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, Respondent-Appellee

. N o. 12-16935

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

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

M A T T A J U

A N S A N T O S , Petitioner-Appellant

,

v

.

K. H O L L

A N D and J E F F R

E Y B E A R

D , Respondents-Appellees

. N o. 13-15050

D.C. No. 1:12-cv-01651- L J O-GSA

OPI NI ON

A ppeal from the United States District Court for the Eastern District of California L awrence J . O’Neill, District J u dg e, Presiding

Arg ued and Submitted October 6, 2014—San F rancisco, CaliforniaN E T T L E S V

. G R O U N D S 2

F iled May 28, 2015

B efore: Sandra S. I

kuta, N. Randy

Smith, and Mary H. Murg u ia, Circuit J udg es.

Opinion by

J udg e I k uta; Partial Concurrence and Partial Dissent by J udg e Murg uia

SUMMARY *

Habeas Corpus

The panel affirmed the district co u r t ’s dismissal o f California state prisoner D amous Nettles’s ha b eas corpus petition seeking ex pung ement of a prison rules v i o lation report and restoration of thirty d ay s o f post-conviction credit; and reversed the district court’s dismissal of California state prisoner Matta J uan Santos’s habeas corpus petition claiming that the process by which the prison validated his g ang involvement violated his due process rig hts and seeking release from his resulting confinement in the security housing unit.

Apply ing Skinner v. Switzer
, 131 S. Ct. 1289 (2011), the panel held that a claim challeng ing prison disciplinary
pr o c e e d i ng s is c o g niz able in habeas only if it will “necessarily spell speedier r e lease” from cu stody

, meaning that the relief soug ht w ill either terminate custody

, a ccelerate the future date of release from custody

, or reduce the level o f

* 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

custody ; a

nd that t o the ex tent this court’s prior decisions held that a claim is cog niz able in h a b ea s if success on the claim i s l i kely to, or has the mere potential to, affect the leng th of a petitioner’s con f inement, they a

re overruled a s irreconcilable with Skinner.

The p anel held th a t b e c ause neither the ex pung ement o f the rules violation report nor restoration o f the lost g ood-time credits would n ecessarily accelerate the future d a te o f Nettles’s r e l ease from custody

, his claim is not cog niz able under the habeas statute.

T h e p a nel wrote that it remains bound by the determination in Bostic v. Carlson

, 884 F .2d 1267 (9th Cir. 1989), that there is habeas jurisdiction ov er a claim that

wo u l d result in release from disciplinary seg reg ation to the
g eneral prison population. The panel therefore h eld that the district court erred in dismissing Santos’s petition that seeks

a remedy – ex pung ement of the g ang val i d ation a nd release from the security housing unit to the g eneral population – that

can fairly be described as a quantum c h a n ge in the level o f custody

. The panel remanded for further proceeding s on the merits of Santos’s claim.

J udg e Murg uia concurred in p art and d i s sented in part. She disag r eed with th e majority that a footnote of dicta in Skinner d efines the scope of h abeas jurisdiction and abrog ates the decisions in Bostic (habeas jurisdiction is proper when a prisoner seeks ex pung ement o f a disci p l inary finding if “ex p u ng e ment is likely to accelerate the prisoner’s elig ibility for parole”), and Docken v. C h a s e , 3 93 F .3d 1024 (9th Cir. 2004) (habeas jurisdiction is proper when a prisoner’s challeng e to parole procedures “ could p o t e ntially affect the duratio n o f

. . . confinement”). She would reverse a ndN E T T L E S V

. G R O U N D S 4

remand in both cases b e cause Santos and Nettles have e ach asserted a cog niz able habeas c laim under the law o f this circuit.

COUNSEL

Monica Knox (arg

ued), Assistant F ederal Defender; Heather W illiams, F ederal Defender, Sacramento, California, fo r Petitioner-Appellant Damous D. Nettles.

Peg g y Sasso (arg

ued), Assistant F edera l Defender; Heather W il l iams, F ederal Defender, F resno, California, for Petitioner-Appellant Matta J uan Santos.

Andrew R. W oodrow (arg ued), D eputy Attorney General; Kamala D. Harris, Attorney General of California ; J ennifer A. Neill, Senior Assistant Attorney General; Phillip J

. L indsay

, Supervising Deputy Attorney General, Sacramento, Californi a , f

or Respondent-Appellee Randy G rounds, W a r den.

Amy D aniel (ar g ued), D eputy Attorney General; Kamala D

. Harris, Attorney General of California; J e n n i fer A. Neill, Senior Assistant Attorney General; J essica N. B lonien, S u p e r v i s i n g D e p u ty A t t o r n e y G e n e r al

, S a c ra m e n t o , California, fo r R e s p o n d e n t s

- A p pellees K. Holland and J effrey B eard.N E T T L E S V

. G R O U N D S 5

OP INION

I KUTA, Circuit J udg e:

The two appeals c onsolidated in this opinion require us to identify the appropria t e s tandard for determining whether a cla i m i s cog niz able under the federal habeas statute. 1 Apply ing Skinner v. Switzer
, we conclude that a claim challeng ing prison disciplinary proce e d ing s is cog niz a ble in habeas only if it will “ necessarily spell speedier release” from custody

, meaning that the relief soug ht will either terminate custody

, accelerate the future date of release from custody

, o r reduce the level of custody

. 131 S. Ct. 1 2 89, 1299 n.13 (2011) ( emphasis added) (internal quotation m arks omitted) (citing W i lkinson v. D otson , 544 U.S. 74, 86 (2005) (Scalia, J
., concurring )). To the ex tent our prior decisions held that a claim is cog niz able in habeas if success o n the claim is likely to, or h as the mere potential to, affect the leng th of a petitioner’s confinement, they a r e overruled as irreconcilable with Skinner. See Blair v. Martel

, 645 F .3d 1151, 1157 (9th Cir. 2011).

I

Damous Nettles and Matta J uan Santos, both prisoners in C a l ifornia state prisons, a p peal the district court’s dismis s al of their habeas petitions.

A

I n 1 990, Nettles was convicted in California of attempted first deg ree murder with use of a firearm, and other offenses.

1 T h ese ap peals are o rd ered co n so lid ated f o r pu rp o ses o f th is d isp ositio n

.N E T T L E S V

. G R O U N D S 6

The v ictim was a woman w ho had f iled a co mplaint ag ainst Nettles’s br o ther. I n o rder to prevent her from testify ing

, Nettles took the victim down an a lley

, ordered her onto her h a n d s and k

nees, and told her “ You’re not g oing to tes t i f y ag ainst my brother. I ’m g oing to kill y ou.” Nettles then shot h e r t w i ce in the left ear and left her in the alley

. The v ictim did not die, but was seriously injured and disfig ured.

Nettles was sentenced to prison for a determinate term o f twelve y ears and a life term w ith the possibility o f parole for hi s convictions for attempted murder and dissuading a nd conspiring to dissuade a w itnes s f ro m attending or g iving testimony at trial. His minimum e lig ible parole date was October 19, 2005. An initial parole consideration h earing

was held in 2004. B efore that hearing

, prison staff had issued

some thirty

- nine rules violations reports (CDC F orm 1 15) to Nettles. These reports a r e issued for mi s c o n d u c t that “ is b elieved to be a violation of law or is not minor in nature.” Cal. Code Reg s. tit. 15, § 3312(a)(3). He also received

numerous citations for lesser ty pes of misconduct. See id. § 3312(a)(2) (noting that “documentati o n of minor misconduct” s h ould be “documented on a CDC F orm 128-A”). At his initial p a ro l e h e a ring in 2004, the B oard o f Prison Terms ( now the B oard o f Parole Hearing s, or B oard) 2 deemed Nettles to b e unsuitable f or parole and declined to set

a parole date. I t scheduled the nex t parole suitability h earing for 2006, but the date was postponed several times.

A f ter 2004, Nettles received seven additional r u les violations r eports. O n F ebruary 26, 2008, staff issued Nettles

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

a rules v iolation report f

or threatenin g t o s t ab 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 onvene d a s e c ond parole suitab i l i t y h e aring for Nettles. At the hearing

, the presiding commissioner first described the facts of Nettles ’ s crime, characteriz ing it as “one of the most atrocious and cruel acts I ’ve read” a

nd stating that Nettles’s motive was “ridiculously heinous.”

The commissioner then reviewed Nettles’s prior criminal history

. Nettles h ad a long string of convictions beg inning at ag e seventeen, and h ad been in and out of prison for o ffenses including possession of d

rug s, assault with a deadly weapon, battery on a peace officer, a nd r obbery

. N ettles was on parole for the robbery conviction when he committed the attempted murder for w hich h e was sentenced to life impri s o n m ent. T h e commissioner stated that Nettles’s leng thy c rimi n al history illustrated his inab i l ity to learn from prior imprisonments.

The commissioner nex t ex plained the hearing panel’s

concerns abo u t N ettles’s mental state and attitude about the crime. I n the hearing panel’s v iew, Nettles’s letter to the victim did not ex press true remorse. F urther, Nettles h ad not taken responsibility for his conduct and lacked insig ht t h at would enable him to chang e his behavior. The commissioner dis c u s s ed a May 2007 psy cholog ical report, which g ave Nettles “a rating of overall moderate likelihood to become i nvolved in a violent o ffense if released.” F inally

, t h e commissioner stated that Nettles was arg umen t a t ive a ndN E T T L E S V

. G R O U N D S 8

stubborn, “challeng e[ d] authority at e very g iven o pportunity ” and refused to restrain himself, as e videnced by his numerous rules violations. The c ommissioner noted the forty -six rules violation reports that had been issued to Nettles while h e was in prison. Nettles “cont i n u ed to display neg ative behavior while incarcerated,” and a s a r esult was p laced in seg reg ated housing

. Moreover, Nettle s h ad not taken any sig nificant steps to g ain skills to function o utside of prison. Neverthel e s s , the commissioner n oted some positive steps Nettles had taken, including a slig ht reduction in the number of rules violations reports issued to Nettles in recent y e ars.

The hearing panel concluded that Nettles was u nsuitable for parole b ec a u s e he “ still p ose[ d] an unreasonable risk o f dang er if r eleased from prison.” This f inding was “based on weig hing the considerations provided in the California Code of Reg ulations.” As a

uthoriz ed by the r eg ulations, id. § 2306, the commissioner made recommendations reg ardi n g “what steps may b e u ndertaken to enhance the possibility of a g rant of parole at a future h earing ,” id. § 2304, telling Nettles that “[ f] or nex t time, y o u certainly need to become and remain disciplinary

free.”

On J anuary 23, 2009, Nettles filed a habeas petition in the Superior Cou r t o f California claiming

, in relevant p art, that the 2008 r

ules violation report was illeg al, a n d that the disciplinary proceeding s held in connection wi t h the 2008

ru l e s v i o lation report v iolated his due process rig hts. The Superior Cou rt d enied the petition, concluding that Nettles failed to ex haust his admi n i s t r a t i v e r emedies concerning theseN E T T L E S V

. G R O U N D S 9

claims. 3 The California Court o f Appeal and California Supreme Court then summarily denied the petition.

On J u n e 10, 2 011, Nettles filed a habeas petition in federal court seeking

, among other thing s, “restorati o n o f
g ood time,” presumably r eferring to the loss of thirty day s o f post-conviction credits as a result of the 2008 disciplinary decision, and ex pung ement of the F ebruary 26, 2008 rules violation report. After b eing ordere d t o r espond, the state moved to dismiss the petition, a r gu ing that the court lacked ju r i s d iction to entertain the petition because the 2008 disciplinary decision d i d n ot impact the fact or duration o f Nettles’s c onfinement. Nettles opposed the motion, arg uing that the disciplinary decision impacted the duration of h is confinement becaus e it delay ed his parole hearing a nd constituted g rounds for future denial of parole.

The district court dismissed Nettles ’ s petition, holding that he c ould not show that ex pung emen t o f t h e 2008 rules violation report was likely to a ccelerate his e l i g ibility for parole. Nettles timely

appealed the district court’s decision.

B

Santos was convicted in 1996 under California Penal Code section 209(a) for participating in a kidnap-for-ransom scheme. He was sentenced to a term of life in prison with the possibility

of parole plus nine y ears.

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 10

After prison investig ators verified alleg ations that Santos

was a cu r rently active member of the Mex ican Mafia, a prison official validated the g ang -involvement determination

on F ebruary 10, 2011. See Cal. Code Reg s. tit. 15, § 3378. As a result of this g ang validation, Santos was removed from the g eneral p rison population a nd c o n fined in the se c u r i t y housing unit (SHU) indefinitely

.

Santos claims that the SHU is a “prison within a p r ison where prisoner[ s] are denied virtually all privileg es.” According to Santos, prisoners placed in the S H U s p e nd
approx imately twenty -two h ours per day in their cells, receive all meals in their cells, are denie d contact visits a nd phone
access, and are not allowed to pa rticipate in training o r education activities. Additionally

, a prisoner is inelig ible to

earn p ost-conviction credits under California Penal Code section 2 933(b) or p rog ram credit reductions under California Penal Code section 2 933.05 d u ring the ti m e the prisoner is placed in the SHU. Cal. Penal Code § 2933.6.

Santos administrati v e ly a ppealed his g ang validation. After his third and final adminis t r a t i v e appeal was denied, Santos filed a petition f

or a writ o f h a b e as corpus in the Superior Court of C a l ifornia arg uing

, among other thing s, that the alleg ations o f his g ang involvement were false, a nd that there w as no evidence supporting the g ang validation. Santos demanded that the prison ex pung e the g ang vali d a t i o n from his file and r elease him to the g eneral prison population. The Superior Court denied Santos’s p etitio n , finding that sufficient evidence supported the g ang val i d ation. The California Court of Appeal and California Supre m e C ourt summarily

denied the petition.N E T T L E S V

. G R O U N D S 11

On October 9, 2012, S a n t o s filed a petition for a w rit o f habeas corpus in f

e d eral court, arg uing that the g ang validation violated hi s d u e process rig hts because it was “based o n false, unreliable and insufficient information.” He
soug h t r elease from the SHU. T he district court dism i s s e d the petition o n the g round that Santos’s claims were not cog niz able u nder the f

ederal h abeas statute, as they concerned the co n d i t i o ns, rather than the fact or duration, o f his confinement. Santos timely a p pealed the district court’s decision.

I I

W e review de novo a district court’s decision to deny a petition for habeas corpus. Bailey v. Hill

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

B o th Nettles’s a

n d Sa ntos’s appeals r equire us to determine when we lack jurisdiction over a claim raised in a habeas petition. B y statute, federal courts must “entertain an application f

or a writ of h a b ea s corpus in behalf o f a person in custody pursuant to the judg ment of a State c ourt only on the g round that he is in c ustody in violation o f the Constitution or laws o r treaties of the United States.” 28 U.S.C. § 2254(a); see also 28 U.S.C. § 2241(c)(3). According to the Supreme Court, this lang uag e, as well a s “the common-law history of th e w r i t” makes clear “that the

essence of habeas corpus is a n attack by

a person in c ustody
upon t h e leg ality of that custody

, and that the traditional function of the writ is to secure release from illeg al custody

. ” Preiser v. Rodriguez , 411 U.S. 475, 484 (1973).N E T T L E S V

. G R O U N D S 12

I n the leading case o f P r e i ser , the Court considered whether prisoners who had lost g ood-time credits as a result of disciplinary p r o c e eding s could bring an action under 42 U.S.C. § 1983 4 f

or restoration of the credits on the g r ound that the proceeding s violated their due process rig ht s , o r whether they were limit ed to bring ing a habeas petition. Id.
at 476–77. The prisoners would have been entitled t o immediate release from p rison if their g ood-time c redits h ad been restored. Id.

B e cause analy

z ing this issue required an inquiry into the respective spheres of habeas and c ivil rig hts a c t ions, the Court f irst g ave f

e d e r a l courts g uidance as to what ty pes o f

cases sounded in habeas. Accordi n g t o the Court, “when a state prisoner is challeng ing the ver y f a c t or duration of his phy sical imprisonment, and the relief he seeks is a determination that he is entitled to immediate re l e a s e or a speedier release from that imprisonme n t , his sole federal remedy is a writ of habeas corpus.” Id. a t 500. The Court noted that the scope of habeas had evolved over the y ears. Id.
at 4 85. A person is deemed to be “i n c u s t o d y ” for purposes of habeas w hen a p erson is subje ct t o p arole, id

. a t 486 n.7 (citing Jones v. Cunningham

, 371 U.S. 236 (1963)), or even when the person is released on bai l o r o n the person’s o wn

re cog niz ance, id. (citing Hensley v. Municipal Court
, 411 U .S. 345 (1973)). I n addition, a prisoner is deemed to be seeking “release” from custody e v e n when the prisoner will
not g ain f r eedom, but will be released into a different form o f

4 Sectio n 1 9 8 3 p ro v i d es th at: “ Ev ery p erso n w h o , u n d er co lo r of

[state law ]

. . . su

b j ects, o r cau ses to b e su

b j ected

, an y c i t i z e n o f th e Un ited States or oth er p erso n w ith in th e j u risd i ctio n th ereo f to th e d ep riv atio n of

an y rig h ts, p riv ileg es, o r im m u n ities s ecu red b y th e Co n stitu tio n an d law s, sh all b e liab le to th e p arty in j u red . . . .” 4 2 U.S.C. § 1 9 8 3.N E T T L E S V

. G R O U N D S 13

custody

. See id. at 4 86 (stating that the writ of habeas corpus is available to o btain release from the wrong institution to the
correct institution) (citing Hu m p h rey v. Cady

, 4 0 5 U.S. 504 (1972) and In re Bonner
, 151 U.S. 242 (1894)). F inally

, “the federal h abeas corpus statute does not deny the federal courts power to fashion appropriate relief other than immediate release.” Id. at 487 (internal quotation marks o mitted). F o r instance, prison e r s can challeng e an u nlawful loss o f g oodtime cred i t s e ven if restoration of such credits “merely shortened the leng th of their confinem en t , rather than required immediate discharg e from that confinement.” Id.

Turning n ex t to the appropriate scope of § 1983, the Court ruled that w here prisoners c halleng ed the fact or duration o f their imprisonment, and soug ht immediate or speedier release from that imprisonment, they were precluded from bring ing that challeng e in a civil rig h ts action under § 1983. Id. at 500. The Court reasoned that a lthoug h “the literal terms of § 1983 mig ht seem to cover” claims that a pri s oner’s confinement violated the Constitution, id. at 489, there was, as t h e Court later put it, “ an implicit ex ception from § 1983’s otherwise broad scope for actions that lie ‘within the core of h abeas corpus,’” W

ilkinson v. Dotson
, 5 44 U .S. 74, 7 9 (2005) (quoting Preiser
, 411 U.S. at 487). B ecause Cong ress passed the more specific habeas statute, requiring ex haustion o f state remed ies, to cover state prisoners’ c onstitutional c halleng e s to their convictions a

n d sentences, any prisoner complaint ly ing at “the core of habeas corpus” had to be b ro u g ht b y

means of a habeas petition, not under § 1 9 8 3. Preiser
, 411 U.S. at 489–90. 5

5 Heck v. Hu mp h rey f

u rth er lim ited th e sco p e o f § 1 9 8 3
, h o ld i n g t h a t claim s f o r d am ag es th at n ecessarily im p ly th e i n v alid ity o f a co n v ictio n or

sen ten ce are co g n izab l e u n d er § 1 9 83 o n l y if th e p lain t if f p ro v es th at th eN E T T L E S V

. G R O U N D S 14

The Court then e x amined the prisoners’ claims in lig ht o f
t h e s e ruling s. B ecause the prisoners in Preiser broug h t a challeng e seeking r e l ief that would result in immediate release from prison, their claims “ fe l l s quarely within [ the] traditional scope of habeas corpus.” Id. at 487. B e cause the claims were “within the c ore of h abeas corpus,” that was the prisoners’ ex c lusive remed y , an d they were precluded from bring ing the action under § 1983. Id. at 487–88, 500.

Althoug h Preiser helps delineate the core of habeas, it did
not delineate the outer limits of h abeas jurisd i c t i o n , the question before us here. I ndeed, P reiser held this issue o pen, stating that “we need not in this case ex p lore the appropriate limits of h a b e as corpus as an alternative remedy to a proper action under § 1983.” I

d. at 500.

W e addressed this issue in cases following Preiser
, a nd made clear that habeas jurisdiction was a v a ilable only for claims that had some nex u s to shortening the le n gt h o f

c o n finement. W e did not, however, fully delineate the
contours of this nex us. I n Crawford v

. B e l l

, we held that habeas d id not ex tend to cha l l e ng es to the “terms a nd

con d i t i ons” of a prisoner’s incarceration, w here the appropriate r emedy would not include “release from

c o n f inement.” 5 99 F .2d 890, 891–92 (9th Cir. 1979). I n Bost i c v. C

a rlson

, w e held that a p r isoner could b ring a petition in habeas t o seek relief from various disciplinary

co n v ictio n o r sen t en ce h as b een rev ersed

, ex p u n g ed

, or d eclared in v alid

. 5 1 2 U .S. 4 7 7
, 4 8 6

– 8 7 (1 9 9 4 ). In estab lish in g th is “ f av o rab le term in atio n ”

ru le, th e Co u rt reaso n ed th at th e so rt o f actio n d escrib ed in Heck is m ost clo sely an alo g o u s t o t h e co m m o n

- law cau se o f actio n f o r m alicio u s p ro secu tio n , w

h ich req u ires “ term in atio n of th e p rio r crim in al pro ceed in g in f av o r o f th e accu sed .” Id

. at 4 8 4.N E T T L E S V

. G R O U N D S 15

decisions that resulted in “forfeiture of statutory g ood time o r

s e greg ation from the g eneral prison population,” where t h e relief was f

o r “ex pung ement of the incident f rom his disciplinary record” so long a s such “ex pung ement is likely
to accelerate the prisoner’s elig ibilit y for parole.” 884 F .2d 1267, 1269 (9th Cir. 1989). I n Ramirez v. Galaza

, we stated that a prisoner c ould not b r ing a habeas petition to seek

ex p unge ment of a disciplinary charg e where “a successful challeng e to a prison c ondition will n o t necessarily shorten the prisoner’s sentence.” 334 F .3d 8 50, 859 (9th Cir. 2003). I n D o cken v. Chase

, we held that p risoners could bring c laims in a habeas petition “challeng i n g a s pects of their parole

r e view” so long as success on the c laims “could potentially affect the d

u ration of their confinement.” 3 9 3 F.3d 1024, 1031 (9th Cir. 200 4 ) (emphasis o mitted). These cases tog ether establish that habeas jurisdiction is available only for claims that, if successful, would have some shortening effect

on the leng th of a person’s c u stody

. W e h ave not made clear, however, whether a claim h as to necessarily

, likely

, or merely potentiall y a ccelerate r elease from confinement to be
cog niz able in habeas.

I n Skinner v. S

witzer
, the Supreme Court ag ain confronted the q uestion, “[ w] h en may a state p risoner, complaining o f unconstitutional state action, pursue a civil rig hts claim under § 1983, and when is h abeas corpus the prisoner’s sole remedy ? ” Skinner

, 131 S. Ct. at 1298. I n Skinner

, the Court considered a prisoner’s lawsuit ag a inst a Tex as district attorney f

or f ailing to provide DNA testing the prisoner requested. Id. at 1 2 95. The Court c oncluded that the prisoner could assert that claim in a n action under § 1983 rather than in a petition for a writ of habeas corpus b e c a u s e a judg ment t h a t s i mply orders DNA tests will not necessarily imply theN E T T L E S V

. G R O U N D S 16

unlawfulness of the state’s custody or spell speedier release. Id. at 1293. 6

I n reaching this conclusion, Skinner relied on W ilk i n s on

v. Dotson
, an earlier Su p reme Court decision holding that prisoners could challeng e the retroactive application of parole
g uidelines under § 1983 because their c laims did not lie at the “core of h abeas corpus.” Dotson
, 544 U.S. at 82 ( i n t ernal quotation marks omitted). S k i n n e r ex p lained that “

Dotson declared

. . . in no uncertain t e r m s , t h at when a prisoner’s claim would n ot ‘necessarily spell speedier release,’ that claim d oes not lie a t ‘the core of habeas corpus,’ and may be broug ht, if at all

, under § 1 9 83.” Skinner

, 131 S. Ct. a t 1299

n .13 (emphasis added). Citing J ustice Scalia’s concurren c e in Dotson
, Skinner indicated that the Court had never “recog n iz ed habeas as the sole remedy

, or even a n available

one , where the relief soug ht would ‘ neither terminat[ e] custody

, accelerat[ e] the future date of release from custody

, nor reduc[ e] the level of custody .’” Id. at 1299 (emphasis added) (quoting Dotson
, 544 U .S. at 86 (Scalia, J
., concurring )). According ly

, Skinner adopted the line b etween

6 T h e Co u rt p rev io u sl y i n d i c ated th at a claim th at d o es n ot im p ly th e in v alid ity o f t

h e u n d erly in g co n v ictio n or “ n ecessarily ” af f ect th e d u ratio n

o f tim e t o b e serv ed

, is n o t a claim on w h ich h ab eas relief can b e g ran ted

. Mu h a m ma d v. Clo se , 5 4 0 U.S. 7 4 9
, 7 5 4

– 5 5 (2 0 0 4) (p er cu riam ). I n Clo se , th e S u

p rem e Co u rt lim i ted th e ap p l icab i lity o f Heck b y h o l d in g th at its f av o rab le term in atio n req u irem en t w as n o t ap plicab le, an d th e p riso n er

co u ld b rin g a § 1 9 8 3 claim , w h en th e p riso n er ch allen g ed ad m in istrativ e d eterm in atio n s th at d id n o t “ raise an y im p licatio n ab o u t th e v alid ity o f th e

u n d erly in g co n v ictio n ” o r “ n ecessarily ” af f ect “ t h e d u ratio n o f tim e to b e

serv ed ,” becau se s u ch a ch allen g e “ raised n o claim o n w h ich h ab eas relief

co u ld h av e b een g ran ted o n an y reco g n ized th eo ry .” Id

.N E T T L E S V

. G R O U N D S 17

§ 1983 c laims and habeas actions that it discerned in Dotson

. Id

. 7

Apply ing Skinner ’s rul i n g on the outer limits of h abeas jurisdiction, we stated tha t federal courts lack h abeas jurisdiction to conside r c laims for constitutional violations that do not necessa r i l y spell speedier release. See Blair

, 645 F .3d at 1157. I n Blair

, we considered whether a state prisoner c o u l d bring a habeas petition claiming that the California Supreme Court’s d e l a y i n p rocessing h is direct appeal deprived him of due process. Id. W e dismissed this claim, in part because we lacked habeas ju r i s d i c tion. I d. at 1157–58. We ex plained that Dotson and Skinner “disting uish between claims that necessarily i m p l y the invalidity of a conviction,” which must be broug h t in a habeas petition, a nd “claims for co n s t itutional violations that do not necessarily spell speedier release and thus do not lie at the core of h abeas
corpus, which may be b roug ht, if at all, under § 1983.” Id. at 1157. B e cause the prisoner’s claim did n ot challeng e the validity of his conviction or “ n ecessar i ly spell speedier

7 T h e d issen t arg u es th at w e are n o t b o u n d b y S kin n er ’ s d i stin ctio n b etw een claim s th at m ay b e b ro u g h t in a h ab eas actio n an d th o se th at m ay b e bro u g h t in

a § 1 9 8 3 claim

b ecau se S

kin ner ’ s in terp retatio n of Do tso n is w r o n g

. B u

t , o f co u rse, w e are b o u n d b y th e Su p rem e Co u rt’ s statem en ts an d its ch aracterizatio n o f its o w n p reced en t, reg ard less

w h eth er w e b eliev e o u r in terp retatio n o f its p reced en ts is su p e r i o r. Cf. Ha rt v. Ma s sa n a ri , 2 6 6 F.3 d 1 1 5 5 , 1 1 7 1 (9 th Cir. 2 0 0 1 ) (“ A d ecisio n of th e Su p rem e Co u rt w ill co n t

ro l t h at co rn er o f t

h e law u n less an d u

n til th e Su p rem e Co u rt itself o v erru les o r m o d if ies it. J u dg es o f th e in f

erio r co u rts

m ay v o ice th eir criticism s, b u t f o llo w it th ey m

u st.”); Ro d

rig u ez d e Qu i j a s

v. S h ea rso n/Am. Exp ress, In c. , 4 9 0 U.S. 4 7 7
, 4 8 4 (1 9 8 9 ) (“ If a p reced en t

o f th is Co u rt h as d irect ap p l icatio n in a case, y et ap p ears to rest o n reaso n s

r e j ected in so m e o th er lin e o f d ecisio n s, th e Co u rt o f A p p eals s h o u l d f o llo w t h e case w

h ich d irectly co n tro l s , leav in g to th is Co u rt th e p rero g ativ e o f

o v erru lin g its o w

n d ecisio n s.”).N E T T L E S V

. G R O U N D S 18

release,” we c oncluded that it “belong s in a § 1983 complaint,
not a habeas p etition.” Id. at 1157–58; see also Griffin v

. Gomez
, 741 F

. 3d 10, 17 & n .15 (9th Cir. 2014) (“Thoug h we had h eld that [ an order r equ i r i n g a chang e in c onditions o f

c onfinement] could issue on a habeas petition, the Su p r e m e Court [in Skinner

, 131 S. Ct. at 1299 n.13] h as sinc e h eld otherwise.”). But see Thornton v

. Brown
, 757 F

. 3d 834, 841 & n.4 (9th Cir. 2013) (stat i ng in passing that § 1 983 a nd habeas ma y p r ovide alternative means to challeng e prison conditions, and noting parenthetically that Skinner raised, but did not decide “the question whether ‘ habeas [ i s ] the sole remedy

, or e ven an available one,’ for certain ty pes of c laims (quoting Skinner

, 131 S. Ct. at 1 299) (alteration in orig inal)).

W e now reaffirm our statements in Blair and Griffin

, a nd hold that we are bound by the Court’s ex pr e s s statement in Skinner that relief is a vailable to a prisoner under the federal habeas statute only if success on the claim would “necessarily spell speedier release” f rom c u stody

, which Skinner
sug g ested would include termination of c ustody

, acceleration of the future date of r elease from custody

, or reduction of the level of custody

. See S

kinner

, 1 3 1 S

. C t. at 1 299 & n.13. 8 This conclusion is not o nly consistent with the plain lang uag e of Skinner and our o wn previous interpretations of that c ase, it is a lso consistent with the Court’s prece d ents and the

common law history of the writ. See Preiser
, 4 1 1 U

. S

. at 484–86; Dotson
, 544 U.S. at 8 5–87 (Scalia, J
., concurring ); Muhammad v

. Close

, 540 U .S. 749, 7 54–5 5 ( 2004) (per curiam) (holding that a priso n e r “raised no claim on which habeas relief could have been g ranted on a ny recog niz ed

8 T h e d issen t co m

p lain s th at o u r read in g o f S kin n er is “ strain ed ,” bu t ou r in terp retatio n is co n si s t e nt w ith th e i n terp retatio n ad op ted by t w o p rio r p an els. S ee Bla ir , 6 4 5 F.3 d at 1 1 57

– 5 8 ; Griffin , 7 4 1 F.3 d at 1 7 & n .1 5

.N E T T L E S V

. G R O U N D S 19

theory ” where the a d ministrative determinations he challeng ed neither raised an implication about the validity o f the underly ing conviction n or necessarily a f f e cted the duration of time to be served). A ccording ly

, we conclude that und e r S kinner

, in c ases involving challeng es to prison disciplinary proceedin gs , t he writ of habeas corpus ex tends only to claims that

, if successful, will “ necessarily spell speedi e r r e l e ase.” S

ee Skinner

, 131 S. Ct. at 1 2 99 n.13 (emphasis added). T o the ex tent our cases have indicated that
t h e writ of habeas corpus may ex tend to claims that, i f successful, would merely be likely to or have the potential to lead to a speedier release, they are superceded by the Supreme Court’s rulin gs

. S e e Miller v. Gammie
, 335 F .3d 889, 893 (9th Cir. 2 0 03) (“[ W ] here the reasoning or theory o f

our prior c ircuit authority is c learl y i r reconcilable with the reasoning or t h e o ry of intervening hig her authority

, a threejudg e panel should consider itself b o u n d b y the later a nd controlling authority

, and should reject t h e prior circuit opinion as having b een effectively overrul e d

. ”). Prisoners seeking to b ring other challeng es to p r i s o n conditions may have recourse to § 1983, which a llows t h e m t o bring c laims without ex hausting state remedies or facing the hig hly deferential standard of review applicable to habeas claims. 9

9 T h e clari t y p r o v i d ed b y S kin n er ’ s distin ctio n b etw een h ab eas an d § 1 9 8 3 actio n s n o t o n ly p ro v id es g u i d a n c e t o p riso n ers reg ard in g th e

co rr e c t f o rm o f actio n f

o r th eir claim s, b u t also reso lv es m u ch o f th e

u n d erstan d ab le co n f

u sio n of p riso n o f

f icials reg ard i n g w

h i ch p riso n er claim s are co g n i zab le in h ab eas. In th ese ap p eals, f o r in stan ce, th e state arg u ed i n f

av o r of in terp retin g S

kin n er as p reclu d in g h ab eas p etitio n s f or claim s th at d o n ot lie at th e co re o f h ab eas, ev en th o u g h s u ch a ru le ch an n els p riso n er claim s t o w ard s th e m o re f l ex ib le § 1 9 8 3 cau se o f actio n

. In S kin n er itself , b y co n trast, t

h e state to o k

th e o p p o site p o sitio n , u rg in g th at an actio n

raisin g a d u e p ro cess claim relatin g to DNA testin g w as atN E T T L E S V

. G R O U N D S 20

I I I

W e now apply the se principles to the habeas p e titions filed by Nettles and Santos.

A

Nettles seeks two f

orms of relief

. F irst, h e seeks

ex p ung ement of the F ebruary 26, 2008 r ules violation report for threatening to stab a corrections officer. Second, he seeks restoration of the thirty d ay s of post-conviction c redit that

were lost based o n a f

inding that he was g uilty of the alleg ed

r u l e s violation. W e must d etermine whether e ither of these forms of relief will “necessarily spell speedier release” from custody

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

1

I n order to understand Nettles’s a rg uments that both claims are cog n iz able in h abeas, it is first necessary to r eview certain aspects of California’s parole sy stem

. I f a prisoner, like Nettles, has been g iven a life sentence with the possibility of parole, the earliest date on which s u c h a prisoner may be released on parole is terme d the “ minimum elig ible parole date.” Cal. Code Reg s. tit.15, § 2000(b)(67). This date is set by statute, and the California Department o f Corrections is responsible for calculating it. Id. § 2400.

One y ear before a prisoner reaches the minimum elig ible
p a r ole date, the B oard (or a panel of two or m o r e commissioners) meets w ith the inmate, and sets a p a r ole

“ t h e co re o f th e crim i n al p ro ceed in g itself ” an d h ad to b e b ro u g h t in h ab eas. 1 3 1 S.Ct. at 1 2 9 9 n .1 3 (q u o tin g o ral arg u m en t tran scrip t).N E T T L E S V

. G R O U N D S 21

release date “unless it determines th at the g ravity ” of the prisoner’s offenses “is such that consideration of the public safety requires a more leng thy period of incarceration.” Cal. Penal Code § 3041(b); s ee a lso Cal. Code Reg s. tit. 15, § 2281(b) (listing information considered in determin i n g whether a prisoner is suitable for release on parole). I f the B oard decides not to set a p arole release date, the B oard will schedule the n ex t hearing f or a period ran gi n g f

r o m three to fifteen y ears , depending on statutory criteria. Cal. Penal Code § 3041.5(b)(3).

I f the B oard determines that th e prisoner is suitable for parole, it will calculate a parole date in the manner r equired by the reg ulations. Cal. Code Reg s. tit. 15, §§ 2289, 2317. F irst, the B oard calculates a base term, using a matrix set out in the reg ulations. Id. §§ 2282, 2403. Among other factors, the B oard may consider post-conviction credit accrued by the
p risoner for time served, but “[ i] n no case may post conviction c redit advance a release da t e e a rlier than the minimum elig ible parole date.” Id. § 2290(a). After the base
term h as been determined, the prisoner’s post -c onviction credits are subtracted to determi n e the adjusted term. Id. § 2411(a). I f this calculation establishes that the prisoner has served time equal to or g r e a t er than the adjusted term, the prisoner is entitled to release. Id. § 2289.

2

Nettles ar gu e s that e x pung ing the 2 008 rules violation report from his record is reasonably l i k e l y to accelerate his release. He a

rg ues that u nder California law, the B oard “ shall normally set a parole release date” unless the B oa r d d e termines that “the inmate c onstitutes a current threat to p u b lic safety .” See In re Lawrence
, 190 P.3d 535, 546, 5 5 3N E T T L E S V

. G R O U N D S 22

(Cal. 2008) (internal quotation marks omi t t e d ). Nettles
arg ues that w ithout the 2008 rules violation o n his record, he would b e a b l e to present the B oard fifteen y ears f ree of any

a c t i ons relating to drug s or violence, and this would h a v e

some effect in accelerating his r elease. W hile acknowledg ing that the 2009 hearing panel mig ht not have found him elig ible for parole, even without t h e 2 008 rules violation report, Nettles claims that at a m inimum, the B oard would have scheduled the nex t parole suitability hearing at an earlier date,

or that Nettles would be able to a c c e lerate the nex t h earing due to a “chang e in circums t an c es.” Cal. Penal Code § 3041.5(d). F urther, Nettles claims that the ex istence of the 2008 rules violation report on his record will detract f rom the B oard’s cons i d eration of his parole suitability for y ears to

come. B ecause the e x pung ement relief Nettles requests will prevent these roadblocks to pa r ole, Nettles contends his claims are cog

niz able in habeas.

W e r e ject these a

rg umen t s , because the effect of an

ex p ung emen t of the 2008 rules violation report is too attenuated to meet the Skinner standard. While the 2 008 rules violation report w ill likely hav e some effect o n the B oard’s consideration, there is no basis for concluding that the

ex p ung ement of this report from the record will “necessarily spell speedier release” for N ettles. See S kinner

, 131 S. Ct. at 1299 n .13. Nor will i t n e c e ssarily terminate Nettles’s custody

, accelerate the future date o f his release, or reduce his level of custody

. See id. The effect of a rules violation on parole suitability is a mat t e r o f state law or reg ulation, and, under California law, a rules violation is merely one factor the p arole board considers to determine whether a prisoner “constitutes a current thr e at to public safety ,” Lawrence
, 190 P.3d at 5 53; it is not determinative, see Cal. Code Reg s. tit. 15, § 2 281(b) (directing the parole board to c onsider “[ a ] llN E T T L E S V

. G R O U N D S 23

relevant, r eliable information” in dete r m ining suitability for parole). Here, the B oard considered a rang e o f relevant factors b earing on Nettles’s f uture dang erousness, including hi s i n ability to learn from prior imprisonments, his lack o f insig ht and r e m orse reg arding his crimes, and his
arg umentative and stubbor n attitude. Even if successful, Nettles “will not necessarily shorten t h e leng th of his confinement” because “[ t] he parole board w i l l s t ill h ave the

a uthority to deny

. . . parole on the basis of a n y o f t h e g rounds p resently available to it in e valuating such a request.” See Ramirez
, 334 F

. 3d at 859 (first alteration in orig inal) (internal q

uotation marks o mitted). As Close p o i nted out,

even w hen a challeng e t o p rison d isciplinary proceeding s

“ may affect t he duration of time to b e served (by bearing on the awa r d o r r evocation of g ood-time credits),” where “ it is
not necessarily so,” a challeng e to such p roceeding s “raise[ s]

no claim on which habeas relief c ould have been g ranted.” 540 U.S. at 754–55 (emphasis added). Therefore, this claim is not cog niz able in habeas.

Nettles also arg ues that a restoration o f p ost-conviction credits would have an effect on the duration of his confinement. W hile he acknowledg es that restoring the postc o nviction credits would not impact his minimum elig ib l e p a r o l e date, w hich had already passed at the time he was depri ved of the credits, Nettles contends that restoration o f the credits will r e duce the term he must serve before being released, once the B oard determines he is elig ible for parole and sets a term for his release.

Ag a in, we reject this arg ument. Althoug h the loss o f post-conviction credit could lead to a long er term u n der some circumstances, the effect in Nettles’ s case is far too attenuated to meet the standard set forth in Skinner. F irst, theN E T T L E S V

. G R O U N D S 24

B oard has n o t y et found Nettles to be suitable for parole, a nd it is unknown whether the B o ard will do so at the nex t parole hearing

. I f Nettles is eventually found suitable for parole, a nd
a term is calculated, a d eprivation of post-conviction credits

c ould affect his release date only if the base term ex cee d e d the time already served. See Cal. Code Reg s. tit. 15, § 2289. W it h o u t knowing how many y ears Nettles will serve before the B oard finds him suitable for p arole or t h e l e ng th of his base term, we cannot conclude that restoration of t h e lost
g ood-time c redits would necessarily affect the d u ration o f Nettles’s confinement if a n d w hen t h e B oard finds him suitable for parole.

B e cause neither e x pung ement of the 2008 r ules violation report nor restoration of the lost g ood-tim e c r e dits would necessarily accelerate the future date of Nettles’s release from custody

, we hold that his c laim is not cog niz a bl e u n d e r the federal habeas statute. See Skinner

, 13 1 S. Ct. a t 1299 & n.13.

B

W e nex t turn to Santos’s claim seekin g e x pung ement o f the g ang validation from his record and release from the SHU
to the g eneral prison population. I f successful, Santos’s claim would result in immediate release from the SHU, but would not result in immediate release from prison.

W e have p reviously held tha t “ [ h] abeas corpus jurisdiction is also avail a b l e for a prisoner’s c laims that he has b e e n subjected to g reater restrictions of his liberty

, such

as disciplinary seg reg ation, without due process o f l a w

. ” Bostic
, 884 F .2d at 1269. The Seventh Circuit has similarly concluded:N E T T L E S V

. G R O U N D S 25

I f t h e prisoner is seeking what can fairly be described as a quantum chang e in the level o f custody —whether out r i gh t fr e e d o m , o r freedom subject to the limited r eporting a nd fin a ncial constraints of bond or parole o r probation, or the run of the prison in contrast to the approx imation to solitary confinement that is disciplinary seg reg ation—t hen h abeas corpus is his remedy

.

Graham v. Broglin

, 922 F .2d 37 9
, 3 8 1 (7th Cir. 1991). I n reaching this conclusion, G raha m d isting uished c halleng e s seeking release from one ty pe of custody to a

nother from

cases challeng ing p rison conditions. See id. (stating that if a prisoner is “seeking a d i f f erent prog ram or location o r environment, then h e is challeng ing the conditions r a ther than the fact of his confinement and his remedy is u nder civil rig hts law, even if, a s will u sually be the case, the prog ram o r location or environment that he is challeng ing i s more restrictive than the alternative that he seeks.”).

W e are b o u nd by our ruling in Bostic
, because the Supreme Court’s case law is n ot “clearly irreconcilable” with

our earlier determination that we h a v e habeas jurisdiction

over a c laim that would r esult in release from disciplinary
seg reg ation to the g eneral priso n p o p ulation. See Gammie
, 335 F .3d at 893. Th e C o u r t has long indicated that a prisoner’s c l ai m for release f rom one form of custody to another, less restrictive form of custody

, can be broug ht in a habeas petition. See Skinner

, 131 S. Ct. at 1299 (sug g esting that habeas was available where the relief sough t w ould reduce the level o f custody ) ; Preiser
, 411 U.S. at 486 (stating there is habeas jurisdict i o n f or claims seeking release on parole, b ail, or on one’s own r ecog niz ance); see also GarlotteN E T T L E S V

. G R O U N D S 26

v. Fordice

, 515 U.S. 39, 47 (1995) (prisoner’s claim seeking speedier release from imprisonment to parole was cog niz able in habeas). And the C o u rt has not directly addressed the
qu es t i on w hether a challeng e to the deg ree of constraints in prison (such as a release from a d m inistrative or disciplinary

s eg reg ation) is a claim seeking release f rom custody

, or merely a challeng e to conditions of confinement. See Close

, 540 U.S. at 751 n. 1 ( d eclining to rule on t h e q u e s tion whether a prisoner mig ht h av e a habeas claim to challeng e “special d isciplinary confinement for infraction o f prison rules”); see a lso Dotson
, 5 4 4 U .S. at 86 (Scalia, J

. co n c u r r i n g ) ( s u g g esting that “permissible habeas relief” could i n c l u de a “quantum chang e in the level of custody ”) (citing Graham

, 922 F .2d at 381) )

. According ly

, we remain bound by the determination i n Bostic that a prisoner can seek

ex p ung ement of a

n incident from his disciplinary record when that would lead to speedier r elease f r o m disciplinary
seg reg ation. 1 0 See Bostic
, 884 F

. 2d at 1 269. As sug g ested in Graham

, however, a prisoner w ho is not s e e king a quantum chang e in the level of c u s t o d y , such as release from disciplinary seg reg ation to the g eneral p r i s o n population, o r

10 A f ter co n clu din g it h ad n o n eed to ad d r e s s t h e v alid ity o f an o rd er releasin g a p riso n er f

ro m d iscip lin ary seg reg atio n , G r i ffin n ev erth eless

n o ted in p assin g th at S

kin n er n ow p reclu d e d su ch an o rd er f ro m i ssu in g in a h ab eas p etitio n

. S

ee Griffin

, 7 4 1 F.3 d at 17 –1 8 & n n

. 1 4

– 15

. W h i le

w e ag ree w i th G riffin ’ s co n clu sio n th at S kin n er p reclu des a p riso n er f ro m ch allen g in g co n d itio n s of co n f in em en t in h ab eas, w e d isag ree w i th Griffin ’ s ex ten sio n o f

th is ru l e to p reclu d e h ab eas ch allen g es t o q u an tu m ch an g es in lev els o f c us t o d y

. B ecau se Griffin u ttered th i s o v erly restrictiv e g lo ss o n S

kin ner “ casu ally an d w ith o u t a n a l y s i s,” an d “ in
p assin g w ith o u t d u e c o n sid eratio n o f t h e altern ativ es” as “ a p relu de to

an o th er leg al issu e th at co m m an d [ed ] th e p an el’ s f

u ll atten tio n ,” it is n o t b i n d i n g p reced en t in ou r circu it. In re W a l– Ma rt W a ge & Ho u r Emp ’t Pra ctices Litig

. , 7 3 7 F.3 d 1 2 6 2
, 1 2 68 n

. 8 (9 th Cir. 2 01 3 ); see a lso In re Ma g n aco m W

ireless, LLC , 5 0 3 F.3 d 9 8 4, 9 9 3

– 9 4 (9 t h Cir. 2 00 7 ).N E T T L E S V

. G R O U N D S 27

release from prison o n b o n d

, parole, or probation, but is merely “seeking a different progr a m o r location o r environ m ent” even if “the prog r am or location o r environment that he is challeng ing is more restrictive than the alternative that he seeks,” does n ot meet the requirement in Skinner

. 1 1 See Graham , 922 F .2d at 381.

Here, Santos claims that the p rocess by which he was validated as a g ang member violated his due process rig hts, and, as a r esult of this unconst i tutional validation, he was confined in the SHU, which is a disciplinary seg reg ation facility imposing a g reater quantum o f custody

. The remedy Santos seeks of ex pung ement of the g ang validation f rom his record and release from the SHU to the g eneral prison
p opulation, “can fairly be described as a quantum chan ge i n the level o f custody .” See id. at 381. Additionally

, success

on his claim w ould result in his immediate release from the

11 Prio r to S

kin n er , th ere w as a circu i t sp lit o v er “ th e q u es t i o n of th e p ro p riety o f u sin g a w

rit o f h ab eas co rp u s t o o b tain rev i ew o f th e

co n d itio n s o f co n f

in em en t, as d istin ct f

ro m t h e fa c t or len g th of

co n f in em en t.” S

p en cer v. Ha

yn es , 7 7 4 F.3 d 46 7
, 4 7 0

– 7 1 & n .6 (8 th Cir. 2 0 1 4 ) (q u o tin g Bell v. W o l fish

, 4 4 1 U.S. 5 2 0
, 5 2 6 n

. 6 (1 9 7 9 )). A s

ex p lain ed in S

p en cer , t h e D.C., Seco n d

, T h ird

, Fo u rth

, an d Six th Circu its

“ f irm ly [sto o d ] in th e cam

p o f allo w in g co n d itio n s- o f

- co n f i n em en t claim s to b e b ro u g h t in t

h e h ab eas co rp u s co n tex t,” w h ereas th e E i g h th

, Fif

th

, Sev en th

, Nin th

, an d T en th Circu its h eld t h at h ab eas p etit io n s are n o t “a p p ro p riate p ro ced u ral v eh icles b y w h ich to rem ed y co n d i tio n s- ofco n f in em en t claim s.” Id

. S

kin n er g o es a lo n g w ay to w ard s reso lv in g th is circu it sp lit b y h o ld in g th at reli e f i s av ailab l e to a p riso n er u n d er th e f ed eral h ab eas statu te o n ly if su ccess o n th e claim w o u ld “ n ecessarily sp ell
sp eed ier release f

ro m cu sto d y ,” i n clu d in g term in atio n o f c u sto d y , acceleratio n o f th e f

u tu re d ate o f release f

ro m cu sto d y , o r red u ctio n of th e lev el o f cu sto d y

. S

ee Griffin

, 74 1 F.3 d a t 1 7 & n .1 5. Bu t cf. Aa mer v. Ob a ma , 7 42 F.3 d 1 0 2 3
, 1 02 6 (D.C. Cir. 2 0 1 4 ) (co n clu d in g , af ter S kin ner

w as d ecid ed b u t w ith o u

t d iscu s sin g it, th at ch allen g es to th e co n d i tio n s of

co n f in em en t “ p ro p erly

so u n d in h ab eas co rp u s”).N E T T L E S V

. G R O U N D S 28

SHU to the g eneral prison population. His claim that he has been subjected to g reater restrictions of his liber t y without due process o f law is therefore properly broug ht as a petition for a writ of h abeas corpus. 1 2 S ee Skinner

, 131 S. Ct. a t 1299 & n.13; Bostic , 884 F .2d at 1 269. B ecause the district court erred in dismissing Santos’s pet i t i o n, we remand to the district court f

or further proceeding s on the merits of Santos’s claim.

AF F IRMED IN A P P EAL NO. 12-16935, REVERSED AND REMANDED IN AP P EAL NO. 13-15050.

MURGUI A, Circuit J udg e, c oncurring in part, and dissenting in part:

I disag ree with the major i t y that the Supreme Court

ex p ressly “rul[ ed] on the outer limits of habeas jurisdiction” i n Skinner v. Switzer
, 131 S. Ct. 1289 ( 2011). See Major i t y 17

. Skinner addressed whether a prisoner’s civil rig hts action could p roceed under 4 2 U.S.C. § 1983, and did not involve a federal ha b e a s p etitioner, much less the scope o f relief available under 28 U.S.C. § 2254. See Skinner

, 131 S. Ct. at 1297 (“W e take up here only the questions whethe r t h er e is federal-court subje c t -matter jurisdiction over Skinner’s

12 B ecau se w e co n clu d e th at San to s ’ s claim th at h is g an g v alid atio n

resu lted in an in creased l ev el o f cu sto d y is su f f icien t to ren d er th e claim

co g n izab le u n d er th e f

ed eral h ab eas statu t e, w e n eed n o t ad d ress San to s’ s ad d itio n al arg u m en t th at h is claim is co g n izab le b e c a u s e h i s g an g

v alid atio n also ef

f ectiv ely d ep riv ed h im o f an y m ean in g f u l o p p o rtu n i ty f

or release o n p aro le an d r esu l ted i n t h e lo ss o f th e rig h t to earn g o od

- tim e cred it.N E T T L E S V

. G R O U N D S 29

complaint, and wheth er t he claim h e presses is cog niz able under § 1983.” (emphasis added)). To accept the majority ’s strained r eading o f S

k inner w e have to believe that the Supreme Court, after leaving the issue open for over f o rty
y ears, 1 conclusively d e t ermined the outer boundaries o f habeas jurisdiction in a footnote o f a case that did not involve

a habeas petition. We likewise must i gn o r e the Court’s

ex p licit limitation that its d ecision was n ot intended to f org e

new law, see S

k i n n e r , 131 S. Ct. at 1299 n.13 (stating that Skinner should not b e interpreted to “mov[ e] the line” drawn by t h e Court’s earlier decisions) ( quoting W ilkinson v

. Dotson
, 544 U.S. 74, 8 4 (2005)), and accept that the Supreme Court implemented this drastic chang e to habeas jurisdiction throug h a n a m big uous statement rather than by clear direction.

Given these hurdles, I cannot ag ree with the majority that Skinner ’s holding is clearly irreconcilable with our court’s decisions in Bostic v. Carlson

, 884 F .2d 1267, 1269 (9th Cir. 1989) (habeas jurisdiction is p roper w h e n a prisoner seeks

ex p ung ement of a disciplinary finding if “ex p u n g ement is likely to accelerate the prisoner’s elig ibility for parole”), a nd Docken v. Chase

, 393 F

. 3d 1024, 1 031 (9th Cir. 2 004) (habeas jurisdiction is proper when a p risoner’s challeng e to parole procedures “ could potentially affect the duration of

. . . confinement”) (emphasis in orig inal)). Even if the majority is
correct t h at the footnote sig nals a n answer to the issue the Supreme Court left open in Preiser
, the majority is n ot free to disreg ard b inding case law absent much clearer direction from the Supreme Court. S ee U n i t ed States v. Green
,

1 S ee Preiser v. Ro d

rig u ez , 4 1 1 U .S. 4 7 5, 5 0 0 (1 9 7 3) (d ecli n in g to ad d ress t h e “ lim its o f

h ab eas co rp u s as an altern ativ e rem ed y to a pro per actio n u n d er [4 2 U.S.C.] § 1 9 8 3 ”).N E T T L E S V

. G R O U N D S 30

722 F .3d 1 146, 1150 (9th Cir. 2013). B ecause the majority ’s holding ex c eeds the s cope of a uthority g ranted to a three judg e panel of our court, I must dissent.

I

B y concluding that B ostic and Docke n are clearly irreconcilable with Skinner

, the majority f a i l s to apply the

re q u i s i te level of deference to our binding precedent. “As a three-judg e p anel of this circuit, we are bound by prior panel de ci s i o n s

. . . and can only reex a mine them when their ‘reasoning or theory ’ of that auth o rity is ‘clearly i rreconcilable’ with the reasoning or theory of intervening hig her authority .” Rodriguez v. A T & T Mobility Servs. LLC
, 728 F

. 3d 9 75, 979 ( 9th Cir. 2013) ( quoting Miller v. Gammie
, 335 F .3d 889, 893 (9th Cir. 2003) ( en banc ) )

. T h e r e is no question that “clearly irreconcilable” is a “hig h standar d

. ” Lair v. Bullock

, 697 F .3d 1200, 1207 (9th Cir. 2012) (internal quotation marks and c itation omitted). I ntervening hig her authority is n o t clearly irreconcilable si m ply because there

ex ists “‘some tensi o n ’ between the intervening hig her authority and p r i o r c ircuit precedent” or because “the intervening h ig her authority

. . . ‘cast[ s] doubt’ on the prior circuit precedent.” Lair
, 697 F .3d at 1207 (internal citations omitted). I ndeed, even “‘strong [ ] sig n als’” from the Supreme Court “aren’t enoug h” for a “thr ee

- judg e panel to o verrule

ex isting circuit precedent.” Green
, 7 2 2 F .3d a t 1150 (quoting Miller , 335 F .3d at 900).

I n Skinner

, a state prisoner filed a § 1983 action alleg ing that the State’s refusal to release certain biolog ical evidence for DNA testing violated his due process rig hts. 131 S. Ct. at 1296. The State soug ht dismissal of Skinner’s complaint on the basis that Skinner was u s ing his § 1983 action “as aN E T T L E S V

. G R O U N D S 31

platform for attacking his conviction”—a complaint the State

a r gu e d c ould “be pursued, if at all, in an application f o r habeas corpus.” Id. a t 1 299. The Supreme Court narrowly defined the issue implicated in Skinner

, stating that the Court

was addressing only

whether Skinner’s claim could proceed under § 1983, not whether the sa m e cl aim hy pothetically could be broug ht in a habeas petition. See 131 S. Ct. at 1297. Answering the narrow question b efore it, the Supreme Court held that Skinner ’s claim was cog niz able under § 1983 because the claim did n ot implicate core habeas jurisdiction. Id. at 1298. The Court reasoned that “ [ s] uccess in [ Skinner’s]

s u it for D NA testing would not ‘necessarily imply ’ t h e invalidity of his conviction” because a conclusion that DNA testing would ultimately prove Skinner’s innocence was any thin g b u t certain. Id. This holding reiterated what the Court h as previously held: “core” habeas claims—claims that necessarily spell immediate or speedier r e lease from confinement—

must be broug ht in habeas, while non-core claims may be broug ht under § 1 983. S ee Dotson
, 544 U.S. at 81–82 (survey

ing g overning Supreme Court authority ).

The majority reads Skinner differently

, concluding that a sing le sentence of dicta in footnote 13 fo r e c loses h abeas jurisdiction for all non-co r e c l aims, including claims that closely relate to core h abeas proceeding s— i.e.
, claims that, if successful, will not necessarily result in speedier release but

c o uld affect the duration of confinement. See, e.g. , Bosti c , 884 F .2d at 1 2 69 (ex pung e ment o f a disciplinary finding if “ex p u ng e ment is likely to accelerate the prisoner’s elig ibility for parole”); Docken 3 93 F .3d at 1031 (when challeng ed parole procedures “could potentially affect the duration o f [ the prisoner’s] confinement”)).N E T T L E S V

. G R O U N D S 32

The majority ’s strained r e a ding of Skinner h ing es on the following sentence in f

o o tnote 13: “ [ W

ilkinson v. ] Dotson declare d

. . . in no uncertain terms, that when a prisoner’s claim would n ot ‘necessarily spell speedier release,’ that claim does not lie at ‘the core of habeas corpus,’ and may be broug ht, if at all, under § 1983.” 2 Skinner

, 131 S. Ct. at 1297 n.13 (quoting Dotson
, 544 U.S. at 8 4 )

. R eading this
statement in isolation, the majority creates what it coins “the Skinner standard” and determines that “we are bound by the Court’s ex p ress statement in Skinner that relief is a vailable to

a prisoner under the federal habeas statute only if success on the claim would ‘necessarily sp ell speedier release’ from

2 Fo o tn o t e 1 3 , in its en t irety , read s as f ollo w s:

Un l ik e th e p aro l e determ in atio n s at issu e in W ilkin so n

v. Do tso n , 5 4 4 U .S. 7 4
, 1 2 5 S.Ct. 1 24 2
, 1 6 1 L .Ed .2 d 2 5 3 (2 0 0 5 ), Sw itzer u

rg es, claim s lik e Sk in n er’ s req u ire in q u i ry in to th e S t ate’ s p ro o f at trial an d th eref o re lie at

“ th e co re o f th e crim in al p ro ceed in g itself .” T r. o f O ral 4 1 ; see id

. , at 3 3

– 3 4

. Do tso n d eclared

, h o w ev er, in n o

u n certain term s, th at w

h en a p riso n er’ s claim w ou ld n o t

“ n ecessarily sp ell sp eed ier release,” th at claim d o es n o t lie at “ th e co re o f h ab eas co rp u s,” an d m ay b e b ro u g h t, if at all, u n d er § 1 9 8 3. 5 4 4 U.S., at 8 2 , 1 2 5 S.Ct. 1 2 4 2 (m aj o rity o p in io n ) (in tern al q u o tatio n m ark s o m itted );

see id

. , a t 8 5– 8 6
, 1 2 5 S.Ct. 1 2 4 2 (Scalia, J
., co n cu rrin g ). W h atev er m ig h t b e said o f Sw itzer’ s arg u m en t w ere w e to recast o u r d o ctrin e, Sw itzer’ s p o sitio n can n o t b e reco n ciled w ith th e lin e ou r p reced en t cu rren tly d raw s

. No r can th e d issen t’ s ad v o c a c y of a “ retu r[n ] to f irst p rin cip les.” Po st , at 1 3 0 3

– 1 3 0 4

. Giv en th e im p o rtan ce o f p ro v id i n g clear
g u id an ce to th e lo w er co u rts, “ w e ag ain see n o reaso n f o r m o v in g th e l in e o u r cases d raw .” Do tso n , 5 44 U.S., at 8 4 , 1 2 5 S.Ct. 1 2 4 2

.

S kin n er , 1 31 S. Ct. at 1 2 9 9 n .1 3

.N E T T L E S V

. G R O U N D S 33

custody .” I n doing so, the majority abro ga tes our prior decisions in Bostic and Docken

, where our court held that a prisoner’s claims are properly broug ht under § 2254 so long

as the claim, if successful, w ould likely accelerate parole elig ibility

, Bostic
, 884 F .2d at 1 269, or “ could potentia lly affect the duration of

. . . confinement.” Docken

, 393 F

. 3d at 1031. I believe th e m ajority is w rong and has e x ceeded its authority

. 3

3 No tab ly

, t

h e m aj o rity j u stif

ies its in t erp retatio n o f S

kin n er b y arg u in g th at i ts o p in io n is “ co n sisten t w ith t h e in terp retatio n ad o p ted b y tw o p rio r p an els.” Maj o rity at 1 8 n .8 (citin g Bla ir
, 6 4 5 F.3 d at 1 1 5 7

– 58 ; Gr i f f i n , 7 4 1 F.3 d at 1 7 & n .1 5 ). T h e m aj o rity ’ s relian ce o n th ese cases is cu rio u s,

an d m o st certain ly m isp laced

, p articu larly b ecau se Griffin ’ s b rief m en tio n

o f h ab eas j u risd ictio n ap pears to co n f lict w ith th e m aj ority ’ s h o ld in g in San to s ’ s ap p eal. Griffin in v o lv ed a C alif o rn ia state p riso n er w

h o , lik e San to s , w as a v alid ated g an g m em b er w h o ch allen g ed h is p lacem en t in th e p riso n ’ s s eg reg ated secu rity h o u sin g u n i t. 7 41 F.3 d at 1 1. In a 2 0 0 6

o rd er, t h e d istrict co u rt g ran ted Grif f in ’ s h ab eas p etitio n an d o rd ered th at h e b e released f

ro m seg reg ated h o u sin g

. Id

. at 1 4

. T h e o rd er w as to o late; Grif fi n h ad b een ch arg ed in a f ed eral RICO case an d w as in f ed eral, n o t state, cu sto d y

. Id

. Grif

f in w as su b seq u en tly t

ra n s fe r r ed back t o state p riso n an d h e so u g h t en f

orcem en t o f th e 2 0 0 6 o rd er. “ P ro ced u rally ,” th e

case b ef o re th i s Co u rt w as “ a m ess.” Id

. at 1 7

. Relev an t h ere is th e Griffin p an el’ s d icta in v o lv i n g th e 2 0 0 6 o rd er, w h ere th e pan el stated th at alth o u g h th e Nin th Circu i t h ad p rev io u sly h eld th at su ch o rd ers co u ld issu e

o n h ab eas, “ th e S u

p rem e C o u rt h as sin ce h eld o th erw ise.” I d

. a t 1 7 &

n .1 5 (citin g S

kin n er , 1 3 1 S.Ct. at 1 2 9 9 n

. 1 3 ). Here, th e m aj o rity co n ten d s its in terp retatio n o f S

kin n er “ is co n sist en t” w ith Griffin ’ s, b u t th e

m aj o rity ’ s h o ld in g in S

a n to s , w h ere t h e p etitio n er seek s relief i den tical to th e relief issu ed in th e 20 0 6 o rd er, i s in direct co n f lict w ith Griffin ’ s d icta. Maj o rity at 2 5 (“ T h e Co u rt h as lo n g in d i cated th at a p riso n er’ s claim f or release fr o m o n e f

o rm o f cu sto d y to an o th er, less restrictiv e f o rm of

cu sto d y , can b e bro u g h t in a h ab eas p etitio n .”); i d

. at 2 8 (San to s’ s “ claim th at h e h as b een su

b j ected to g reater restrictio n s o f h is lib erty w ith o u t du e p ro cess o f law is t h e r e fo r e p ro perly b ro u g h t as a p etitio n f o r a w rit of h ab eas co rp u s.”).N E T T L E S V

. G R O U N D S 34

To beg in w ith, the “ e x press statement” on wh i c h the majority relies is by no means a clear statement of i ntent b y the Supreme Court. The sentence states that th e S u p r e me C ourt’s decision in Dotson “declared

. . . in no uncer t a i n t e r m s” that only core habeas claims can be pursued un d e r § 2254. This statement, however, is inherently ambig uous g iven that nothing in D otson ’s holding or reasoning supports the leg al c onclusion. A s in Skinner

, Dotson invol v e d o nly whether prisoners seeking relief under § 1983 cou l d pursue those claims in a civil rig hts action or, the corollary

, whether the prisoner’s claims implicated “ core” habeas jurisdiction

a n d were therefore Heck- barred. See 544 U.S. at 82– 8 4 (noting prisoners can p u r sue relief under § 1983 without

ex h austing habeas remedy when success in the s u it w ill not necessarily shorten the prisoner’s sentence). The Cou r t in Dotson held that the prisoners’ cla i ms—which alleg ed that

T h e m aj o rity ’ s relian ce o n Bla i r is n o m o re co m p elli n g

. In Bla ir
, a h ab eas p etitio n er arg u ed t h at h is rig h t to du e p ro cess w as v io lated b ecau s e th e Calif o rn ia Su p rem e Co u rt w a s tak in g to o lo n g to reso lv e h is d i rect ap p e a l

. 6 4 5 F

. 3 d at 1 15 3

. B y th e tim e t h e claim reach ed th e Nin th Circu it, t h e Calif o rn i a Su p rem e Co u rt h ad alread y a f f i r m ed th e p etitio n er’ s d i r e c t a p p eal o n th e m erits, p ro m ptin g th e p an el in Bla ir to dism iss th e claim as m o o t. Id

. T h e p an el’ s m oo tn ess h o ld in g ren d ers its su bseq u en t d isc u ssio n o f h ab eas j u risd ictio n an ad v iso ry o p in i o n

. S ee C h u rch o f S cien to lo g y o f C a l. v. U n ited S ta tes , 5 0 6 U.S. 9 , 1 2 (1 9 9 2 ) (“ [A ] f ed eral

co u rt h as n o au th ority ‘ to g i v e o p in io n s u p o n m o o t q u estio n s o r ab stract p ro p ositio n s, o r to declare p rin cip les o r ru les o f law w h ich can n o t af

f ect th e m atter in issu e in th e case b ef o re it .’ ” (q u o tin g Mills v. Green
, 1 5 9 U.S. 6 5 1
, 6 53 (1 8 9 5 )); see a l so U.S

. ex rel. Bled

so e v. Cmty. Hea lth S ys., In c. , 5 0 1 F.3 d 4 9 3 , 5 0 7 (6 th Cir. 2 0 07 ).

Materially

, in th eir b rief d iscu ssio n s o f h ab eas j u risd ictio n , Bla ir an d Griffin d id n o t cite to a sin g l e Nin th Circu i t h ab eas case, m u ch less d ecid e t h a t Bo stic an d Do cken are clearly irreco n cilab le w ith S kin ner

. T h e

m aj o rity ex ceed s its au th o rity b y reach in g t h is co n clu sio n to d ay

. S

ee Green , 7 22 F.3 d at 1 1 50

.N E T T L E S V

. G R O U N D S 35

the state’s retroactive application o f harsher parole g uidelines violate d the Ex Post F acto clause—could proceed under § 1983. Nothing in the Court’s decision mandated that such claims be broug h t in a c ivil rig hts a c t i o n

. Id. Despite the maj o r i t y rely ing entirely on dicta quoting the leg al principle announced in Dotson
, the majority is notably silent about the fact that Dotson itself does not supp o r t t h e majority ’s holding

.

There are several additional r easons t hat undercut the majority ’s conclusion that Skinner redefined h abeas jurisdiction. The issue in Skinner involved “only

. . . whether the claim [ Skinner] p r esses is cog niz able under § 1983,” a nd the case did not involve a p e t i t i o n for writ of habeas corpus under § 2254, much less implicate the outer bounds of h abeas jurisdiction. S

e e 131 S. Ct. at 1297. I n fact, despite many opportunities to address this issue, the S u p r e m e Court has notably re fr ained from defining the scope of h abeas j urisdiction for over four decades. See P reiser
, 411 U. S

. at 500. I ronically

, the majority ’s conclusion that Skinner finally

answers this open question conflicts w ith the very footnote on which the majority ’s holding rel ies. The footnote ex pressly cautions ag ainst reading Skinner to “mov[ e] the line” drawn by the Court’s earlier decisions. 1 31 S. Ct. at 1299 n.13 (“Given the importance of providing clear g u i d a n ce to the lower courts, ‘we ag ain see no reason for moving the line our cases draw.’” (quoting Dotson , 544 U.S. at 84)).

Given the n arrow issue before the Cou r t in Skinner

, a nd the Court’s ex plicit limitation in footnote 13 that its decision

was not intended to forg e n e w l a w , I cannot ag ree with theN E T T L E S V

. G R O U N D S 36

majority that the ambig uous footnote in Skinner mandates a departure from our case law. 4

II

W e review de novo a district cou r t’s decision to deny a petition for h abeas c o rpus. B ailey v. Hill

, 599 F

. 3d 976, 978 (9th Cir. 2010). B ecause Skinner does not abrog ate our case law d e f ining the scope of habeas jurisdiction, these consolidated appeals are g overned by the law of this circuit. W ith respect to M a tta J uan Santos’s appeal, the majority
ag rees that Skinner “is not ‘ c learly irrec o n c ilable’ with our earlier determination that we have habeas jurisdiction over a claim that would result in release from disciplinary
seg reg ation to the g e n eral prison population.” Majority at 25. I therefore co ncur in Section I I I .B

. of the majority opinion, which reverses the district court’s d i s m i s sal for lack o f jurisdiction and r emands for the district court to consider the merits of Santos’s h abeas petition. B ecause I d i s ag ree that

4 T o su p p o rt i ts h o ld i n g , th e m aj o rity cites a n u m b er o f p r a g m a t i c

reaso n s f o r ad o p tin g i t s in terp retatio n o f S kin n er

. Fo r ex am

ple, th e

m aj o rity co n ten d s th at its h o l d in g “ n o t o n ly p ro v id es g u id an ce t o p riso n ers reg ard in g th e co rrect f

orm o f actio n f

o r th eir cl aim s, b u t also reso lv es

m u ch o f th e u n d erstan d ab le co n f u sio n o f p riso n o f

f icials reg ard i n g w

h ich
p riso n er claim s are co g n izab le in h ab eas.” Maj o rity at 1 9 n .9

. I ag ree th at th e m aj o rity ’ s h o ld in g d raw s a clear d i stin ctio n b etw een h ab eas j u risd ictio n an d j u

risd ictio n u n d er § 19 83 th at w ill b e easier to im p lem en t th an o u r cu rren t j u risp ru d en ce. Bu t n o m atter h o w p ractical th e m aj o rity ’ s

ru le m ay b e, an d reg ard l ess o f w h eth er th e Su

p rem e Co u rt w ill so m ed ay ag ree w i t h th e m aj o rity

, th e sin g le sen t en ce o f d icta in S kin n er d o es n o t g iv e a t h ree- j u d g e p an el au t

h o rity to o v erru le th e law th at b in d s u s n ow

. S ee S ta t e Oil Co

. v. Kh a n , 5 2 2 U.S. 3
, 2 0 (1 99 7 ) (co u rt o f ap p eals “ w as

co rrect” in ad h erin g to b in d i n g p reced en t d esp i te reco g n izin g an

“ i n f irm []” Su

p rem e Co u

rt deci s i o n th at t

h e co u rt o f ap p eals rig h tly
p red icted w o u ld b e o v ertu rn ed b y th e Su p rem e Co u rt).N E T T L E S V

. G R O U N D S 37

the maj o r ity ’s newly created “ Skinner standard” g overns Nettles’s appeal, I write separate l y a nd evaluate Nettles’s claim u n der o ur court’s e stablished authority

. A p ply ing controlling c ircuit authorit y , I would reverse the district court’s order of dismissa l because Nettles has sufficiently alleg ed a claim cogniz a

ble under § 2254.

A

Damous Nettles, w ho is a California state prison e r serving

an indeterminate life term for the heinous crimes described at leng th in the majority o pinion, majority a t 5–8, challeng es a disciplinary finding in his prison record, wh i c h concluded that Nettles threatened to stab a c o rrectional officer on F ebruary 26, 2008. I n his f ederal habeas petition, Ne t tles
arg ues that he was denied the opportunity to defend a ga i n st the alleg a tion b ecause prison officials falsified evidence a nd refused to allow Nettl e s t o present testimony from

ex c u lpatory witnesses, in violation o f h i s c o n s t i t u tional rig hts. As a result o f this disciplinary f inding

, N ettles was placed in
seg reg ated housing for four months, and he lost thirty day s o f post-conviction credit.

The F ebruary 26, 2008 v i olation, and others, was considered b y the parole board a y ear later, on J uly 30, 2009, when the board c onvened f or a parole suitability hearing a nd determined that Nettles was not suitable for parole because he “still pose[ d] an unreasonable risk of d ang er if released from prison.” Under California law, if a p r i s o n e r is deemed unsuitable f

or parole, the board has discretion to d e t e r m ine when t o s c h e dule the nex t hearing —either 3, 5, 7, 10, or 15
y ears after the hearing

at which parole is denied. Cal. Penal Code § 3041.5(b)(3). W ithout a n aly sis, the board set Nettles’

nex t parole hearing

for 2019—ten y ears later.N E T T L E S V

. G R O U N D S 38

I n his federal habeas p etition, Nettles asserts that “ before the 2008 [ vi o l a t i o n] for threatening an officer, Nettles h ad
g one a fu l l d e cade without any d isciplinary action for drug s

or violence; if he is able to ex pung e the [violation]

, he would take to the B o ard today f i f teen y ears free o f any actions relating to d

rug s or violence.” He a sserts that bec a u s e t h e parole board must consider serious r ule violations as a factor tending to show t h e p r isoner is u nsuitable for parole, Cal. Code Reg s. tit. 15, §2402(c)(6), ex pung ement of his vile 2008 offense would result in a “si gn i fi c ant chang e in evidence probative of his current dang erousness.” Net t l e s also

c ontends that ex pung ement will likely advance his ne x t p a r o l e hearing because he will be able to show a “chang e in circumstances or new information” related to h is current dang erousness. See Cal. Pen. Code § 3041.5(d)(1).

Nettles could be rig ht; he c ould als o b e wrong

. B ut, adhering to o ur binding p recedent, the question befo re us is
not what the parole b oard w ill ultimately d ecide should Nettles successfully ex pung e his 2008 rules violation or what

w e would d o if we were sitting as p arole commissione r s

. I ndeed, “[ w] e are ill-inclined

. . . to substitute our substantive analy sis of the likely outc o m e o f [ N ettles] ’ parole hearing s for that of t he B oard.” Docken

, 393 F .3d at 1031. The
qu es tion before u s is only w hether Nettles’ claim, if successful, “ could po t e ntially affect the duration of

. . . confinement.” Id. (emphasis in orig inal). Althoug h Nettles’ 20 0 8 d i sciplinary violation f or threatening to stab a prison official was not the only

, or e v en the primary

, r eason the board denied Nettles p arole, ex pung ement o f t h e offense nonetheless could p otentially affect the leng th o f his confinement. Nettles does n ot alleg e that ex pung ement would have caused the b oa r d to g rant him parole in 2009. Rather, he contends that e x p u ng ing the offense will likelyN E T T L E S V

. G R O U N D S 39

accelerate his ne x t parole hearing by c hang ing the circumstances relevant to his c urrent dang erousness; instead of his prison record reflecting a threat to m u rder a correctional officer in 2008, Nettles’ record will demonstrate that h e has not been involved i n a d r u g o r violent o ffense in fifteen y ears. Under these circumstances, “[ i] t is certainly at least possible that [ Nettles’] suit would impact the duration o f his confinement,” if the 2008 violation is ex pung ed from his record. See Docken

, 393 F .3d at 1031. B ecause Nettles has established a sufficient link between success in his c laim a nd the duration of his confinement, I would reverse the district court’s o rder of dismissal and remand f or the court to address the merits of Nettles’ claim in the first instance.

~

F or the foreg oing reasons, I respectfully disag ree with the majority that the footnote of d icta in Skinner redef i n e s the
scope of habeas jurisdiction and abrog a tes our p rior decisions in Bostic and Docken

. Althoug h I ag r ee w i t h t h e majority ’s determi n a t i on that Santos’s claim may be broug ht under § 2254, I disag ree that Nettles peti t i on fails to assert a cog niz a b l e h abeas claim. I would therefore reverse a nd remand in both cases b ecause Santos a n d Net t l e s have e ach asserted a cog niz a b l e habeas claim u nder the law of our circuit. See Docken

, 3 93 F .3d at 1031. I believe the majority ’s c onclus i o n to the contrary ex ceeds the authority
g ranted to a three judg e panel of this Court.