures. The individual rig ht to

a public trial, for instance, ha s l o n g been “recog niz ed as a safeg uard ag ainst any attempt to employ our courts a s instruments of persecution.” In re Oliver

, 333 U.S. 257, 270 ( 1 9 4 8 )

. The rig ht to an opportunity to be heard i n administrative hearings h elps hold g overnment officials accountable for their assertions. See Joint A nti-Fascist Re f u g e e Comm. v. McGrath

, 341 U.S. 1 23, 170–71 (1951). These sy stemic benefits would not accrue if the Constitution’s procedural sa fe g uards w ere allowed to lapse where we thoug ht it likely they would not affect the outcome of a hearing

or trial. See Carey , 435 U.S. at 266.N E T T L E S V

. G R O U N D S 33

The standard announced by today ’s majority circumvents this basic facet of procedural justice. The majori t y opinion holds that h a

beas petitions are not availab l e unless a claimant’s success “would necessarily demonstrate the i nvalidity o f c onfinement or its duration.” Pr. Op. at 9

– 1 0 (emphasis a dded) (internal q uotations omitted). W here a claimant a lleg es a procedural v iolation, as Nettles does h ere, the majority uses the fact that the proceeding m ight have resulted i n t he same outcome any way to close the door to habeas relief entirely

.

This approach, if t a k e n seriously

, will foreclose h abeas relief on many procedural claims. Petitions f o r a w rit o f habeas corpus may

be broug ht by those alleg ing they are “in custody in violation o f the Constitution or laws or treaties o f the United States.” 28 U.S

. C

. § 2 241(c)(3); see also 28 U.S.C. § 2 254(a). W e reg ularly interpret this lang uag e to i n c lude p risoners who assert their c onfinement to be predicated o n the violation of a procedural rig ht, even if the proceeding in question mig h t have come out the s a m e w ay had constitutionally proper procedur e s b een followed. See,
e.g. , Dixon v. W

illiams

, 750 F .3d 1 027, 1032 ( 9th Cir. 2 014) (rig ht to due process); U nited Stat e s v. W

ithers

, 6 38 F .3d 1055, 1 063 (9th Cir. 2011) (rig ht to a public trial); Holley v. Y a rborough

, 568 F .3d 1091, 1098 (9th Cir. 20 0 9) (rig ht to confront witnesses); B onin v. Calderon

, 59 F .3d 815, 824 (9th Cir. 19 95) ( r ig ht to assistance of counsel); Campbell v

. Blodgett

, 978 F .2d 1502, 1508 ( 9th Cir. 1992) (rig ht to be present during voir dire ). The successful invocation of some procedural r ig hts, like the r ig ht to effective assis t ance o f counsel, may depend on a n a f firmative showing that the
outcome of the proceeding in question was prejudiced in

some w ay

. See, e.g. , Strickland v. W ashington

, 466 U.S. 668, 6 9 3 (1984). B ut it will almost alway s be the case that t h eN E T T L E S V

. G R O U N D S 34

proceed i n g c o uld have resulted in the same outcome even absent the alleg ed defect.

J ust a s the prisoners i n t h e c i ted cases arg ued that they

wer e i n custody in violation of the law due to a trial prejudiced by procedural violations, Nettles arg ues h e i s in custody in violation o f the law due t o a p arole h earing prejudiced by p rocedural violations. W e have reg ularly heard post-conviction claims broug ht in habeas by priso n e r s even when the rel ief soug ht would not necessarily result in a speedier release.

Earli er t h is y ear, for instance, in Rodriguez v

. Copenhaver

, w e g ranted relief to a f e d e ral prisoner under § 2241 even thoug h such relief “would not necessarily lead to his immediate or earlier release from confinement.” Pr. Op.
at 25; see Rodriguez v. Copenhave r ,

_ _ F. 3 d

__ , No. 14- 16399, 2016 W L 3003423 (9th Cir. May 2 5
, 2016). I n that
case, Rodrig uez contested the B O P’s rejection of his request to g et c redit applied to his sentence for time served i n s t a t e custody

. I

d. at *3. I n e valuating R o d r ig uez ’s request, the B OP considered a letter f rom a judg e w ho had been recused from Rodrig uez ’s case. Id. at * 3–4. W e h e l d that b y incorporating the lett er into its decision, the B OP v iolated both due process and a federal statute. I d. at *4.

I mportantly

, Rodriguez d id n ot indicate that Rodr i gu e z

wa s e n t i t l e d to have credit applied to his sentence. To the contrary , w e noted that the B OP’s decision was an ex ercise o f discretio n

. I

d

. a t *3; see also 18 U .S.C. § 3621(b). As a result, we simply remanded w ith directions for the B ureau o f Prisons (B OP ) t o reconsider Rodrig uez ’ s request anew, without reg ard to the judg e’s letter. Rodriguez

, 20 1 6 W L 3003423, at *4.N E T T L E S V

. G R O U N D S 35

Rodriguez is not the only habeas petition we have entertained r e lating to early r elease where the petitioner’s

s u c cess “ would not necessarily spell immediate or speed i e r

r e l ease.” W

ilkinson v. Dotson
, 544 U.S. 74, 81–82 ( 20 0 5 ) ;
see, e.g. , Close v. Thom a s , 653 F .3d 970 (9th Cir. 2 011); Crickon v. Thomas

, 579 F .3d 978 (9th Cir. 2009).

The Supreme Court h a s a lso heard at least two such cases, California Department of Cor r e c t ions v

. Morales

, 514 U.S. 499, 504 (1995), a

nd E dwar d s v

. Balisok

, 520 U .S. 641 (1997). I n Morales

, the petitioner, Morales, broug ht a h abeas action v ia 28 U .S.C. § 2254 arg uing that a statute violated the Constitution’s prohibition on ex post facto laws. 5 14 U.S. at 504. The statute in question meant that Morales was elig ible for parole suitability h e a

ring s every three y e ars rather than each y ear. Id. at 503.

Edwards v

. Balisok

, a case the majority discu s s e s, is another relevant ex ample and h ints a t the implications of the majority ’s standard. Pr. Op. at 12. I n Baliso k

, the Supreme Court required the respondent, B alisok, to bring h is d ue process challeng e to the prison’s discipl i n a ry procedures under the habeas statute, rather than § 1983. 520 U.S. at 648. B alisok did not dispute the r esult of his disciplinary hearing

, admitting that the priso n likely could r evoke his g ood-time cred i t in a procedurally proper hearing

. I d. a t 644–45, 647–48. H owever, because B alisok’s procedural challeng e s “impl[ ied] the invalidity o f the punishment imposed,” he was required to proceed in habeas, even thoug h the validity of his underly ing judg ment of conviction was not at stake, and even thoug h success on his c l a im would not necessarily have resulted in speedier relea s e

. I d

. at 648. The majority ’s standard apparent l y would leave similarly situated plaintiffsN E T T L E S V

. G R O U N D S 36

without a remedy

, barring them from seeking relief using the only route the Supreme Court left open. 2

F or Morales, Rodrig uez , and B alisok, as well as for many

w ho challeng e the adequacy o f procedures used at the t r i al resulting in their conviction, the procedural violation may not h ave b een the cause of their confinement. They migh t w e l l have been confined a

b sent t h e v i o l a tion. B ut the Supreme Court has never held — o r even sug g ested — that petitioners such as thes e h a v e not successfully alleg ed they are “in custody in violation o f the Constitution or laws or treaties o f the United States,” 28 U.S.C. §§ 2241(c)(3), 2254(a). To the contrary , the cas e s j u s t d iscussed sug g est that a p etitioner

m e e t s this statutory lang uag e and may seek a w rit of habe a s corpus if they are (1) in custody

, and (2) their c ustody “could potentially ” e nd or be shor t ened if an unconstitutional procedure were voided and a n ew p r o c e eding ordered. See Docken v. Chase

, 393 F

. 3d 1024, 1 031 (9th Cir. 2 004) (emphasis omitted). 3

2 Each o f th ese ex a m

p les co u n ters th e su g g estio n b y b o th th e m aj o rity

an d Ju dg e Hu rw i tz’ s co n cu rren ce th at th ere ex ists “ n o case

. . . in w h ich th e Co u rt h as reco g n ized h ab eas as th e so le rem ed y , o r ev en an av ailab le

o n e, w h ere th e relief so u g h t w ou ld n eith er term in at[e] cu sto d y , accelerat[e] th e f

u tu re d ate of release f

ro m cu sto dy

, n o r red u c[e] th e lev el

o f cu sto d y .” P r. Op

. at 1 5 (q u o tin g S kin n er v. S

witzer
, 5 6 2 U .S. 5 2 1
, 5 3 4 (2 0 1 1)) ( i n tern al q u o tatio n m ark s an d citatio n om itted ); Co n cu rrin g Op

. at 2 9

– 3 0 (sam e).

3 A g ain

, it is p o ssib l e th at h ab eas relief co u ld b e d en ied in a case su ch

as th is on e o n lack of p rej u d i ce g ro u n d s , i f t h e p rej u d i ce stan d ard
ap p ro p ri a t e t o t h e circu m s t an ces w ere n o t m et. T h e p resen t i ssu e, h o w ev er, is w

h eth er th e p etitio n er w as en titled to b rin g a h ab eas p etitio n at all.N E T T L E S V

. G R O U N D S 37

This understanding of the hab e as statutes is also more consonant with the relief that courts ty pically g rant a h abeas petitioner. A petitioner’s success on their habeas claim often does not meet the majority ’s standard of “immediat e o r spe edier release.” Pr. O p. at 24. F requently

, federal courts allow the prisoner to remain confined while the relevant proceeding is redone. See, e.g. , R odriguez

, 2016 W L 3003423, a t *4. These r emedies a r e c onsistent with C o ng ress’s directive that c ourts sitting in habeas “shall

. . . dispose o f the matter as law and justice require.” 2 8 U.S.C. § 2243. Conson a n t w i th this lang u a g e, the Supreme Court has rejected “the notion that immediate ph y sical release [ is] the only remedy under the federa l w r i t of habeas corpus.” Peyton v

. Rowe
, 391 U .S. 54, 67 (1968). F ederal courts have “broad discretion in conditioning a judg ment g r anting h abeas relief,” Hilto n v

. B raunskill

, 481 U.S. 770, 775 (1987), and,

a s a practical matter, the g ranting of a writ often does n o t result in e ither “immediate” o r “speedier” release. Pr. Op. at 24. The majority opinion thus declares a s t andard that is inconsistent with both the lang uag e of §§ 2241 a nd 2254 a nd 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
cong ressional intent and the Supreme Court’s “ s t r ong sug g estion” that habeas relief a n d r elief under § 1 983 a re mutually ex cl u s i v e. Pr. O p. at 1 7. B ut today ’s opinion misreads the pertinent cases a nd the Supreme Court’s jurisprudence, and it contorts the relationship between h abeas and § 1983 that the Suprem e C o u r t ex plicated in Preiser v

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

.N E T T L E S V

. G R O U N D S 38

A. The proper relationship between habeas and § 1983 is based on the familiar principle of statutory interpretation that “the specific g overns the g ener a l

. ” S ee, e.g. , Long Island Care a t Home, Ltd. v. Cok e , 5 5 1 U.S. 158, 170 (2007). Section 1983 provides a b road vehicle for relief from illeg al
state action in g eneral

, while the w rit of habeas corpus is a remedy for relief from ill eg a l confinement in p articular. Preiser
, 411 U.S. at 490. Pr e i s e r held that the specific remedy pr ovided b y the habeas statute “must override the
g eneral terms of § 1 983.” Id. I n other words, when prisoners directly c halleng e the fact or duration of their confinement, that challeng e must be broug ht under habeas.

The justification f

or so limiting § 1983 actions is that the h a b e a s r e m e d y i s “ s u f fi ci e n t l y c o m p r e h e nsiv e” t o “demonstrate cong

ressional intent to preclude the remedy of suits under § 1983” for certain claims by p ri s o ners. Middlesex Cty. Sewerage Auth. v. Nat’l Sea Clammers A ss’n
, 453 U.S. 1, 20 (1981); Docken

, 3 93 F .3d at 1026 n.2. Those claims, held Preiser
, are those that are “ w i t h i n the core o f habeas corpus.” 411 U.S. at 487 (emphasis added). P reiser defined that core to contain claims where “a state prisoner is challeng ing the very f

act or d uration of his phy sical imprisonment.” Id. at 5 00. P reiser did not hold that habeas jurisdict ion is confined to what it described as the “ core” o f h a b e a s ; h ad it meant to do so, its references to the “ core” of habeas c orpus, as distinct f rom the overall reach o f the w rit, would have been pointless. P r ei s er r einforced the limited
nature of its holding b y cautioning that the e x act scope of the overlap between § 1 983 and habeas was “not before us,” id. ; had Preiser meant the “ core o f habeas corpus” to equate with the entire b readth of the writ, that cauti on would have been

u n n e c e s sary

. And as J u stice Thomas noted in his d issent in Skinner v. Switzer
, 562 U.S. 521, 538 (2011), the Court “hasN E T T L E S V

. G R O U N D S 39

never p u r

p o rted to fully circumscribe the boundaries o f § 1983,” as distinct from habeas corpus.

The justification for limiting § 1983 out o f consideration for habeas does not work in reverse. The ex istence of a broad statute does not imply

a cong r essional desire to limit a more specific one, especially one larg ely e nacted la ter. 4 “[ T] he specific g overns the g eneral,” Long Island Care
, 551 U .S. at 170, not vice versa. Consistent with that prec ept, the Supreme Co u

r t’s cases since Preiser have focused on whether and to what ex tent § 1983 should be limited b y h a b eas, not the other w ay around. See, e .g

. , Dotson
, 544 U.S. 74, 81 (2005); Skinner , 562 U.S. at 534.

The majority opinio n maintains these cases should be

seen as “strong ly sug g esting ” that habeas and § 1983 do not overlap at all, eve n a s to asserted violations o f constituti o nally required procedures that, if corrected, could

— but will n ot necessarily — result in earlier release. Pr. Op.
at 1 6

. This reading of the precedents relies p rimarily on three Supreme Court cases : Muhammad v. Close

, 540 U.S. 749

4 Sectio n 1 9 8 3 w as en acted i n th e Civ il Rig h t s Ac t o f 1 8 7 1 an d h as

ex isted in larg ely th e sam e f o rm to th is d ay

. S

ee Preiser
, 4 1 1 U.S. at 4 76 ; Civ il Rig h ts A ct o f 1 8 71
, ch

. 2 2
, 1 7 Stat. 1 3 (1 8 7 1 ). A lth o u g h t h ere w as

a f ed eral h ab eas statu te b e fo r e 1 8 7 1
, it w as in itially m u ch m o re lim ited th an t h e m o d ern statu te an d h as b een am en d ed m an y t im es sin ce. S ee g en era lly Fed era l Ha bea s Co rp u s , 83 H a r v. L

. R ev

. 1 0 38
, 10 4 2

– 9 3 (1 9 7 0) (p ro v i d i n g an o v erv iew o f th e h isto ry o f f ed eral h ab eas co rp u s). T h ese am en d m en ts in clu d e leg islatio n i n 1 9 6 6 in sertin g l an g u ag e th at th e Su p rem e Co u rt n o ted “ seem [ed ] sp ecif ically to co n tem

plate th e po s sib ility

o f relief o t

h er th an im

m ed iate release f

ro m p h y sical cu sto d y .” Ca ra f a s v. La Va llee

, 3 91 U.S. 2 3 4
, 2 3 9 (1 9 6 8 ) (d iscu s sin g th e 1 9 6 6 am en d m en t p ro v id in g f

o r “ release f

ro m cu sto d y o r o th er rem ed y ”); see a lso 2 8 U.S.C. § 2 2 4 3 (p ro v id in g fo r d i sp o s itio n of h ab eas cases “ as law an d j u stice
req u ire”).N E T T L E S V

. G R O U N D S 40

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

, 562 U.S. at 521. None of these c ases f

ocuses on limitations on habeas claims. I nstead, each of these c ases deals with limitations o n actions broug ht under § 1983. S

ee 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 reg arding h abeas
cases, r ea d in contex t, support the majority ’s reading of the

cases. F or instance, the majority cites Muham m a d ’s
statement that the claimant “raised no claim on which h abeas relief could have been g ranted on any r ecog niz ed theory ,” a nd that the relief he soug ht would “ n ot necessarily ” have affected the d

uration of h is confinement, to arg ue that h abeas is not available for claims u n less they necessarily challeng e the duration of con f

i n e m e nt. Pr. O p. at 13; Muhammad

, 540 U.S. at 754–55. B ut in Muhammad

, the lower court h ad “ex p r e ssly found or assumed that no g ood-time credits were eliminated by the prehearing action Muha m m a d called in question.” 5 40 U.S. at 754. I n other wor d s , t h e re was not

even the possibility o f speedier release if Muhammad prevailed. Muhammad soug ht only compe nsatory a nd punitive damag es for an alleg ed wrong ful disciplinary action. Id. at 753. Muhammad

thus does not sug g est any thing at all about a case i n which the duration of a prisoner’s confinement might

be affected by

a prisoner’s claim.

Skinner a nd Dotson a

re similarly indeterminate, at b est,

as to potential limitations on habeas jurisdiction. B oth cases

concern wheth e r a claim “may ” be broug ht via § 1983, not whether it “must” b e so broug ht because habe a s is unavai l a ble. Skinner

, 562 U.S. at 524; Dotson
, 544 U.S. at 82. Notably

, Dotson
, in ex plaining why the § 1983 c l a i ms there a t issue could g o f

o rward, r eprised the Preiser standard: “B ecause neither p risoner’s claim would necessarily s p ellN E T T L E S V

. G R O U N D S 41

speedier release, neither lies at ‘the core of habeas corpus.’” Dotson
, 544 U.S. at 82 (quoting P reiser
, 411 U.S. at 4 89 ). Dotson did not say , any more than d id Preiser
, that because of the character of the prisoner’s claim, they w ere outside the scope of habeas corpus altog ether.

Skinner confirmed that limitation on t h e observation in Dotson reg arding h abeas, stating that “ [ w] here the prisoner’s claim would not ‘necessarily spell speedier release,’

. . . suit
may b e brough t u n d er § 1983.” 562 U .S. at 525 (emphasis added). L ike the lang uag e quoted above in Muhammad

, the
statement that such claims may b e b roug ht via § 1983 does not sug g est that they

may not be also broug ht in habeas.

F urther, Boumediene v. Bush

, 553 U .S. 723 (2008), a case the majority does not mention, affirmatively indica t e d t hat habeas p etitions may be b roug ht for relief other than speedier release from c onfinement. Boumediene c o n s idered the core capacities that a tribunal must retain to maintain an adequate substitute for a writ of habeas corpus. Boumediene noted that while a c ourt “must have the p ower t o o rder the conditional release of an individual unlawful l y d etained[ ,]

. . . release need not be the e x clusive reme d y a n d i s not the appropriate one in every

case in which the writ is g r a nted.” Id. at 779.

The y ear after Boumediene

, and just t w o y e ars before Skinner

, the Supreme Court characteriz ed Dotson as holding that “prisoners who soug ht new hearing s for parole elig ibility and suitability need not proceed in h abeas” — wh i c h w ould be very odd phrasing if Dotson ’s import was that prisoners with such c laims cannot proceed in habeas. Dist. Attorney’s Off ice for Third Judicial Dist. v. Osborne

, 5 57 U.S. 52, 66 (2009) ( emphasis added). And throug h out these cases , t h e Court has asked c onsistently w hether a claim “lies a t the coreN E T T L E S V

. G R O U N D S 42

of habe a s corpus,” (emphasis added) phrasing that, as I observed earlier, necessarily indicates there is some ar e a bey ond this “core” in which a habeas c laim may also lie. See,
e.g. , Dotson
, 544 U.S. a t 7 9 ( q u o t ing Preiser
, 411 U.S. at 487) (internal quotation marks omitted).

To counter all of this precedent, the majority opinion (and, in part, J udg e Hurwit z ’s concurrence) rely on three words in a Skinner footnote that could, out of contex t, sug g e st that habeas is limited to its “core.” Quoting the same Dotson
passag e discussed above, Sk i nner states that “ when a p r i soner’s claim w ould not ‘necessarily spell speedi e r release,’ that claim does not lie at ‘the c ore of habeas corpus,’ and may be broug ht, if at all, under § 1983.” 562 U.S. at 535 n.13 (quoting D otson , 544 U.S. at 82).

Perhaps the phrase “ if at all” could be read to sug g est that such claims may only be broug ht under § 1983, and therefore
may not be broug ht u nder habeas. B ut t h i s l ang uag e could also be read to refer simply to whether th e c laim may be broug ht a t all — i.e., whether the claim is otherwise viable. So, for ex a mple, a claim cannot be b roug h t “ a t a ll” under § 1983 i f t h e s t atute of limitations has r un, or if the procedural r equirements of the PL R A have not been complied with. Cf. D otson , 544 U.S. at 87–88 (Scalia, J
., concurring ) (enunciating a simila r c aveat). On that understanding

, the Skinner sentence means that o th e r w i se viable claims not at “the c ore of habeas corpus” may be broug ht u nder § 1 983

— not that they

must be.

Ambig uous dicta in a fo o tnote is not enoug h to resolve the precise boundaries of h abeas corpus and § 1983 — an issue the Supreme Cou r t h a s ex p licitly noted and left unresolved for more than four decades, and that the C o u r tN E T T L E S V

. G R O U N D S 43

several times has indicated does not lie at the boundary between claims that could result in earlier release an d t hose that will

. S

ee Preiser , 411 U.S. at 500. That same footnote,

as well as Dotson itself, asserts that the Court h as not

“ m ov[ ed] the line our cases draw,” confirming that ne i t h e r Dotson or Skinner reached any new conclusions a s to that line. 5 62 U.S. at 535 n.13 (quoting Dotson , 544 U.S. at 8 4).

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 permissibl e f o r h abeas actions to overlap so m e w h a t with claims properly broug ht under § 1983. The F ifth, Six th, and D.C. Circuits have held that there is some deg ree o f p e r missible overlap b etween § 1983 a nd habeas. S

e e , e. g

. , A a m e r v. Obama

, 742 F .3d 1023, 1 033 (D.C. Cir. 2014); Adam s 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. 2 0 0 6 ); Richmond v. Scibana

, 387 F .3d 602, 605 (7th C i r. 2004).

B

. I n addition to its reading of Supreme Court precedent, J udg e I kuta’s opi n i o n , in a discussion joined by only a p lurality o f the court, asserts that its position is consist e n t with c ong ressional intent. P r

. O p

. at 17–18. B ut that di s c u s s ion points to no lang uag e in the habeas statute supporting th e standard it announces today

. I nstead, it
sug g ests that by requiring one set o f procedures for § 1983 cla i ms under the Prison L itig a tion Reform Act of 1995 (PL RA), 42 U.S.C. § 1997e et seq. , a nd another set for h abeas petitions b roug ht pursuant to the Antiterrorism and Effective Death Penalt y Act of 1996 (AEDPA), 1 10 Stat. 1214,N E T T L E S V

. G R O U N D S 44

Cong r ess indicated its intent to have the two statutes g overn entirely separate reg imes. Pr. Op. at 18–19.

The ex istence of distinct sets of procedures does n ot t ell

us that Cong ress intended to limit e i t her procedure’s substantive scope. Rather, the evident intent was simply that
to use either statute, a litig ant must meet its pro c e d u ra l requirements.

Even if more could be made of the procedural dissimilarities between § 1983 and federal habeas corpus — which I do n ot think it can

— the plurality g ives n o reason to t h i n k that it is habeas that should be limited, r ather than § 1983. As I have noted, § 1983 h a s been th e f o cu s of all prior cases addressing

the overlap between the two.

The p lurality ’s reliance on the PL RA and AEDPA is also ahistorical. Preiser ’s discussion o f habeas a n d § 1983 was written in 1973, w ell before e ither the PL RA or AEDPA were enacted in the mid-1990s. Cong ress is g enerally assumed to be “tho r o u g hly familiar with” Supreme Court precedents when it leg islates. Edelman v

. Lynchburg Coll.

, 535 U.S. 106, 117 n.13 (2002) ( q

uoting N. Star Steel Co. v. Thomas

, 515 U .S. 29, 34 (1995)). I f Cong ress had intended to weig h in on the long standing discussion concerning the relationship between habeas and § 1983 via the PL RA, AEDPA, or both, it would surely have done so ex plicitly

, rather than rely ing on ju d ge s ’ ability to r ead tea leaves. A bsent 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

.

Mo re broadly

, the PL RA’s restrictions on prisoner suits demonstrate the haz ards of l i m i t i ng habeas corpus due toN E T T L E S V

. G R O U N D S 45

p o t e n t ial overlap with other remedies. The writ of habea s corpus is protected by the Constitution. See U.S. Const. art. I
, § 9, cl. 2. There is no such ex plicit protection for the remedy afforded by § 1983 (which, indeed, did not even ex ist until after the Civil W ar). A s the PL RA shows, Cong r ess can alter § 1983 at will, to make it more or less availa b le to particular g roups like prisoners. Rely ing on the ex istence o f alternative statutory remedies to justify narrowing the breadth of habeas thus may create g a ps t h a t w i d en over time a s Cong r ess a lters those remedies. This potential problem is made more likely if we r ead the ex istence vel n o n o f other
stat utory schemes to indicate Cong ress’s implicit intent to limit habeas’s scope. Such an arrang ement risks encroaching

on the “ g rand purpose” of one o f the most important remedies of our leg a l order. B oumediene

, 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 h abeas for federal prisoners. Such prisone rs do not have recourse under § 1983. That statute applies only to violations undertaken “under color of” state law. 42 U.S.C. § 1983; s ee, 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 petitio n s by both federal and state prisoners. 5 N otably

, we have heard many

5 Sectio n 2 2 4 1(a) p ro v id es th at “ [w ]rits o f h ab eas co rp u s m ay b e g ran ted b y th e S u prem e C o u rt, an y j u stice t h ereo f

, th e d istrict co u rts a nd a n y circu it j u d g e w it h i n t h eir resp ectiv e j u risd ictio n s.” Sectio n 22 4 1 (c)
sp ecif ies f iv e categ ories o f p riso n ers elig i b l e f o r f ed eral h ab eas. S

eeN E T T L E S V

. G R O U N D S 46

c l a i m s b y federal prisoners p etitioning under § 2241 wher e

success “would not necessarily lea d t o [ their] immediate o r earlier release from confinement.” Pr. Op. at 25. I n Crickon

v. Thomas

, 579 F .3d 978, 982 ( 9 th Cir. 2009), for instance, J e rry Crickon, a federal p risoner, broug ht a habeas petit i o n challeng ing the B OP’s determination that he was categ orically inelig ible for an early release incentive prog ram d ue to h is p rior conviction. W e h eld the B OP’s fa i l u r e t o articulate its reasoning was a violation of the Administrative Procedure Act, and remande d f o r the B OP to reconsider Crickon’s elig ibility

. I

d. at 988–89. J ust as i n D o t son , “[ s ] u c c e ss for [ Crickon]

. . . mean[ t] at most new elig ibility revie w

. ” 5 44 U.S. a t 82. B ut that was no obstacle to Crickon’s habeas petition.

I n Close v. Thomas

, 653 F .3d 9 7 0 (9th Cir. 2011), we heard a similar challeng e broug ht b y a federal prisoner under § 2241. Christopher Close, the petition e r , challeng ed the criteria used to rank prisoners o n a wa i t list f or a d rug treatment prog ram, because admission to the prog ram could

s p e e d h is elig ibility for early release. Id. at 972–73. As t h e opinion noted, id. at 975, the potential acceler a t i o n o f participants’ release was discretionary — i n o t her words, admission to the prog r am “ would not necessaril y spell immediate or speedier release.” Dotson
, 544 U.S. at 81. B ut

2 8 U.S.C. § 2 2 4 1 (c)(1 )– (5 ). T h e im p o rtan t sectio n

f o r p resen t p u rp o ses is 2 2 4 1(c)(3 ), w

h ich m ak es av ailab le w

rits o f h ab eas co rp u s to bo th f ed eral an d state p riso n ers “ in cu sto d y in v io latio n o f th e Co n stitu t io n o r law s o r treaties o f th e Un ited States.” Sectio n s 2 2 4 4
, 2 2 5 4
, an d 2 2 5 5 sp ell

o u t so m e su

b stan tiv e d if

f eren ces in th e w

rit’ s sco p e f

o r state an d f

ed eral
p riso n er s , a s w ell as d if

f eren ces i n th e p ro ced u res req u ired f o r s tate an d f ed eral p riso n ers to o b tain th e w rit. T h o se d if

f eren ces are n o t relev an t to th e case at h an d

.N E T T L E S V

. G R O U N D S 47

Close’s c laim was allowed to proceed via h a beas petition nonetheless. See also R o driguez , 2016 W L 3003423, at 4.

As Crickon

, Close

, and Rodriguez indicate, federal prisoners have been able to bring habeas claims alleg ing procedural defects to the parole process whose resolution would n ot necessarily r esu l t in a speedier release. This practice is long standing

. S e e , 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, 23 9 (9 t h Cir. 1978) (per curiam) (holding that a federal prisoner’s chall e ng e to a parole board’s failure to g ive “serious consideration” to an application for parole is properly broug ht via habeas corpus).

Such cases will, presumably

, con t i n u e to be allowed, a s there is no alternative statutory r emedy f or federal prisoners, and so n o p o ssibility of statutory overlap. B ut the m a j o r i ty opinion points to n o statutory lang uag e or precedent that
sug g ests a

ny difference in the substantive scope of h abeas between federal and state prisoners for alleg ed constitutional violations. Nor d oes that opinion otherwise ex plain why the reach of § 2241(c) for federal prisoners should differ from the reach of the same statute for state prisoners.

* * *

F or all the reasons discussed, I woul d h o l d that h abeas
corpus relief is a v ailable to any claimant whose success “could potentially affect the d u r at ion of their confinement.” Docken

, 393 F .3d at 1031 (emphasis omitted). Such an approach is just as practically f easible as th e s t a n d a rd in theN E T T L E S V

. G R O U N D S 48

majority opinion. I n p articular, it d oes not rely on the “probabilistic analy sis” that opinion rejects. Pr. Op. at 22.

My approach w o u ld, to be sure, permit some overlap bet w e e n habeas and § 1983, althoug h this case does not require us to decide the ex act ex tent o f that overlap. B ut such

o v erlap is not cause for concern. To succeed under e i t h e r statute, prisoners will have to conform with the requisite procedures. The state has g iven us no reason that it would be better off in g eneral if cases like this one were broug ht under § 1983. I f any

thing

, state g o vernments usually arg ue for

more cases to be broug ht in habeas rather than under § 1983,

as federal habeas petitioners, unlike plaintiffs under § 1983,

are usually r equired to e x haust state judicial remedies, see Osborne

, 4 23 F .3d at 1053, a n d f e deral habeas courts a

re often required to defer to the results of these state proceeding s. See 28 U.S.C. § 2254(d).

Notably

, the rule adopted by the majori t y w i l l not “g ive needed clarity to state prisoners.” Pr. Op. at 22. T h at rule departs from preced e n t and statute, and will g enerate

co n f u s i on and delay a mong those seeking adjudication o f their claims w ho mistakenly choose the wrong vehicle. W h en it comes to alleg ed procedural violations in particular, the majority ’s announced rule w o u l d s eem to sweep up a sig nificant number of claims within its r each, creating a trap for unwary prisoners who h ave n ot satisfied the P L RA’s distinct requirements. See 42 U.S.C. § 1997e.

I n short, the majority ’s standard, inconsistent with statute and pr e c e d e n t, will unnecessarily create problems for y ears to come. I

therefore dissent.