Damous Nettles v. Randy Grounds

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DAMOUS D. NETTLES, No. 12-16935
Petitioner-Appellant,
D.C. No.
v. 1:11-cv-01201-
AWI-JLT
RANDY GROUNDS, Warden,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Senior District Judge, Presiding

MATTA JUAN SANTOS, No. 13-15050
Petitioner-Appellant,
D.C. No.
v. 1:12-cv-01651-
LJO-GSA
K. HOLLAND and JEFFREY BEARD,
Respondents-Appellees. OPINION

Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted
October 6, 2014—San Francisco, California
2 NETTLES V. GROUNDS

Filed May 28, 2015

Before: Sandra S. Ikuta, N. Randy Smith,
and Mary H. Murguia, Circuit Judges.

Opinion by Judge Ikuta;
Partial Concurrence and Partial Dissent by Judge Murguia

SUMMARY*

Habeas Corpus

The panel affirmed the district court’s dismissal of
California state prisoner Damous Nettles’s habeas corpus
petition seeking expungement of a prison rules violation
report and restoration of thirty days of post-conviction credit;
and reversed the district court’s dismissal of California state
prisoner Matta Juan Santos’s habeas corpus petition claiming
that the process by which the prison validated his gang
involvement violated his due process rights and seeking
release from his resulting confinement in the security housing
unit.

Applying Skinner v. Switzer, 131 S. Ct. 1289 (2011), the
panel held that a claim challenging prison disciplinary
proceedings is cognizable in habeas only if it will
“necessarily spell speedier release” from custody, meaning
that the relief sought will either terminate custody, accelerate
the future date of release from custody, or reduce the level of

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 NETTLES V. GROUNDS 3

custody; and that to the extent this court’s prior decisions
held that a claim is cognizable in habeas if success on the
claim is likely to, or has the mere potential to, affect the
length of a petitioner’s confinement, they are overruled as
irreconcilable with Skinner.

The panel held that because neither the expungement of
the rules violation report nor restoration of the lost good-time
credits would necessarily accelerate the future date of
Nettles’s release from custody, his claim is not cognizable
under the habeas statute.

The panel wrote that it remains bound by the
determination in Bostic v. Carlson, 884 F.2d 1267 (9th Cir.
1989), that there is habeas jurisdiction over a claim that
would result in release from disciplinary segregation to the
general prison population. The panel therefore held that the
district court erred in dismissing Santos’s petition that seeks
a remedy – expungement of the gang validation and release
from the security housing unit to the general population – that
can fairly be described as a quantum change in the level of
custody. The panel remanded for further proceedings on the
merits of Santos’s claim.

Judge Murguia concurred in part and dissented in part.
She disagreed with the majority that a footnote of dicta in
Skinner defines the scope of habeas jurisdiction and abrogates
the decisions in Bostic (habeas jurisdiction is proper when a
prisoner seeks expungement of a disciplinary finding if
“expungement is likely to accelerate the prisoner’s eligibility
for parole”), and Docken v. Chase, 393 F.3d 1024 (9th Cir.
2004) (habeas jurisdiction is proper when a prisoner’s
challenge to parole procedures “could potentially affect the
duration of . . . confinement”). She would reverse and
4 NETTLES V. GROUNDS

remand in both cases because Santos and Nettles have each
asserted a cognizable habeas claim under the law of this
circuit.

COUNSEL

Monica Knox (argued), Assistant Federal Defender; Heather
Williams, Federal Defender, Sacramento, California, for
Petitioner-Appellant Damous D. Nettles.

Peggy Sasso (argued), Assistant Federal Defender; Heather
Williams, Federal Defender, Fresno, California, for
Petitioner-Appellant Matta Juan Santos.

Andrew R. Woodrow (argued), Deputy Attorney General;
Kamala D. Harris, Attorney General of California; Jennifer
A. Neill, Senior Assistant Attorney General; Phillip J.
Lindsay, Supervising Deputy Attorney General, Sacramento,
California, for Respondent-Appellee Randy Grounds,
Warden.

Amy Daniel (argued), Deputy Attorney General; Kamala D.
Harris, Attorney General of California; Jennifer A. Neill,
Senior Assistant Attorney General; Jessica N. Blonien,
Supervising Deputy Attorney General, Sacramento,
California, for Respondents-Appellees K. Holland and Jeffrey
Beard.
 NETTLES V. GROUNDS 5

OPINION

IKUTA, Circuit Judge:

The two appeals consolidated in this opinion require us to
identify the appropriate standard for determining whether a
claim is cognizable under the federal habeas statute.1
Applying Skinner v. Switzer, we conclude that a claim
challenging prison disciplinary proceedings is cognizable in
habeas only if it will “necessarily spell speedier release” from
custody, meaning that the relief sought will either terminate
custody, accelerate the future date of release from custody, or
reduce the level of custody. 131 S. Ct. 1289, 1299 n.13
(2011) (emphasis added) (internal quotation marks omitted)
(citing Wilkinson v. Dotson, 544 U.S. 74, 86 (2005) (Scalia,
J., concurring)). To the extent our prior decisions held that a
claim is cognizable in habeas if success on the claim is likely
to, or has the mere potential to, affect the length of a
petitioner’s confinement, they are overruled as irreconcilable
with Skinner. See Blair v. Martel, 645 F.3d 1151, 1157 (9th
Cir. 2011).

I

Damous Nettles and Matta Juan Santos, both prisoners in
California state prisons, appeal the district court’s dismissal
of their habeas petitions.

A

In 1990, Nettles was convicted in California of attempted
first degree murder with use of a firearm, and other offenses.

1
These appeals are ordered consolidated for purposes of this disposition.
6 NETTLES V. GROUNDS

The victim was a woman who had filed a complaint against
Nettles’s brother. In order to prevent her from testifying,
Nettles took the victim down an alley, ordered her onto her
hands and knees, and told her “You’re not going to testify
against my brother. I’m going to kill you.” Nettles then shot
her twice in the left ear and left her in the alley. The victim
did not die, but was seriously injured and disfigured.

Nettles was sentenced to prison for a determinate term of
twelve years and a life term with the possibility of parole for
his convictions for attempted murder and dissuading and
conspiring to dissuade a witness from attending or giving
testimony at trial. His minimum eligible parole date was
October 19, 2005. An initial parole consideration hearing
was held in 2004. Before that hearing, prison staff had issued
some thirty-nine rules violations reports (CDC Form 115) to
Nettles. These reports are issued for misconduct that “is
believed to be a violation of law or is not minor in nature.”
Cal. Code Regs. tit. 15, § 3312(a)(3). He also received
numerous citations for lesser types of misconduct. See id.
§ 3312(a)(2) (noting that “documentation of minor
misconduct” should be “documented on a CDC Form
128-A”). At his initial parole hearing in 2004, the Board of
Prison Terms (now the Board of Parole Hearings, or Board)2
deemed Nettles to be unsuitable for parole and declined to set
a parole date. It scheduled the next parole suitability hearing
for 2006, but the date was postponed several times.

After 2004, Nettles received seven additional rules
violations reports. On February 26, 2008, staff issued Nettles

2
At the time of the hearing, the Board was referred to as the Board of
Prison Terms. This entity was replaced by the Board of Parole Hearings
in 2005. See Cal. Gov’t Code § 12838.4.
 NETTLES V. GROUNDS 7

a rules violation report for threatening to stab a corrections
officer. After an investigation of the incident and a hearing,
Nettles was found guilty, and given a four-month term in the
segregated housing unit. He also lost thirty days of post-
conviction credit.

On July 30, 2009, the Board convened a second parole
suitability hearing for Nettles. At the hearing, the presiding
commissioner first described the facts of Nettles’s crime,
characterizing it as “one of the most atrocious and cruel acts
I’ve read” and stating that Nettles’s motive was “ridiculously
heinous.”

The commissioner then reviewed Nettles’s prior criminal
history. Nettles had a long string of convictions beginning at
age seventeen, and had been in and out of prison for offenses
including possession of drugs, assault with a deadly weapon,
battery on a peace officer, and robbery. Nettles was on parole
for the robbery conviction when he committed the attempted
murder for which he was sentenced to life imprisonment.
The commissioner stated that Nettles’s lengthy criminal
history illustrated his inability to learn from prior
imprisonments.

The commissioner next explained the hearing panel’s
concerns about Nettles’s mental state and attitude about the
crime. In the hearing panel’s view, Nettles’s letter to the
victim did not express true remorse. Further, Nettles had not
taken responsibility for his conduct and lacked insight that
would enable him to change his behavior. The commissioner
discussed a May 2007 psychological report, which gave
Nettles “a rating of overall moderate likelihood to become
involved in a violent offense if released.” Finally, the
commissioner stated that Nettles was argumentative and
8 NETTLES V. GROUNDS

stubborn, “challenge[d] authority at every given opportunity”
and refused to restrain himself, as evidenced by his numerous
rules violations. The commissioner noted the forty-six rules
violation reports that had been issued to Nettles while he was
in prison. Nettles “continued to display negative behavior
while incarcerated,” and as a result was placed in segregated
housing. Moreover, Nettles had not taken any significant
steps to gain skills to function outside of prison.
Nevertheless, the commissioner noted some positive steps
Nettles had taken, including a slight reduction in the number
of rules violations reports issued to Nettles in recent years.

The hearing panel concluded that Nettles was unsuitable
for parole because he “still pose[d] an unreasonable risk of
danger if released from prison.” This finding was “based on
weighing the considerations provided in the California Code
of Regulations.” As authorized by the regulations, id. § 2306,
the commissioner made recommendations regarding “what
steps may be undertaken to enhance the possibility of a grant
of parole at a future hearing,” id. § 2304, telling Nettles that
“[f]or next time, you certainly need to become and remain
disciplinary free.”

On January 23, 2009, Nettles filed a habeas petition in the
Superior Court of California claiming, in relevant part, that
the 2008 rules violation report was illegal, and that the
disciplinary proceedings held in connection with the 2008
rules violation report violated his due process rights. The
Superior Court denied the petition, concluding that Nettles
failed to exhaust his administrative remedies concerning these
 NETTLES V. GROUNDS 9

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

On June 10, 2011, Nettles filed a habeas petition in
federal court seeking, among other things, “restoration of
good time,” presumably referring to the loss of thirty days of
post-conviction credits as a result of the 2008 disciplinary
decision, and expungement of the February 26, 2008 rules
violation report. After being ordered to respond, the state
moved to dismiss the petition, arguing that the court lacked
jurisdiction to entertain the petition because the 2008
disciplinary decision did not impact the fact or duration of
Nettles’s confinement. Nettles opposed the motion, arguing
that the disciplinary decision impacted the duration of his
confinement because it delayed his parole hearing and
constituted grounds for future denial of parole.

The district court dismissed Nettles’s petition, holding
that he could not show that expungement of the 2008 rules
violation report was likely to accelerate his eligibility for
parole. Nettles timely appealed the district court’s decision.

B

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

3
As the state acknowledges, it did not argue to the district court that
Nettles’s claim was procedurally barred. Nor does the state raise this issue
on appeal. Therefore, we do not address it.
10 NETTLES V. GROUNDS

After prison investigators verified allegations that Santos
was a currently active member of the Mexican Mafia, a
prison official validated the gang-involvement determination
on February 10, 2011. See Cal. Code Regs. tit. 15, § 3378.
As a result of this gang validation, Santos was removed from
the general prison population and confined in the security
housing unit (SHU) indefinitely.

Santos claims that the SHU is a “prison within a prison
where prisoner[s] are denied virtually all privileges.”
According to Santos, prisoners placed in the SHU spend
approximately twenty-two hours per day in their cells, receive
all meals in their cells, are denied contact visits and phone
access, and are not allowed to participate in training or
education activities. Additionally, a prisoner is ineligible to
earn post-conviction credits under California Penal Code
section 2933(b) or program credit reductions under California
Penal Code section 2933.05 during the time the prisoner is
placed in the SHU. Cal. Penal Code § 2933.6.

Santos administratively appealed his gang validation.
After his third and final administrative appeal was denied,
Santos filed a petition for a writ of habeas corpus in the
Superior Court of California arguing, among other things, that
the allegations of his gang involvement were false, and that
there was no evidence supporting the gang validation. Santos
demanded that the prison expunge the gang validation from
his file and release him to the general prison population. The
Superior Court denied Santos’s petition, finding that
sufficient evidence supported the gang validation. The
California Court of Appeal and California Supreme Court
summarily denied the petition.
 NETTLES V. GROUNDS 11

On October 9, 2012, Santos filed a petition for a writ of
habeas corpus in federal court, arguing that the gang
validation violated his due process rights because it was
“based on false, unreliable and insufficient information.” He
sought release from the SHU. The district court dismissed
the petition on the ground that Santos’s claims were not
cognizable under the federal habeas statute, as they concerned
the conditions, rather than the fact or duration, of his
confinement. Santos timely appealed the district court’s
decision.

II

We review de novo a district court’s decision to deny a
petition for habeas corpus. Bailey v. Hill, 599 F.3d 976, 978
(9th Cir. 2010). We also review de novo a district court’s
determination that it does not have jurisdiction over a habeas
corpus petition. Id.

Both Nettles’s and Santos’s appeals require us to
determine when we lack jurisdiction over a claim raised in a
habeas petition. By statute, federal courts must “entertain an
application for a writ of habeas corpus in behalf of a person
in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a); see also 28 U.S.C. § 2241(c)(3).
According to the Supreme Court, this language, as well as
“the common-law history of the writ” makes clear “that the
essence of habeas corpus is an attack by a person in custody
upon the legality of that custody, and that the traditional
function of the writ is to secure release from illegal custody.”
Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).
12 NETTLES V. GROUNDS

In the leading case of Preiser, the Court considered
whether prisoners who had lost good-time credits as a result
of disciplinary proceedings could bring an action under
42 U.S.C. § 19834 for restoration of the credits on the ground
that the proceedings violated their due process rights, or
whether they were limited to bringing a habeas petition. Id.
at 476–77. The prisoners would have been entitled to
immediate release from prison if their good-time credits had
been restored. Id.

Because analyzing this issue required an inquiry into the
respective spheres of habeas and civil rights actions, the
Court first gave federal courts guidance as to what types of
cases sounded in habeas. According to the Court, “when a
state prisoner is challenging the very fact or duration of his
physical imprisonment, and the relief he seeks is a
determination that he is entitled to immediate release or a
speedier release from that imprisonment, his sole federal
remedy is a writ of habeas corpus.” Id. at 500. The Court
noted that the scope of habeas had evolved over the years. Id.
at 485. A person is deemed to be “in custody” for purposes
of habeas when a person is subject to parole, id. at 486 n.7
(citing Jones v. Cunningham, 371 U.S. 236 (1963)), or even
when the person is released on bail or on the person’s own
recognizance, id. (citing Hensley v. Municipal Court,
411 U.S. 345 (1973)). In addition, a prisoner is deemed to be
seeking “release” from custody even when the prisoner will
not gain freedom, but will be released into a different form of

4
Section 1983 provides that: “Every person who, under color of [state
law] . . . subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured . . . .” 42 U.S.C. § 1983.
 NETTLES V. GROUNDS 13

custody. See id. at 486 (stating that the writ of habeas corpus
is available to obtain release from the wrong institution to the
correct institution) (citing Humphrey v. Cady, 405 U.S. 504
(1972) and In re Bonner, 151 U.S. 242 (1894)). Finally, “the
federal habeas corpus statute does not deny the federal courts
power to fashion appropriate relief other than immediate
release.” Id. at 487 (internal quotation marks omitted). For
instance, prisoners can challenge an unlawful loss of good-
time credits even if restoration of such credits “merely
shortened the length of their confinement, rather than
required immediate discharge from that confinement.” Id.

Turning next to the appropriate scope of § 1983, the Court
ruled that where prisoners challenged the fact or duration of
their imprisonment, and sought immediate or speedier release
from that imprisonment, they were precluded from bringing
that challenge in a civil rights action under § 1983. Id. at 500.
The Court reasoned that although “the literal terms of § 1983
might seem to cover” claims that a prisoner’s confinement
violated the Constitution, id. at 489, there was, as the Court
later put it, “an implicit exception from § 1983’s otherwise
broad scope for actions that lie ‘within the core of habeas
corpus,’” Wilkinson v. Dotson, 544 U.S. 74, 79 (2005)
(quoting Preiser, 411 U.S. at 487). Because Congress passed
the more specific habeas statute, requiring exhaustion of state
remedies, to cover state prisoners’ constitutional challenges
to their convictions and sentences, any prisoner complaint
lying at “the core of habeas corpus” had to be brought by
means of a habeas petition, not under § 1983. Preiser,
411 U.S. at 489–90.5

5
Heck v. Humphrey further limited the scope of § 1983, holding that
claims for damages that necessarily imply the invalidity of a conviction or
sentence are cognizable under § 1983 only if the plaintiff proves that the
14 NETTLES V. GROUNDS

The Court then examined the prisoners’ claims in light of
these rulings. Because the prisoners in Preiser brought a
challenge seeking relief that would result in immediate
release from prison, their claims “fell squarely within [the]
traditional scope of habeas corpus.” Id. at 487. Because the
claims were “within the core of habeas corpus,” that was the
prisoners’ exclusive remedy, and they were precluded from
bringing the action under § 1983. Id. at 487–88, 500.

Although Preiser helps delineate the core of habeas, it did
not delineate the outer limits of habeas jurisdiction, the
question before us here. Indeed, Preiser held this issue open,
stating that “we need not in this case explore the appropriate
limits of habeas corpus as an alternative remedy to a proper
action under § 1983.” Id. at 500.

We addressed this issue in cases following Preiser, and
made clear that habeas jurisdiction was available only for
claims that had some nexus to shortening the length of
confinement. We did not, however, fully delineate the
contours of this nexus. In Crawford v. Bell, we held that
habeas did not extend to challenges to the “terms and
conditions” of a prisoner’s incarceration, where the
appropriate remedy would not include “release from
confinement.” 599 F.2d 890, 891–92 (9th Cir. 1979). In
Bostic v. Carlson, we held that a prisoner could bring a
petition in habeas to seek relief from various disciplinary

conviction or sentence has been reversed, expunged, or declared invalid.
512 U.S. 477, 486–87 (1994). In establishing this “favorable termination”
rule, the Court reasoned that the sort of action described in Heck is most
closely analogous to the common-law cause of action for malicious
prosecution, which requires “termination of the prior criminal proceeding
in favor of the accused.” Id. at 484.
 NETTLES V. GROUNDS 15

decisions that resulted in “forfeiture of statutory good time or
segregation from the general prison population,” where the
relief was for “expungement of the incident from his
disciplinary record” so long as such “expungement is likely
to accelerate the prisoner’s eligibility for parole.” 884 F.2d
1267, 1269 (9th Cir. 1989). In Ramirez v. Galaza, we stated
that a prisoner could not bring a habeas petition to seek
expungement of a disciplinary charge where “a successful
challenge to a prison condition will not necessarily shorten
the prisoner’s sentence.” 334 F.3d 850, 859 (9th Cir. 2003).
In Docken v. Chase, we held that prisoners could bring claims
in a habeas petition “challenging aspects of their parole
review” so long as success on the claims “could potentially
affect the duration of their confinement.” 393 F.3d 1024,
1031 (9th Cir. 2004) (emphasis omitted). These cases
together establish that habeas jurisdiction is available only for
claims that, if successful, would have some shortening effect
on the length of a person’s custody. We have not made clear,
however, whether a claim has to necessarily, likely, or merely
potentially accelerate release from confinement to be
cognizable in habeas.

In Skinner v. Switzer, the Supreme Court again confronted
the question, “[w]hen may a state prisoner, complaining of
unconstitutional state action, pursue a civil rights claim under
§ 1983, and when is habeas corpus the prisoner’s sole
remedy?” Skinner, 131 S. Ct. at 1298. In Skinner, the Court
considered a prisoner’s lawsuit against a Texas district
attorney for failing to provide DNA testing the prisoner
requested. Id. at 1295. The Court concluded that the prisoner
could assert that claim in an action under § 1983 rather than
in a petition for a writ of habeas corpus because a judgment
that simply orders DNA tests will not necessarily imply the
16 NETTLES V. GROUNDS

unlawfulness of the state’s custody or spell speedier release.
Id. at 1293.6

In reaching this conclusion, Skinner relied on Wilkinson
v. Dotson, an earlier Supreme Court decision holding that
prisoners could challenge the retroactive application of parole
guidelines under § 1983 because their claims did not lie at the
“core of habeas corpus.” Dotson, 544 U.S. at 82 (internal
quotation marks omitted). Skinner explained that “Dotson
declared . . . in no uncertain terms, that when a prisoner’s
claim would not ‘necessarily spell speedier release,’ that
claim does not lie at ‘the core of habeas corpus,’ and may be
brought, if at all, under § 1983.” Skinner, 131 S. Ct. at 1299
n.13 (emphasis added). Citing Justice Scalia’s concurrence
in Dotson, Skinner indicated that the Court had never
“recognized habeas as the sole remedy, or even an available
one, where the relief sought would ‘neither terminat[e]
custody, accelerat[e] the future date of release from custody,
nor reduc[e] the level of custody.’” Id. at 1299 (emphasis
added) (quoting Dotson, 544 U.S. at 86 (Scalia, J.,
concurring)). Accordingly, Skinner adopted the line between

6
The Court previously indicated that a claim that does not imply the
invalidity of the underlying conviction or “necessarily” affect the duration
of time to be served, is not a claim on which habeas relief can be granted.
Muhammad v. Close, 540 U.S. 749, 754–55 (2004) (per curiam). In
Close, the Supreme Court limited the applicability of Heck by holding that
its favorable termination requirement was not applicable, and the prisoner
could bring a § 1983 claim, when the prisoner challenged administrative
determinations that did not “raise any implication about the validity of the
underlying conviction” or “necessarily” affect “the duration of time to be
served,” because such a challenge “raised no claim on which habeas relief
could have been granted on any recognized theory.” Id.
 NETTLES V. GROUNDS 17

§ 1983 claims and habeas actions that it discerned in Dotson.
Id.7

Applying Skinner’s ruling on the outer limits of habeas
jurisdiction, we stated that federal courts lack habeas
jurisdiction to consider claims for constitutional violations
that do not necessarily spell speedier release. See Blair,
645 F.3d at 1157. In Blair, we considered whether a state
prisoner could bring a habeas petition claiming that the
California Supreme Court’s delay in processing his direct
appeal deprived him of due process. Id. We dismissed this
claim, in part because we lacked habeas jurisdiction. Id. at
1157–58. We explained that Dotson and Skinner “distinguish
between claims that necessarily imply the invalidity of a
conviction,” which must be brought in a habeas petition, and
“claims for constitutional violations that do not necessarily
spell speedier release and thus do not lie at the core of habeas
corpus, which may be brought, if at all, under § 1983.” Id. at
1157. Because the prisoner’s claim did not challenge the
validity of his conviction or “necessarily spell speedier

7
The dissent argues that we are not bound by Skinner’s distinction
between claims that may be brought in a habeas action and those that may
be brought in a § 1983 claim because Skinner’s interpretation of Dotson
is wrong. But, of course, we are bound by the Supreme Court’s
statements and its characterization of its own precedent, regardless
whether we believe our interpretation of its precedents is superior. Cf.
Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001) (“A decision of
the Supreme Court will control that corner of the law unless and until the
Supreme Court itself overrules or modifies it. Judges of the inferior courts
may voice their criticisms, but follow it they must.”); Rodriguez de Quijas
v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent
of this Court has direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of Appeals should
follow the case which directly controls, leaving to this Court the
prerogative of overruling its own decisions.”).
18 NETTLES V. GROUNDS

release,” we concluded that it “belongs in a § 1983 complaint,
not a habeas petition.” Id. at 1157–58; see also Griffin v.
Gomez, 741 F.3d 10, 17 & n.15 (9th Cir. 2014) (“Though we
had held that [an order requiring a change in conditions of
confinement] could issue on a habeas petition, the Supreme
Court [in Skinner, 131 S. Ct. at 1299 n.13] has since held
otherwise.”). But see Thornton v. Brown, 757 F.3d 834, 841
& n.4 (9th Cir. 2013) (stating in passing that § 1983 and
habeas may provide alternative means to challenge prison
conditions, and noting parenthetically that Skinner raised, but
did not decide “the question whether ‘habeas [is] the sole
remedy, or even an available one,’ for certain types of claims
(quoting Skinner, 131 S. Ct. at 1299) (alteration in original)).

We now reaffirm our statements in Blair and Griffin, and
hold that we are bound by the Court’s express statement in
Skinner that relief is available to a prisoner under the federal
habeas statute only if success on the claim would “necessarily
spell speedier release” from custody, which Skinner
suggested would include termination of custody, acceleration
of the future date of release from custody, or reduction of the
level of custody. See Skinner, 131 S. Ct. at 1299 & n.13.8
This conclusion is not only consistent with the plain language
of Skinner and our own previous interpretations of that case,
it is also consistent with the Court’s precedents and the
common law history of the writ. See Preiser, 411 U.S. at
484–86; Dotson, 544 U.S. at 85–87 (Scalia, J., concurring);
Muhammad v. Close, 540 U.S. 749, 754–55 (2004) (per
curiam) (holding that a prisoner “raised no claim on which
habeas relief could have been granted on any recognized

8
The dissent complains that our reading of Skinner is “strained,” but our
interpretation is consistent with the interpretation adopted by two prior
panels. See Blair, 645 F.3d at 1157–58; Griffin, 741 F.3d at 17 & n.15.
 NETTLES V. GROUNDS 19

theory” where the administrative determinations he
challenged neither raised an implication about the validity of
the underlying conviction nor necessarily affected the
duration of time to be served). Accordingly, we conclude that
under Skinner, in cases involving challenges to prison
disciplinary proceedings, the writ of habeas corpus extends
only to claims that, if successful, will “necessarily spell
speedier release.” See Skinner, 131 S. Ct. at 1299 n.13
(emphasis added). To the extent our cases have indicated that
the writ of habeas corpus may extend to claims that, if
successful, would merely be likely to or have the potential to
lead to a speedier release, they are superceded by the
Supreme Court’s rulings. See Miller v. Gammie, 335 F.3d
889, 893 (9th Cir. 2003) (“[W]here the reasoning or theory of
our prior circuit authority is clearly irreconcilable with the
reasoning or theory of intervening higher authority, a three-
judge panel should consider itself bound by the later and
controlling authority, and should reject the prior circuit
opinion as having been effectively overruled.”). Prisoners
seeking to bring other challenges to prison conditions may
have recourse to § 1983, which allows them to bring claims
without exhausting state remedies or facing the highly
deferential standard of review applicable to habeas claims.9

9
The clarity provided by Skinner’s distinction between habeas and
§ 1983 actions not only provides guidance to prisoners regarding the
correct form of action for their claims, but also resolves much of the
understandable confusion of prison officials regarding which prisoner
claims are cognizable in habeas. In these appeals, for instance, the state
argued in favor of interpreting Skinner as precluding habeas petitions for
claims that do not lie at the core of habeas, even though such a rule
channels prisoner claims towards the more flexible § 1983 cause of action.
In Skinner itself, by contrast, the state took the opposite position, urging
that an action raising a due process claim relating to DNA testing was at
20 NETTLES V. GROUNDS

III

We now apply these principles to the habeas petitions
filed by Nettles and Santos.

A

Nettles seeks two forms of relief. First, he seeks
expungement of the February 26, 2008 rules violation report
for threatening to stab a corrections officer. Second, he seeks
restoration of the thirty days of post-conviction credit that
were lost based on a finding that he was guilty of the alleged
rules violation. We must determine whether either of these
forms of relief will “necessarily spell speedier release” from
custody. See Skinner, 131 S. Ct. at 1299 n.13.

1

In order to understand Nettles’s arguments that both
claims are cognizable in habeas, it is first necessary to review
certain aspects of California’s parole system. If a prisoner,
like Nettles, has been given a life sentence with the
possibility of parole, the earliest date on which such a
prisoner may be released on parole is termed the “minimum
eligible parole date.” Cal. Code Regs. tit.15, § 2000(b)(67).
This date is set by statute, and the California Department of
Corrections is responsible for calculating it. Id. § 2400.

One year before a prisoner reaches the minimum eligible
parole date, the Board (or a panel of two or more
commissioners) meets with the inmate, and sets a parole

“the core of the criminal proceeding itself” and had to be brought in
habeas. 131 S.Ct. at 1299 n.13 (quoting oral argument transcript).
 NETTLES V. GROUNDS 21

release date “unless it determines that the gravity” of the
prisoner’s offenses “is such that consideration of the public
safety requires a more lengthy period of incarceration.” Cal.
Penal Code § 3041(b); see also Cal. Code Regs. tit. 15,
§ 2281(b) (listing information considered in determining
whether a prisoner is suitable for release on parole). If the
Board decides not to set a parole release date, the Board will
schedule the next hearing for a period ranging from three to
fifteen years, depending on statutory criteria. Cal. Penal
Code § 3041.5(b)(3).

If the Board determines that the prisoner is suitable for
parole, it will calculate a parole date in the manner required
by the regulations. Cal. Code Regs. tit. 15, §§ 2289, 2317.
First, the Board calculates a base term, using a matrix set out
in the regulations. Id. §§ 2282, 2403. Among other factors,
the Board may consider post-conviction credit accrued by the
prisoner for time served, but “[i]n no case may post
conviction credit advance a release date earlier than the
minimum eligible parole date.” Id. § 2290(a). After the base
term has been determined, the prisoner’s post-conviction
credits are subtracted to determine the adjusted term. Id.
§ 2411(a). If this calculation establishes that the prisoner has
served time equal to or greater than the adjusted term, the
prisoner is entitled to release. Id. § 2289.

2

Nettles argues that expunging the 2008 rules violation
report from his record is reasonably likely to accelerate his
release. He argues that under California law, the Board “shall
normally set a parole release date” unless the Board
determines that “the inmate constitutes a current threat to
public safety.” See In re Lawrence, 190 P.3d 535, 546, 553
22 NETTLES V. GROUNDS

(Cal. 2008) (internal quotation marks omitted). Nettles
argues that without the 2008 rules violation on his record, he
would be able to present the Board fifteen years free of any
actions relating to drugs or violence, and this would have
some effect in accelerating his release. While acknowledging
that the 2009 hearing panel might not have found him eligible
for parole, even without the 2008 rules violation report,
Nettles claims that at a minimum, the Board would have
scheduled the next parole suitability hearing at an earlier date,
or that Nettles would be able to accelerate the next hearing
due to a “change in circumstances.” Cal. Penal Code
§ 3041.5(d). Further, Nettles claims that the existence of the
2008 rules violation report on his record will detract from the
Board’s consideration of his parole suitability for years to
come. Because the expungement relief Nettles requests will
prevent these roadblocks to parole, Nettles contends his
claims are cognizable in habeas.

We reject these arguments, because the effect of an
expungement of the 2008 rules violation report is too
attenuated to meet the Skinner standard. While the 2008 rules
violation report will likely have some effect on the Board’s
consideration, there is no basis for concluding that the
expungement of this report from the record will “necessarily
spell speedier release” for Nettles. See Skinner, 131 S. Ct. at
1299 n.13. Nor will it necessarily terminate Nettles’s
custody, accelerate the future date of his release, or reduce his
level of custody. See id. The effect of a rules violation on
parole suitability is a matter of state law or regulation, and,
under California law, a rules violation is merely one factor
the parole board considers to determine whether a prisoner
“constitutes a current threat to public safety,” Lawrence,
190 P.3d at 553; it is not determinative, see Cal. Code Regs.
tit. 15, § 2281(b) (directing the parole board to consider “[a]ll
 NETTLES V. GROUNDS 23

relevant, reliable information” in determining suitability for
parole). Here, the Board considered a range of relevant
factors bearing on Nettles’s future dangerousness, including
his inability to learn from prior imprisonments, his lack of
insight and remorse regarding his crimes, and his
argumentative and stubborn attitude. Even if successful,
Nettles “will not necessarily shorten the length of his
confinement” because “[t]he parole board will still have the
authority to deny . . . parole on the basis of any of the
grounds presently available to it in evaluating such a request.”
See Ramirez, 334 F.3d at 859 (first alteration in original)
(internal quotation marks omitted). As Close pointed out,
even when a challenge to prison disciplinary proceedings
“may affect the duration of time to be served (by bearing on
the award or revocation of good-time credits),” where “it is
not necessarily so,” a challenge to such proceedings “raise[s]
no claim on which habeas relief could have been granted.”
540 U.S. at 754–55 (emphasis added). Therefore, this claim
is not cognizable in habeas.

Nettles also argues that a restoration of post-conviction
credits would have an effect on the duration of his
confinement. While he acknowledges that restoring the post-
conviction credits would not impact his minimum eligible
parole date, which had already passed at the time he was
deprived of the credits, Nettles contends that restoration of
the credits will reduce the term he must serve before being
released, once the Board determines he is eligible for parole
and sets a term for his release.

Again, we reject this argument. Although the loss of
post-conviction credit could lead to a longer term under some
circumstances, the effect in Nettles’s case is far too
attenuated to meet the standard set forth in Skinner. First, the
24 NETTLES V. GROUNDS

Board has not yet found Nettles to be suitable for parole, and
it is unknown whether the Board will do so at the next parole
hearing. If Nettles is eventually found suitable for parole, and
a term is calculated, a deprivation of post-conviction credits
could affect his release date only if the base term exceeded
the time already served. See Cal. Code Regs. tit. 15, § 2289.
Without knowing how many years Nettles will serve before
the Board finds him suitable for parole or the length of his
base term, we cannot conclude that restoration of the lost
good-time credits would necessarily affect the duration of
Nettles’s confinement if and when the Board finds him
suitable for parole.

Because neither expungement of the 2008 rules violation
report nor restoration of the lost good-time credits would
necessarily accelerate the future date of Nettles’s release from
custody, we hold that his claim is not cognizable under the
federal habeas statute. See Skinner, 131 S. Ct. at 1299 &
n.13.

B

We next turn to Santos’s claim seeking expungement of
the gang validation from his record and release from the SHU
to the general prison population. If successful, Santos’s claim
would result in immediate release from the SHU, but would
not result in immediate release from prison.

We have previously held that “[h]abeas corpus
jurisdiction is also available for a prisoner’s claims that he
has been subjected to greater restrictions of his liberty, such
as disciplinary segregation, without due process of law.”
Bostic, 884 F.2d at 1269. The Seventh Circuit has similarly
concluded:
 NETTLES V. GROUNDS 25

If the prisoner is seeking what can fairly be
described as a quantum change in the level of
custody—whether outright freedom, or
freedom subject to the limited reporting and
financial constraints of bond or parole or
probation, or the run of the prison in contrast
to the approximation to solitary confinement
that is disciplinary segregation—then habeas
corpus is his remedy.

Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991). In
reaching this conclusion, Graham distinguished challenges
seeking release from one type of custody to another from
cases challenging prison conditions. See id. (stating that if a
prisoner is “seeking a different program or location or
environment, then he is challenging the conditions rather than
the fact of his confinement and his remedy is under civil
rights law, even if, as will usually be the case, the program or
location or environment that he is challenging is more
restrictive than the alternative that he seeks.”).

We are bound by our ruling in Bostic, because the
Supreme Court’s case law is not “clearly irreconcilable” with
our earlier determination that we have habeas jurisdiction
over a claim that would result in release from disciplinary
segregation to the general prison population. See Gammie,
335 F.3d at 893. The Court has long indicated that a
prisoner’s claim for release from one form of custody to
another, less restrictive form of custody, can be brought in a
habeas petition. See Skinner, 131 S. Ct. at 1299 (suggesting
that habeas was available where the relief sought would
reduce the level of custody); Preiser, 411 U.S. at 486 (stating
there is habeas jurisdiction for claims seeking release on
parole, bail, or on one’s own recognizance); see also Garlotte
26 NETTLES V. GROUNDS

v. Fordice, 515 U.S. 39, 47 (1995) (prisoner’s claim seeking
speedier release from imprisonment to parole was cognizable
in habeas). And the Court has not directly addressed the
question whether a challenge to the degree of constraints in
prison (such as a release from administrative or disciplinary
segregation) is a claim seeking release from custody, or
merely a challenge to conditions of confinement. See Close,
540 U.S. at 751 n.1 (declining to rule on the question whether
a prisoner might have a habeas claim to challenge “special
disciplinary confinement for infraction of prison rules”); see
also Dotson, 544 U.S. at 86 (Scalia, J. concurring)
(suggesting that “permissible habeas relief” could include a
“quantum change in the level of custody”) (citing Graham,
922 F.2d at 381)). Accordingly, we remain bound by the
determination in Bostic that a prisoner can seek expungement
of an incident from his disciplinary record when that would
lead to speedier release from disciplinary segregation.10 See
Bostic, 884 F.2d at 1269. As suggested in Graham, however,
a prisoner who is not seeking a quantum change in the level
of custody, such as release from disciplinary segregation to
the general prison population, or release from prison on bond,

10
After concluding it had no need to address the validity of an order
releasing a prisoner from disciplinary segregation, Griffin nevertheless
noted in passing that Skinner now precluded such an order from issuing
in a habeas petition. See Griffin, 741 F.3d at 17–18 & nn. 14–15. While
we agree with Griffin’s conclusion that Skinner precludes a prisoner from
challenging conditions of confinement in habeas, we disagree with
Griffin’s extension of this rule to preclude habeas challenges to quantum
changes in levels of custody. Because Griffin uttered this overly
restrictive gloss on Skinner “casually and without analysis,” and “in
passing without due consideration of the alternatives” as “a prelude to
another legal issue that command[ed] the panel’s full attention,” it is not
binding precedent in our circuit. In re Wal–Mart Wage & Hour Emp’t
Practices Litig., 737 F.3d 1262, 1268 n.8 (9th Cir. 2013); see also In re
Magnacom Wireless, LLC, 503 F.3d 984, 993–94 (9th Cir. 2007).
 NETTLES V. GROUNDS 27

parole, or probation, but is merely “seeking a different
program or location or environment” even if “the program or
location or environment that he is challenging is more
restrictive than the alternative that he seeks,” does not meet
the requirement in Skinner.11 See Graham, 922 F.2d at 381.

Here, Santos claims that the process by which he was
validated as a gang member violated his due process rights,
and, as a result of this unconstitutional validation, he was
confined in the SHU, which is a disciplinary segregation
facility imposing a greater quantum of custody. The remedy
Santos seeks of expungement of the gang validation from his
record and release from the SHU to the general prison
population, “can fairly be described as a quantum change in
the level of custody.” See id. at 381. Additionally, success
on his claim would result in his immediate release from the
SHU to the general prison population. His claim that he has

11
Prior to Skinner, there was a circuit split over “the question of the
propriety of using a writ of habeas corpus to obtain review of the
conditions of confinement, as distinct from the fact or length of
confinement.” Spencer v. Haynes, 774 F.3d 467, 470–71 & n.6 (8th Cir.
2014) (quoting Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979)). As
explained in Spencer, the D.C., Second, Third, Fourth, and Sixth Circuits
“firmly [stood] in the camp of allowing conditions-of-confinement claims
to be brought in the habeas corpus context,” whereas the Eighth, Fifth,
Seventh, Ninth, and Tenth Circuits held that habeas petitions are not
“appropriate procedural vehicles by which to remedy conditions-of-
confinement claims.” Id. Skinner goes a long way towards resolving this
circuit split by holding that relief is available to a prisoner under the
federal habeas statute only if success on the claim would “necessarily spell
speedier release from custody,” including termination of custody,
acceleration of the future date of release from custody, or reduction of the
level of custody. See Griffin, 741 F.3d at 17 & n.15. But cf. Aamer v.
Obama, 742 F.3d 1023, 1026 (D.C. Cir. 2014) (concluding, after Skinner
was decided but without discussing it, that challenges to the conditions of
confinement “properly sound in habeas corpus”).
28 NETTLES V. GROUNDS

been subjected to greater restrictions of his liberty without
due process of law is therefore properly brought as a petition
for a writ of habeas corpus.12 See Skinner, 131 S. Ct. at 1299
& n.13; Bostic, 884 F.2d at 1269. Because the district court
erred in dismissing Santos’s petition, we remand to the
district court for further proceedings on the merits of Santos’s
claim.

AFFIRMED IN APPEAL NO. 12-16935, REVERSED
AND REMANDED IN APPEAL NO. 13-15050.

MURGUIA, Circuit Judge, concurring in part, and dissenting
in part:

I disagree with the majority that the Supreme Court
expressly “rul[ed] on the outer limits of habeas jurisdiction”
in Skinner v. Switzer, 131 S. Ct. 1289 (2011). See Majority
17. Skinner addressed whether a prisoner’s civil rights action
could proceed under 42 U.S.C. § 1983, and did not involve a
federal habeas petitioner, much less the scope of relief
available under 28 U.S.C. § 2254. See Skinner, 131 S. Ct. at
1297 (“We take up here only the questions whether there is
federal-court subject-matter jurisdiction over Skinner’s
complaint, and whether the claim he presses is cognizable

12
Because we conclude that Santos’s claim that his gang validation
resulted in an increased level of custody is sufficient to render the claim
cognizable under the federal habeas statute, we need not address Santos’s
additional argument that his claim is cognizable because his gang
validation also effectively deprived him of any meaningful opportunity for
release on parole and resulted in the loss of the right to earn good-time
credit.
 NETTLES V. GROUNDS 29

under § 1983.” (emphasis added)). To accept the majority’s
strained reading of Skinner we have to believe that the
Supreme Court, after leaving the issue open for over forty
years,1 conclusively determined the outer boundaries of
habeas jurisdiction in a footnote of a case that did not involve
a habeas petition. We likewise must ignore the Court’s
explicit limitation that its decision was not intended to forge
new law, see Skinner, 131 S. Ct. at 1299 n.13 (stating that
Skinner should not be interpreted to “mov[e] the line” drawn
by the Court’s earlier decisions) (quoting Wilkinson v.
Dotson, 544 U.S. 74, 84 (2005)), and accept that the Supreme
Court implemented this drastic change to habeas jurisdiction
through an ambiguous statement rather than by clear
direction.

Given these hurdles, I cannot agree with the majority that
Skinner’s holding is clearly irreconcilable with our court’s
decisions in Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir.
1989) (habeas jurisdiction is proper when a prisoner seeks
expungement of a disciplinary finding if “expungement is
likely to accelerate the prisoner’s eligibility for parole”), and
Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004)
(habeas jurisdiction is proper when a prisoner’s challenge to
parole procedures “could potentially affect the duration of . . .
confinement”) (emphasis in original)). Even if the majority is
correct that the footnote signals an answer to the issue the
Supreme Court left open in Preiser, the majority is not free to
disregard binding case law absent much clearer direction
from the Supreme Court. See United States v. Green,
722 F.3d 1146, 1150 (9th Cir. 2013). Because the majority’s

1
See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (declining to
address the “limits of habeas corpus as an alternative remedy to a proper
action under [42 U.S.C.] § 1983”).
30 NETTLES V. GROUNDS

holding exceeds the scope of authority granted to a three
judge panel of our court, I must dissent.

I

By concluding that Bostic and Docken are clearly
irreconcilable with Skinner, the majority fails to apply the
requisite level of deference to our binding precedent. “As a
three-judge panel of this circuit, we are bound by prior panel
decisions . . . and can only reexamine them when their
‘reasoning or theory’ of that authority is ‘clearly
irreconcilable’ with the reasoning or theory of intervening
higher authority.” Rodriguez v. AT & T Mobility Servs. LLC,
728 F.3d 975, 979 (9th Cir. 2013) (quoting Miller v. Gammie,
335 F.3d 889, 893 (9th Cir. 2003) (en banc)). There is no
question that “clearly irreconcilable” is a “high standard.”
Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012) (internal
quotation marks and citation omitted). Intervening higher
authority is not clearly irreconcilable simply because there
exists “‘some tension’ between the intervening higher
authority and prior circuit precedent” or because “the
intervening higher authority . . . ‘cast[s] doubt’ on the prior
circuit precedent.” Lair, 697 F.3d at 1207 (internal citations
omitted). Indeed, even “‘strong[] signals’” from the Supreme
Court “aren’t enough” for a “three-judge panel to overrule
existing circuit precedent.” Green, 722 F.3d at 1150 (quoting
Miller, 335 F.3d at 900).

In Skinner, a state prisoner filed a § 1983 action alleging
that the State’s refusal to release certain biological evidence
for DNA testing violated his due process rights. 131 S. Ct. at
1296. The State sought dismissal of Skinner’s complaint on
the basis that Skinner was using his § 1983 action “as a
platform for attacking his conviction”—a complaint the State
 NETTLES V. GROUNDS 31

argued could “be pursued, if at all, in an application for
habeas corpus.” Id. at 1299. The Supreme Court narrowly
defined the issue implicated in Skinner, stating that the Court
was addressing only whether Skinner’s claim could proceed
under § 1983, not whether the same claim hypothetically
could be brought in a habeas petition. See 131 S. Ct. at 1297.
Answering the narrow question before it, the Supreme Court
held that Skinner’s claim was cognizable under § 1983
because the claim did not implicate core habeas jurisdiction.
Id. at 1298. The Court reasoned that “[s]uccess in [Skinner’s]
suit for DNA testing would not ‘necessarily imply’ the
invalidity of his conviction” because a conclusion that DNA
testing would ultimately prove Skinner’s innocence was
anything but certain. Id. This holding reiterated what the
Court has previously held: “core” habeas claims—claims that
necessarily spell immediate or speedier release from
confinement—must be brought in habeas, while non-core
claims may be brought under § 1983. See Dotson, 544 U.S.
at 81–82 (surveying governing Supreme Court authority).

The majority reads Skinner differently, concluding that a
single sentence of dicta in footnote 13 forecloses habeas
jurisdiction for all non-core claims, including claims that
closely relate to core habeas proceedings—i.e., claims that, if
successful, will not necessarily result in speedier release but
could affect the duration of confinement. See, e.g., Bostic,
884 F.2d at 1269 (expungement of a disciplinary finding if
“expungement is likely to accelerate the prisoner’s eligibility
for parole”); Docken 393 F.3d at 1031 (when challenged
parole procedures “could potentially affect the duration of
[the prisoner’s] confinement”)).

The majority’s strained reading of Skinner hinges on the
following sentence in footnote 13: “[Wilkinson v.] Dotson
32 NETTLES V. GROUNDS

declared . . . in no uncertain terms, that when a prisoner’s
claim would not ‘necessarily spell speedier release,’ that
claim does not lie at ‘the core of habeas corpus,’ and may be
brought, if at all, under § 1983.”2 Skinner, 131 S. Ct. at 1297
n.13 (quoting Dotson, 544 U.S. at 84). Reading this
statement in isolation, the majority creates what it coins “the
Skinner standard” and determines that “we are bound by the
Court’s express statement in Skinner that relief is available to
a prisoner under the federal habeas statute only if success on
the claim would ‘necessarily spell speedier release’ from
custody.” In doing so, the majority abrogates our prior
decisions in Bostic and Docken, where our court held that a

2
Footnote 13, in its entirety, reads as follows:

Unlike the parole determinations at issue in Wilkinson
v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d
253 (2005), Switzer urges, claims like Skinner’s require
inquiry into the State’s proof at trial and therefore lie at
“the core of the criminal proceeding itself.” Tr. of Oral
41; see id., at 33–34. Dotson declared, however, in no
uncertain terms, that when a prisoner’s claim would not
“necessarily spell speedier release,” that claim does not
lie at “the core of habeas corpus,” and may be brought,
if at all, under § 1983. 544 U.S., at 82, 125 S.Ct. 1242
(majority opinion) (internal quotation marks omitted);
see id., at 85–86, 125 S.Ct. 1242 (Scalia, J.,
concurring). Whatever might be said of Switzer’s
argument were we to recast our doctrine, Switzer’s
position cannot be reconciled with the line our
precedent currently draws. Nor can the dissent’s
advocacy of a “retur[n] to first principles.” Post, at
1303–1304. Given the importance of providing clear
guidance to the lower courts, “we again see no reason
for moving the line our cases draw.” Dotson, 544 U.S.,
at 84, 125 S.Ct. 1242.

Skinner, 131 S. Ct. at 1299 n.13.
 NETTLES V. GROUNDS 33

prisoner’s claims are properly brought under § 2254 so long
as the claim, if successful, would likely accelerate parole
eligibility, Bostic, 884 F.2d at 1269, or “could potentially
affect the duration of . . . confinement.” Docken, 393 F.3d at
1031. I believe the majority is wrong and has exceeded its
authority.3

3
Notably, the majority justifies its interpretation of Skinner by arguing
that its opinion is “consistent with the interpretation adopted by two prior
panels.” Majority at 18 n.8 (citing Blair, 645 F.3d at 1157–58; Griffin,
741 F.3d at 17 & n.15). The majority’s reliance on these cases is curious,
and most certainly misplaced, particularly because Griffin’s brief mention
of habeas jurisdiction appears to conflict with the majority’s holding in
Santos’s appeal. Griffin involved a California state prisoner who, like
Santos, was a validated gang member who challenged his placement in the
prison’s segregated security housing unit. 741 F.3d at 11. In a 2006
order, the district court granted Griffin’s habeas petition and ordered that
he be released from segregated housing. Id. at 14. The order was too late;
Griffin had been charged in a federal RICO case and was in federal, not
state, custody. Id. Griffin was subsequently transferred back to state
prison and he sought enforcement of the 2006 order. “Procedurally,” the
case before this Court was “a mess.” Id. at 17. Relevant here is the
Griffin panel’s dicta involving the 2006 order, where the panel stated that
although the Ninth Circuit had previously held that such orders could issue
on habeas, “the Supreme Court has since held otherwise.” Id. at 17 &
n.15 (citing Skinner, 131 S.Ct. at 1299 n.13). Here, the majority contends
its interpretation of Skinner “is consistent” with Griffin’s, but the
majority’s holding in Santos, where the petitioner seeks relief identical to
the relief issued in the 2006 order, is in direct conflict with Griffin’s dicta.
Majority at 25 (“The Court has long indicated that a prisoner’s claim for
release from one form of custody to another, less restrictive form of
custody, can be brought in a habeas petition.”); id. at 27–28 (Santos’s
“claim that he has been subjected to greater restrictions of his liberty
without due process of law is therefore properly brought as a petition for
a writ of habeas corpus.”).

The majority’s reliance on Blair is no more compelling. In Blair, a
habeas petitioner argued that his right to due process was violated because
the California Supreme Court was taking too long to resolve his direct
34 NETTLES V. GROUNDS

To begin with, the “express statement” on which the
majority relies is by no means a clear statement of intent by
the Supreme Court. The sentence states that the Supreme
Court’s decision in Dotson “declared . . . in no uncertain
terms” that only core habeas claims can be pursued under
§ 2254. This statement, however, is inherently ambiguous
given that nothing in Dotson’s holding or reasoning supports
the legal conclusion. As in Skinner, Dotson involved only
whether prisoners seeking relief under § 1983 could pursue
those claims in a civil rights action or, the corollary, whether
the prisoner’s claims implicated “core” habeas jurisdiction
and were therefore Heck-barred. See 544 U.S. at 82–84
(noting prisoners can pursue relief under § 1983 without
exhausting habeas remedy when success in the suit will not
necessarily shorten the prisoner’s sentence). The Court in
Dotson held that the prisoners’ claims—which alleged that
the state’s retroactive application of harsher parole guidelines
violated the Ex Post Facto clause—could proceed under

appeal. 645 F.3d at 1153. By the time the claim reached the Ninth
Circuit, the California Supreme Court had already affirmed the petitioner’s
direct appeal on the merits, prompting the panel in Blair to dismiss the
claim as moot. Id. The panel’s mootness holding renders its subsequent
discussion of habeas jurisdiction an advisory opinion. See Church of
Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (“[A] federal
court has no authority ‘to give opinions upon moot questions or abstract
propositions, or to declare principles or rules of law which cannot affect
the matter in issue in the case before it.’” (quoting Mills v. Green,
159 U.S. 651, 653 (1895)); see also U.S. ex rel. Bledsoe v. Cmty. Health
Sys., Inc., 501 F.3d 493, 507 (6th Cir. 2007).

Materially, in their brief discussions of habeas jurisdiction, Blair and
Griffin did not cite to a single Ninth Circuit habeas case, much less decide
that Bostic and Docken are clearly irreconcilable with Skinner. The
majority exceeds its authority by reaching this conclusion today. See
Green, 722 F.3d at 1150.
 NETTLES V. GROUNDS 35

§ 1983. Nothing in the Court’s decision mandated that such
claims be brought in a civil rights action. Id. Despite the
majority relying entirely on dicta quoting the legal principle
announced in Dotson, the majority is notably silent about the
fact that Dotson itself does not support the majority’s
holding.

There are several additional reasons that undercut the
majority’s conclusion that Skinner redefined habeas
jurisdiction. The issue in Skinner involved “only . . . whether
the claim [Skinner] presses is cognizable under § 1983,” and
the case did not involve a petition for writ of habeas corpus
under § 2254, much less implicate the outer bounds of habeas
jurisdiction. See 131 S. Ct. at 1297. In fact, despite many
opportunities to address this issue, the Supreme Court has
notably refrained from defining the scope of habeas
jurisdiction for over four decades. See Preiser, 411 U.S. at
500. Ironically, the majority’s conclusion that Skinner finally
answers this open question conflicts with the very footnote on
which the majority’s holding relies. The footnote expressly
cautions against reading Skinner to “mov[e] the line” drawn
by the Court’s earlier decisions. 131 S. Ct. at 1299 n.13
(“Given the importance of providing clear guidance to the
lower courts, ‘we again see no reason for moving the line our
cases draw.’” (quoting Dotson, 544 U.S. at 84)).

Given the narrow issue before the Court in Skinner, and
the Court’s explicit limitation in footnote 13 that its decision
was not intended to forge new law, I cannot agree with the
36 NETTLES V. GROUNDS

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

II

We review de novo a district court’s decision to deny a
petition for habeas corpus. Bailey v. Hill, 599 F.3d 976, 978
(9th Cir. 2010). Because Skinner does not abrogate our case
law defining the scope of habeas jurisdiction, these
consolidated appeals are governed by the law of this circuit.
With respect to Matta Juan Santos’s appeal, the majority
agrees that Skinner “is not ‘clearly irreconcilable’ with our
earlier determination that we have habeas jurisdiction over a
claim that would result in release from disciplinary
segregation to the general prison population.” Majority at 25.
I therefore concur in Section III.B. of the majority opinion,
which reverses the district court’s dismissal for lack of
jurisdiction and remands for the district court to consider the
merits of Santos’s habeas petition. Because I disagree that

4
To support its holding, the majority cites a number of pragmatic
reasons for adopting its interpretation of Skinner. For example, the
majority contends that its holding “not only provides guidance to prisoners
regarding the correct form of action for their claims, but also resolves
much of the understandable confusion of prison officials regarding which
prisoner claims are cognizable in habeas.” Majority at 19 n.9. I agree that
the majority’s holding draws a clear distinction between habeas
jurisdiction and jurisdiction under § 1983 that will be easier to implement
than our current jurisprudence. But no matter how practical the majority’s
rule may be, and regardless of whether the Supreme Court will someday
agree with the majority, the single sentence of dicta in Skinner does not
give a three-judge panel authority to overrule the law that binds us now.
See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (court of appeals “was
correct” in adhering to binding precedent despite recognizing an
“infirm[]” Supreme Court decision that the court of appeals rightly
predicted would be overturned by the Supreme Court).
 NETTLES V. GROUNDS 37

the majority’s newly created “Skinner standard” governs
Nettles’s appeal, I write separately and evaluate Nettles’s
claim under our court’s established authority. Applying
controlling circuit authority, I would reverse the district
court’s order of dismissal because Nettles has sufficiently
alleged a claim cognizable under § 2254.

A

Damous Nettles, who is a California state prisoner serving
an indeterminate life term for the heinous crimes described at
length in the majority opinion, majority at 5–8, challenges a
disciplinary finding in his prison record, which concluded
that Nettles threatened to stab a correctional officer on
February 26, 2008. In his federal habeas petition, Nettles
argues that he was denied the opportunity to defend against
the allegation because prison officials falsified evidence and
refused to allow Nettles to present testimony from
exculpatory witnesses, in violation of his constitutional rights.
As a result of this disciplinary finding, Nettles was placed in
segregated housing for four months, and he lost thirty days of
post-conviction credit.

The February 26, 2008 violation, and others, was
considered by the parole board a year later, on July 30, 2009,
when the board convened for a parole suitability hearing and
determined that Nettles was not suitable for parole because he
“still pose[d] an unreasonable risk of danger if released from
prison.” Under California law, if a prisoner is deemed
unsuitable for parole, the board has discretion to determine
when to schedule the next hearing—either 3, 5, 7, 10, or 15
years after the hearing at which parole is denied. Cal. Penal
Code § 3041.5(b)(3). Without analysis, the board set Nettles’
next parole hearing for 2019—ten years later.
38 NETTLES V. GROUNDS

In his federal habeas petition, Nettles asserts that “before
the 2008 [violation] for threatening an officer, Nettles had
gone a full decade without any disciplinary action for drugs
or violence; if he is able to expunge the [violation], he would
take to the Board today fifteen years free of any actions
relating to drugs or violence.” He asserts that because the
parole board must consider serious rule violations as a factor
tending to show the prisoner is unsuitable for parole, Cal.
Code Regs. tit. 15, §2402(c)(6), expungement of his vile 2008
offense would result in a “significant change in evidence
probative of his current dangerousness.” Nettles also
contends that expungement will likely advance his next
parole hearing because he will be able to show a “change in
circumstances or new information” related to his current
dangerousness. See Cal. Pen. Code § 3041.5(d)(1).

Nettles could be right; he could also be wrong. But,
adhering to our binding precedent, the question before us is
not what the parole board will ultimately decide should
Nettles successfully expunge his 2008 rules violation or what
we would do if we were sitting as parole commissioners.
Indeed, “[w]e are ill-inclined . . . to substitute our substantive
analysis of the likely outcome of [Nettles]’ parole hearings
for that of the Board.” Docken, 393 F.3d at 1031. The
question before us is only whether Nettles’ claim, if
successful, “could potentially affect the duration of . . .
confinement.” Id. (emphasis in original). Although Nettles’
2008 disciplinary violation for threatening to stab a prison
official was not the only, or even the primary, reason the
board denied Nettles parole, expungement of the offense
nonetheless could potentially affect the length of his
confinement. Nettles does not allege that expungement
would have caused the board to grant him parole in 2009.
Rather, he contends that expunging the offense will likely
 NETTLES V. GROUNDS 39

accelerate his next parole hearing by changing the
circumstances relevant to his current dangerousness; instead
of his prison record reflecting a threat to murder a
correctional officer in 2008, Nettles’ record will demonstrate
that he has not been involved in a drug or violent offense in
fifteen years. Under these circumstances, “[i]t is certainly at
least possible that [Nettles’] suit would impact the duration of
his confinement,” if the 2008 violation is expunged from his
record. See Docken, 393 F.3d at 1031. Because Nettles has
established a sufficient link between success in his claim and
the duration of his confinement, I would reverse the district
court’s order of dismissal and remand for the court to address
the merits of Nettles’ claim in the first instance.

~

For the foregoing reasons, I respectfully disagree with the
majority that the footnote of dicta in Skinner redefines the
scope of habeas jurisdiction and abrogates our prior decisions
in Bostic and Docken. Although I agree with the majority’s
determination that Santos’s claim may be brought under
§ 2254, I disagree that Nettles petition fails to assert a
cognizable habeas claim. I would therefore reverse and
remand in both cases because Santos and Nettles have each
asserted a cognizable habeas claim under the law of our
circuit. See Docken, 393 F.3d at 1031. I believe the
majority’s conclusion to the contrary exceeds the authority
granted to a three judge panel of this Court.