Damous Nettles v. Randy Grounds

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

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

RANDY GROUNDS, Warden,
Respondent-Appellee. OPINION

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

Argued and Submitted En Banc March 22, 2016
San Francisco, California

Filed July 26, 2016

Before: Sidney R. Thomas, Chief Judge and William A.
Fletcher, Marsha S. Berzon, Johnnie B. Rawlinson, Richard
R. Clifton, Consuelo M. Callahan, Sandra S. Ikuta,
N. Randy Smith, Mary H. Murguia, Jacqueline H. Nguyen
and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Ikuta;
Partial Concurrence by Judge Hurwitz;
Dissent by Judge Berzon
2 NETTLES V. GROUNDS

SUMMARY*

Habeas Corpus / Prisoner Civil Rights

The en banc court vacated the district court’s dismissal of
a matter, brought as a habeas corpus petition by a California
state prisoner serving a life sentence, challenging a
disciplinary violation on constitutional grounds and claiming
that the failure to expunge this violation from his record
could affect his eligibility for parole.

The en banc court held that a 42 U.S.C. § 1983 action is
the exclusive vehicle for claims brought by state prisoners
that are not within “the core of habeas corpus.” Preiser v.
Rodriguez, 411 U.S. 475, 487 (1973). In so holding, the en
banc court overruled Docken v. Chase, 393 F.3d 1024 (9th
Cir. 2004), and Bostic v. Carlson, 884 F.2d 1267 (9th Cir.
1989), to the extent they are inconsistent with this rule.

The en banc court held that the prisoner’s claim does not
fall within “the core of habeas corpus” because success on the
claim would not necessarily lead to immediate or speedier
release since the expungement of the challenged disciplinary
violation would not necessarily lead to a grant of parole.

The en banc court joined sister circuits in holding that a
district court may construe a petition for habeas corpus to
plead a cause of action under § 1983 after notifying and
obtaining informed consent from the prisoner.

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

The panel remanded for further proceedings.

Concurring in part, Judge Hurwitz joined Parts I, II(A),
III, and IV of Judge Ikuta’s opinion. He wrote that Skinner
v. Switzer, 562 U.S. 521 (2011), is an unambiguous
indication of the Supreme Court’s view on the issue in this
case, and that parsing the language or history of 28 U.S.C.
§ 2254 is unnecessary.

Judge Berzon dissented. She wrote that the majority’s
response – that if the prisoner were successful on his claim,
it “would not necessarily lead to his immediate or earlier
release from confinement,” because the parole board could
deny him parole even without considering the disciplinary
proceeding at issue – flouts this court’s normal approach to
alleged violations of procedural rights and is inconsistent
with the statutes and precedents governing petitions for
habeas corpus.

COUNSEL

John P. Balazs (argued), Sacramento, California; Monica
Knox, Assistant Federal Defender; Heather Williams, Federal
Defender; Office of the Federal Defender, Sacramento,
California; for Petitioner-Appellant.

Phillip J. Lindsay (argued), Supervising Deputy Attorney
General; Jennifer A. Neill, Senior Assistant Attorney
General; Kamala D. Harris, Attorney General of California;
Office of the Attorney General, Sacramento, California; for
Respondent-Appellee.
4 NETTLES V. GROUNDS

OPINION

IKUTA, Circuit Judge:

Damous Nettles, a prisoner serving a life sentence in
California prison, appeals the district court’s dismissal of his
habeas petition for lack of jurisdiction. The petition
challenged a disciplinary violation on constitutional grounds
and claimed that the failure to expunge this violation from his
record could affect his eligibility for parole. We conclude
that because Nettles’s claim does not fall within the “core of
habeas corpus,” Preiser v. Rodriguez, 411 U.S. 475, 487
(1973), it must be brought, if at all, under 42 U.S.C. § 1983.

I

In 1990, Nettles was convicted in California of attempted
first degree murder with the use of a firearm and other
offenses. The victim was a woman who had filed a complaint
against Nettles’s brother. In order to prevent her from
testifying, Nettles took the victim down an alley, ordered her
onto her hands and knees, and told her “You’re not going to
testify against my brother. I’m going to kill you.” Nettles
then shot her twice in the left ear and left her in the alley.
The victim did not die, but was seriously injured and
disfigured.

Nettles was convicted for attempted murder and
dissuading and conspiring to dissuade a witness from
attending or giving testimony at trial. He was sentenced to
prison for a determinate term of twelve years and a life term
with the possibility of parole.
 NETTLES V. GROUNDS 5

Under California law, prisoners with life terms like
Nettles may not be released before their minimum eligible
parole date (MEPD). Cal. Penal Code § 3041(a)(4). One
year before a prisoner’s MEPD, a panel of the Board of
Parole Hearings will meet with the prisoner and determine if
the prisoner is suitable for parole. Id. § 3041(a)(2). “[A] life
prisoner shall be found unsuitable for and denied parole if in
the judgment of the panel the prisoner will pose an
unreasonable risk of danger to society if released from
prison.” Cal. Code Regs. tit. 15, § 2281(a). In determining
the prisoner’s suitability for parole, the panel must consider
“all relevant” information, id. § 2281(b), including
disciplinary actions received during imprisonment. If the
prisoner is suitable for parole and has reached the MEPD, the
prisoner is entitled to release. Cal. Penal Code § 3041(a).1 If
the panel determines that the prisoner is unsuitable for parole,
the Board of Parole Hearings will schedule a future hearing
that could take place from three to fifteen years after the
previous hearing, as directed by statutory criteria. Id.
§ 3041.5(b)(3). Once every three years, an inmate may
request the board to exercise its discretion to accelerate the
next hearing. Id. § 3041.5(d).

An initial parole consideration hearing for Nettles was
held in 2004 after the presiding parole commissioner
determined that Nettles’ MEPD was October 19, 2005.
Before that hearing, prison staff had issued some thirty-nine
rules violations reports to Nettles. These reports are issued
for misconduct that “is believed to be a violation of law or is

1
Before state law changed on January 1, 2016, a prisoner’s post-
conviction credits were a factor in determining the date the prisoner was
entitled to release. Cal. Penal Code § 3041(a) (2015). This is no longer
the case.
6 NETTLES V. GROUNDS

not minor in nature.” Cal. Code Regs. tit. 15, § 3312(a)(3).
Nettles also received numerous citations for lesser types of
misconduct. See id. § 3312(a)(2). At Nettles’s initial parole
hearing in 2004, the Board of Prison Terms (now the Board
of Parole Hearings, or Board)2 deemed Nettles to be
unsuitable for parole. It scheduled the next parole suitability
hearing for 2006, but the date was postponed several times.

After 2004, Nettles received seven additional rules
violations reports. On February 26, 2008, staff issued Nettles
a rules violation report for threatening to stab a corrections
officer. After an investigation of the incident and a hearing,
Nettles was found guilty and given a four-month term in the
segregated housing unit. He also lost thirty days of post-
conviction credit.

On July 30, 2009, the Board convened a second parole
suitability hearing for Nettles. At the hearing, the presiding
commissioner first described the facts of Nettles’s crime of
conviction, characterizing it as “one of the most atrocious and
cruel acts I’ve read” and stating that Nettles’s motive was
“ridiculously heinous.” The commissioner then reviewed
Nettles’s prior criminal history. Nettles had a long string of
convictions beginning at age seventeen and had been in and
out of prison for offenses including possession of drugs,
assault with a deadly weapon, battery on a peace officer, and
robbery. Nettles was on parole for the robbery conviction
when he committed the attempted murder for which he was
sentenced to life imprisonment. The commissioner stated that

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

Nettles’s lengthy criminal history illustrated his inability to
learn from prior incarcerations.

The commissioner next explained the hearing panel’s
concerns about Nettles’s mental state and attitude about the
crime. In the hearing panel’s view, Nettles’s letter to the
victim did not express true remorse. Further, Nettles had not
taken responsibility for his conduct and lacked insight that
would enable him to change his behavior. The commissioner
discussed a May 2007 psychological report, which gave
Nettles “a rating of overall moderate likelihood to become
involved in a violent offense if released.” Finally, the
commissioner stated that Nettles was argumentative and
stubborn, “challenge[d] authority at every given opportunity,”
and refused to restrain himself, as evidenced by his numerous
rules violations. The commissioner noted the forty-six rules
violation reports that had been issued to Nettles while he was
in prison. Nettles “continued to display negative behavior
while incarcerated,” and as a result was placed in segregated
housing. Moreover, Nettles had not taken any significant
steps to gain skills to function outside of prison.
Nevertheless, a deputy commissioner noted some positive
steps Nettles had taken, including a slight reduction in the
number of rules violations reports issued to Nettles in recent
years.

The panel of the Board of Parole Hearings concluded that
Nettles was unsuitable for parole because he “still pose[d] an
unreasonable risk of danger if released from prison.” This
finding was “based on weighing the considerations provided
in the California Code of Regulations.” As authorized by the
regulations, the commissioner made recommendations
regarding “what steps may be undertaken to enhance the
possibility of a grant of parole at a future hearing,” Cal. Code
8 NETTLES V. GROUNDS

Regs. tit. 15, § 2304, telling Nettles that “[f]or next time, you
certainly need to become and remain disciplinary free.”

On January 23, 2009, Nettles filed a habeas petition in the
state trial court claiming, in relevant part, that the 2008 rules
violation report was illegal and that the disciplinary
proceedings held in connection with the 2008 rules violation
report violated his due process rights. The court denied the
petition, concluding that Nettles failed to exhaust his
administrative remedies concerning these claims.3 The
California Court of Appeal and California Supreme Court
then summarily denied the petition.

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

The district court dismissed Nettles’s petition, holding
that he could not show that expungement of the 2008 rules

3
As the state acknowledges, it did not argue to the district court that
Nettles’s claim was procedurally barred. Nor does the state raise this issue
on appeal. Therefore, we do not address it.
 NETTLES V. GROUNDS 9

violation report was likely to accelerate his eligibility for
parole. Nettles timely appealed the district court’s decision.

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

II

The Supreme Court has recognized that “[f]ederal law
opens two main avenues to relief on complaints related to
imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254,
and a complaint under the Civil Rights Act of 1871 . . .
42 U.S.C. § 1983.” Muhammad v. Close, 540 U.S. 749, 750
(2004) (per curiam). “Challenges to the validity of any
confinement or to particulars affecting its duration are the
province of habeas corpus; requests for relief turning on
circumstances of confinement may be presented in a § 1983
action.” Id. (internal citation omitted). The Court has long
held that habeas is the exclusive vehicle for claims brought by
state prisoners that fall within the core of habeas, and such
claims may not be brought in a § 1983 action. See, e.g.,
Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005)
(characterizing the Court’s precedents as holding “that a state
prisoner’s § 1983 action is barred (absent prior
invalidation)—no matter the relief sought (damages or
equitable relief), no matter the target of the prisoner’s suit
(state conduct leading to conviction or internal prison
proceedings)—if success in that action would necessarily
demonstrate the invalidity of confinement or its duration”).
Based on our review of the development of the Court’s case
law in this area, we now adopt the correlative rule that a
10 NETTLES V. GROUNDS

§ 1983 action is the exclusive vehicle for claims brought by
state prisoners that are not within the core of habeas corpus.

A

The Supreme Court first addressed the scope of § 1983
vis-a-vis the scope of habeas in the leading case of Preiser v.
Rodriguez, 411 U.S. 475 (1973). In Preiser, state prisoners
who had lost good-time credits as a result of disciplinary
proceedings brought an action under § 1983 for restoration of
the credits on the ground that the proceedings violated their
due process rights. Id. at 476–77. The prisoners would have
been entitled to immediate release from prison if their good-
time credits had been restored, and the Court therefore
concluded that habeas was the exclusive remedy for these
claims. Id. at 500. Although “the literal terms of § 1983
might seem to cover” claims that a prisoner’s confinement
violated the Constitution, id. at 489, the language of the
habeas statute is more specific, and the writ’s history makes
clear that it traditionally “has been accepted as the specific
instrument to obtain release from [unlawful] confinement,”
id. at 486. Further, “habeas corpus actions require a
petitioner fully to exhaust state remedies, which § 1983 does
not.” Wilkinson, 544 U.S. at 79 (citing Preiser, 411 U.S. at
490–91). Based on “[t]hese considerations of linguistic
specificity, history, and comity,” the Court concluded that
Congress intended to make “an implicit exception from
§ 1983’s otherwise broad scope for actions that lie ‘within the
core of habeas corpus.’” Id. (quoting Preiser, 411 U.S. at
487). The claims at issue in Preiser, which would have
resulted in immediate release if successful, fell within the
core of habeas corpus and therefore had to be brought, if at
all, in habeas. See id.
 NETTLES V. GROUNDS 11

In a series of cases after Preiser, the Supreme Court
distinguished between different sorts of state prisoner claims,
indicating which claims were in the “core of habeas corpus,”
Preiser, 411 U.S. at 489, and thus could be brought only in a
habeas petition, and which claims fell outside that core and
could be brought in a § 1983 action. In Wolff v. McDonnell,
the Court considered a § 1983 class action brought by state
prisoners challenging prison rules, practices, and procedures
and seeking restoration of good-time credits, injunctive relief,
and damages. 418 U.S. 539, 542–44 (1974). The Court held
that the plaintiffs’ claims for restoration of good-time credits
were in the core of habeas and therefore outside the scope of
§ 1983. Id. at 554. By contrast, claims challenging a prison’s
“procedures for depriving prisoners of good-time credits” and
seeking damages or a prospective injunction—claims which
would not necessarily lead to an earlier release—could be
brought in a § 1983 action. Id. at 554 (emphasis added).

In Heck v. Humphrey, a state prisoner brought a § 1983
action for compensatory and punitive money damages against
state officials who had allegedly engaged in unconstitutional
procedures in their investigation and handling of evidence.
512 U.S. 477, 478–79 (1994). Analogizing the prisoner’s
§ 1983 action to the common-law cause of action for
malicious prosecution, id. at 484, the Court held that a
plaintiff could not bring a § 1983 action “that necessarily
require[d] the plaintiff to prove the unlawfulness of his
conviction or confinement,” id. at 486. To bring such an
action, the plaintiff would first have to prove that the
conviction or sentence was eliminated, including “by a
federal court’s issuance of a writ of habeas corpus.” Id. at
486–87. By contrast, an action that, “even if successful, will
not demonstrate the invalidity of any outstanding criminal
judgment” falls within § 1983’s scope. Id. at 487. This
12 NETTLES V. GROUNDS

favorable termination rule polices “the intersection of the two
most fertile sources of federal-court prisoner litigation—
[§ 1983], and the federal habeas corpus statute,” id. at 480, by
ensuring that a court cannot address a § 1983 claim if doing
so would require it to first resolve a claim that falls within the
core of habeas corpus.

In Edwards v. Balisok, the Court held that a state
prisoner’s challenge under § 1983 that “would necessarily
imply the invalidity of the disciplinary hearing and the
resulting [deprivation of good-time credits]” fell within
habeas’s exclusive domain and was barred by the rule in
Heck, while a claim seeking an injunction barring future
unconstitutional procedures was within the scope of § 1983
action. 520 U.S. 641, 644, 648 (1997). The court later
clarified, in Muhammad v. Close, that such challenges to
disciplinary proceedings are barred by Heck only if the
§ 1983 action would be “seeking a judgment at odds with [the
prisoner’s] conviction or with the State’s calculation of time
to be served.” 540 U.S. at 754–55. If the invalidity of the
disciplinary proceedings, and therefore the restoration of
good-time credits, would not necessarily affect the length of
time to be served, then the claim falls outside the core of
habeas and may be brought in § 1983. See id.4

4
According to the dissent, Balisok held that Heck bars a prisoner from
bringing a § 1983 claim to challenge the procedures used in a disciplinary
hearing, even if the claim would not necessarily affect the prisoner’s
sentence. Dissent at 35–36. But Muhammad rejected this “mistaken
view” that Heck applies to “all suits challenging prison disciplinary
proceedings,” and clarified that Heck applies only to administrative
determinations that “necessarily” have an effect on “the duration of time
to be served.” 540 U.S. at 754–55; see also Wilkerson v. Wheeler,
772 F.3d 834, 840 (9th Cir. 2014) (holding that after Balisok, Muhammad
clarified that Heck does not bar a § 1983 claim that “threatens no
 NETTLES V. GROUNDS 13

In this series of cases, the Court made clear that habeas is
the exclusive vehicle for claims brought by state prisoners
that fall within the core of habeas and that such claims may
not be brought under § 1983, but the Court did not have
occasion to address the question whether § 1983 was the
exclusive vehicle for claims outside the core of habeas. In
subsequent cases, the Court began suggesting that § 1983 was
the sole remedy for such claims. See, e.g., Muhammad,
540 U.S. at 754–55. In Muhammad, the Supreme Court
limited the applicability of Heck by holding that a state
prisoner was entitled to challenge administrative
determinations that did not “raise any implication about the
validity of the underlying conviction” or “necessarily” affect
“the duration of time to be served” under § 1983 because
such a challenge “raised no claim on which habeas relief
could have been granted on any recognized theory.” Id. In
other words, Muhammad suggested, without holding, that the
scope of habeas is limited to claims in the core of habeas and
does not extend to a claim that does not necessarily challenge
the validity or duration of the underlying conviction or
sentence.

This suggestion that § 1983 and habeas are mutually
exclusive vehicles for prisoner claims appeared again in
Wilkinson v. Dotson, 544 U.S. at 82. In Dotson, state
prisoners brought a § 1983 action to challenge the state’s
practice of applying new parole procedures retroactively. Id.
at 76–77. Like earlier cases that had distinguished between
state prisoner claims that were in the “core of habeas,” and
thus could be brought only in a habeas petition, and those
which could be brought in a § 1983 action, Dotson concluded

consequence for [an inmate’s] conviction or the duration of [his or her
sentence]”).
14 NETTLES V. GROUNDS

that habeas was the exclusive vehicle for state prisoner claims
where “success in that action would necessarily demonstrate
the invalidity of confinement or its duration.” Id. at 82. But
a § 1983 action would lie where success on a claim means
only that a prisoner will be eligible for parole review, “which
at most will speed consideration of a new parole application.”
Id. In rejecting the dissent’s argument that habeas was
available for challenges to parole procedures and therefore
provided the exclusive vehicle for them, the Court suggested
that habeas was available only for claims that seek
“invalidation (in whole or in part) of the judgment
authorizing the prisoner’s confinement.” Id. at 83. The
concurring opinion in Dotson picked up this suggestion that
habeas was available only for claims in the core of habeas,
stating that it “would utterly sever the writ from its common-
law roots” to hold that “the habeas statute authorizes federal
courts to order relief that neither terminates custody,
accelerates the future date of release from custody, nor
reduces the level of custody.” Id. at 86 (Scalia, J.,
concurring).

Dotson’s suggestion that a § 1983 action is the exclusive
vehicle for state prisoner claims that are not within the core
of habeas was echoed more strongly in the Supreme Court’s
most recent pronouncement on this issue, Skinner v. Switzer.
562 U.S. 521 (2011). There, a state prisoner moved in state
court for DNA testing of certain crime scene evidence. Id. at
527–29. After the state court denied the motions, the prisoner
brought a federal action for injunctive relief under § 1983,
alleging a due process violation. Id. at 529. The district court
dismissed the action on the ground that “postconviction
requests for DNA evidence are cognizable only in habeas
corpus, not under § 1983.” Id. The Court disagreed and
indicated that the correct analysis was the exact opposite:
 NETTLES V. GROUNDS 15

because an action for DNA testing was not within the core of
habeas, it could be brought only in § 1983. Id. at 533–34,
535 n.13. In reaching this conclusion, the Court relied first
on the Dotson concurrence and its indication that habeas was
available only for claims in the core of habeas corpus. “It
suffices to point out that [the state] has found no case, nor has
the dissent, in which the Court has recognized habeas as the
sole remedy, or even an available one, where the relief sought
would ‘neither terminat[e] custody, accelerat[e] the future
date of release from custody, nor reduc[e] the level of
custody.’” Id. at 534 (quoting Dotson, 544 U.S. at 86 (Scalia,
J., concurring)). Second, rejecting the state’s argument that
a claim for DNA testing lay “at the core” of a criminal
proceeding and had to be brought in habeas, the Court instead
characterized its prior decision in Dotson as declaring “in no
uncertain terms, that when a prisoner’s claim would not
necessarily spell speedier release, that claim does not lie at
“the core of habeas corpus,” and may be brought, if at all,
under § 1983.” Id. at 535 n.13 (internal quotation marks
omitted). Skinner also alluded to the existence of a firm line
between habeas and § 1983, noting that the state’s argument
“cannot be reconciled with the line our precedent currently
draws” between habeas and § 1983, and suggested that the
core of habeas defines the contours of that line. See id.5

5
While “courts originally confined habeas relief to orders requiring the
petitioner’s unconditional release from custody,” we have recognized that
“[i]n modern practice” courts may “employ a conditional order of release
in appropriate circumstances, which orders the State to release the
petitioner unless the State takes some remedial action, such as to retry (or
resentence) the petitioner.” Harvest v. Castro, 531 F.3d 737, 741 (9th Cir.
2008). Contrary to the dissent, see Dissent at 37, this modern practice is
consistent with the standard for habeas relief noted in Dotson and Skinner,
because “the prisoner who shows his sentencing was unconstitutional is
actually entitled to release, because the judgment pursuant to which he is
16 NETTLES V. GROUNDS

We read these statements as strongly suggesting that
habeas is available only for state prisoner claims that lie at the
core of habeas (and is the exclusive remedy for such claims),
while § 1983 is the exclusive remedy for state prisoner claims
that do not lie at the core of habeas. Although the Supreme
Court has not provided an express ruling on the scope of
habeas, “we afford ‘considered dicta from the Supreme Court
. . . a weight that is greater than ordinary judicial dicta as
prophecy of what the court might hold.’” Managed
Pharmacy Care v. Sebelius, 716 F.3d 1235, 1246 (9th Cir.
2013) (quoting United States v. Montero-Camargo, 208 F.3d
1122, 1132 n.17 (9th Cir. 2000) (en banc)); see also United
States v. Baird, 85 F.3d 450, 453 (9th Cir. 1996) (“Although
the Daniel construction . . . may be dictum, we treat Supreme
Court dicta with due deference, and see no reason not to
apply the Court’s construction in the case at bar.”).

The dissent heavily relies on cases where prisoners in
federal custody brought habeas petitions under 28 U.S.C.
§ 2241 claiming that the Bureau of Prisons acted contrary to
a federal statute that authorized it to shorten the sentence of
a federal prisoner under certain circumstances. Dissent at
33–34, 45–47. See, e.g., Rodriguez v. Copenhaver, — F.3d
—, No. 14-16399, 2016 WL 3003423, at *4 (9th Cir. May 25,
2016); Close v. Thomas, 653 F.3d 970, 973–74 (9th Cir.
2011); Crickon v. Thomas, 579 F.3d 978, 982 (9th Cir. 2009).
None of these cases addressed the scope of habeas relief
available to federal prisoners under § 2241, and therefore they
shed no light on the issue before us. Nor do the Supreme
Court’s recent cases addressing the scope of habeas petitions

confined has been invalidated; the conditional writ serves only to ‘delay
the release . . . in order to provide the State an opportunity to correct the
constitutional violation.’” Dotson, 544 U.S. at 86 (Scalia, J., concurring).
 NETTLES V. GROUNDS 17

vis-à-vis § 1983 involve the rights of federal prisoners. See,
e.g., Skinner, 562 U.S. at 527; Dotson, 544 U.S. at 82.
Because the case before us involves a state prisoner’s action
under 28 U.S.C. § 2254, we need not address how the
standard suggested in Skinner and adopted here applies to
relief sought by prisoners in federal custody.6

B

Other factors support our adoption of the Supreme
Court’s strong suggestion that a § 1983 action is the exclusive
vehicle for claims that are not within the core of habeas.

First, such a conclusion is consistent with the analytical
framework in Preiser. In holding that § 1983 did not extend
to claims within the core of habeas, Preiser put great weight
on congressional intent in determining that Congress had
amended the habeas statutes to require the “exhaustion of

6
Different rules apply to state and federal prisoners seeking relief. “The
general rule is that a motion under 28 U.S.C. § 2255 is the exclusive
means by which a federal prisoner may test the legality of his detention,
and that restrictions on the availability of a § 2255 motion cannot be
avoided through a petition under 28 U.S.C. § 2241.” Stephens v. Herrera,
464 F.3d 895, 897 (9th Cir. 2006) (internal citation omitted). By its terms,
28 U.S.C. § 2255 applies only to prisoners “claiming the right to be
released” upon one of a few enumerated grounds. A federal prisoner may
file a § 2241 petition “if, and only if, the remedy under § 2255 is
inadequate or ineffective to test the legality of his detention” such as when
a prisoner “(1) makes a claim of actual innocence, and (2) has not had an
unobstructed procedural shot at presenting that claim.” Marrero v. Ives,
682 F.3d 1190, 1192 (9th Cir. 2012) (internal quotation marks omitted).
As a further distinction, § 1983 is generally unavailable to federal
prisoners challenging prison conditions, but such prisoners may have
recourse under Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971) and the Federal Tort Claims Act (FTCA).
18 NETTLES V. GROUNDS

adequate state remedies as a condition precedent to the
invocation of federal judicial relief under those laws” as a
way to further Congress’s policy goal of avoiding
“unnecessary friction between the federal and state court
systems.” 411 U.S. at 489–91. The Court held that it should
respect this congressional intent, id. at 492 n.10, and that “[i]t
would wholly frustrate explicit congressional intent to hold
that the respondents in the present case could evade this
requirement by the simple expedient of putting a different
label on their pleadings,” id. at 489–90.

Just as Congress’s amendments to the habeas statute
indicated an intent to make habeas the exclusive remedy for
claims at the core of habeas, see id., Congress’s enactment of
the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-
134, 110 Stat. 1321 (1996), indicated an intent to make
§ 1983 the exclusive remedy for “all inmate suits about prison
life,” Porter v. Nussle, 534 U.S. 516, 532 (2002). The PLRA
was intended “to promote administrative redress, filter out
groundless claims, and foster better prepared litigation of
claims aired in court.” Id. at 528. Before the PLRA,
plaintiffs pursuing actions under § 1983, including “[p]risoner
suits alleging constitutional deprivations while incarcerated”
did not have to “exhaust administrative remedies before filing
suit in court.” Id. at 523 (citing Wilwording v. Swenson,
404 U.S. 249, 251 (1971) (per curiam)). But Congress
“enacted § 1997e(a) to reduce the quantity and improve the
quality of prisoner suits” by requiring exhaustion of
prisoners’ § 1983 claims. Id. at 524.7 Congress intended this

7
42 U.S.C. § 1997e(a), provides: “No action shall be brought with
respect to prison conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are
 NETTLES V. GROUNDS 19

exhaustion requirement to have a broad scope: “[T]he
PLRA’s exhaustion requirement applies to all inmate suits
about prison life, whether they involve general circumstances
or particular episodes, and whether they allege excessive
force or some other wrong.” Id. at 532.

Congress’s intent that state prisoners satisfy PLRA
requirements for all § 1983 suits about prisoner life (other
than claims at the core of habeas) suggests that Congress
wanted § 1983 to be the exclusive vehicle for such claims.
As in Preiser, “[i]t would wholly frustrate explicit
congressional intent” to hold that prisoners could evade the
requirements of the PLRA “by the simple expedient of
putting a different label on their pleadings.” 411 U.S. at
489–90. Moreover, because Congress enacted the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub L. No. 104-132, 110 Stat. 1214, at the same
time as it enacted the PLRA, we infer that Congress did not
intend to make § 1983 and habeas regimes interchangeable or
overlapping. AEDPA added procedural requirements for
prisoners bringing habeas corpus petitions that are separate
and distinct from those imposed on § 1983 claims by the
PLRA, see Woodford v. Ngo, 548 U.S. 81, 97 (2006),
indicating an intent to make these regimes independent and
mutually exclusive.8

exhausted.”
8
The procedural requirements imposed by AEDPA and the PLRA are
distinct in substantial respects. The PLRA attempts to “filter out
nonmeritorious claims,” Jones v. Bock, 549 U.S. 199, 213 (2007), by
requiring judicial screening of prisoner litigation, 28 U.S.C. § 1915(e), and
depriving a prisoner of the right to file in forma pauperis if the prisoner
incurs three “strikes,” defined as dismissals “on the grounds that [the
claim] was frivolous, malicious, or fails to state a claim upon which relief
20 NETTLES V. GROUNDS

In effect, these Congressional enactments channel
prisoner litigation through the set of procedures that is best
suited to address the type of prisoner grievance at issue.
Many suits about prison conditions can be addressed
effectively and speedily by correction officials through
internal grievance procedures, which “might improve prison
administration and satisfy the inmate, thereby obviating the
need for litigation.” See, e.g., Porter, 534 U.S. at 525. And
if such claims are not resolved by corrective action at the
prison, “adjudication could be facilitated by an administrative
record that clarifies the contours of the controversy.” Id.
Thus, a § 1983 action subject to the PLRA exhaustion
requirements, which mandate that a prisoner first exhaust the
prison’s administrative processes to the extent they are
available, is the best means of addressing such claims. On
the other hand, habeas corpus is the exclusive remedy to
attack the legality of the conviction or sentence, and for these
sorts of claims the exhaustion requirement gives a state court
“an opportunity to correct its own constitutional errors”
before a federal court orders release, thus respecting

may be granted,” id. § 1915(g). AEDPA does not have any similar
requirements. AEDPA and the PLRA also impose different exhaustion
requirements. Under AEDPA, a state prisoner must pursue and exhaust
all remedies available in state court before a federal court may entertain
a petition, unless corrective process is unavailable in the state or is
ineffective in protecting the prisoner’s rights. Id. § 2254(b)(1). Under the
PLRA, by contrast, prisoners must exhaust state administrative remedies
by filing a grievance within the state prison system unless administrative
remedies are not “available,” but the plaintiff need not exhaust state
judicial remedies before filing in federal court. Id. § 1997e(a); Woodford,
548 U.S. at 85; McBride v. Lopez, 807 F.3d 982, 986 (9th Cir. 2015).
Furthermore, AEDPA bars second or successive petitions challenging the
same state court judgment, with some narrow exceptions for claims that
were not presented in the prior petition, see 28 U.S.C. § 2244(b), but the
PLRA contains no analogous limitation.
 NETTLES V. GROUNDS 21

traditional notions of federal-state comity. Preiser, 411 U.S.
at 484, 490–91. Our holding that a § 1983 action is the
exclusive vehicle for suits about prison life furthers
Congress’s efforts to direct prisoner litigation to the
appropriate procedural channel.

C

We are also persuaded to adopt the rule that habeas is
available only for actions in the “core of habeas” because it
has the benefits of clarity and administrability. Our pre-
Skinner opinions addressing this issue struggled to draw a
line between habeas and § 1983 actions, and we have not
provided clear direction to state prisoners bringing such
challenges or district courts addressing them. We have long
held that prisoners may not challenge mere conditions of
confinement in habeas corpus, see Crawford v. Bell, 599 F.2d
890, 891–92 (9th Cir. 1979),9 but we have reached
inconsistent results in our efforts to delineate more precisely
the claims which may not be brought in habeas. Thus, while
we stated in Ramirez v. Galaza that a prisoner could not bring
a habeas petition to seek expungement of a disciplinary
charge where “a successful challenge to a prison condition
will not necessarily shorten the prisoner’s sentence,”
334 F.3d 850, 859 (9th Cir. 2003) (emphasis added), we
subsequently stated, inconsistently, that prisoners could bring
claims in a habeas petition “challenging aspects of their

9
The Fifth, Sixth, Seventh, and Tenth Circuits have reached the same
conclusion. See Luedtke v. Berkebile, 704 F.3d 465, 465–66 (6th Cir.
2013); Glaus v. Anderson, 408 F.3d 382, 386 (7th Cir. 2005); Carson v.
Johnson, 112 F.3d 818, 820–21 (5th Cir. 1997); McIntosh v. U.S. Parole
Comm’n, 115 F.3d 809, 811–12 (10th Cir. 1997). But see Aamer v.
Obama, 742 F.3d 1023, 1031–32 (D.C. Cir. 2014).
22 NETTLES V. GROUNDS

parole review” so long as success on the claims “could
potentially affect the duration of their confinement,” Docken
v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004) (emphasis
added); see also Bostic v. Carlson, 884 F.2d 1267, 1269 (9th
Cir. 1989) (holding that a prisoner could bring a petition in
habeas to seek relief from various disciplinary decisions that
resulted in “forfeiture of statutory good time or segregation
from the general prison population,” where the relief was for
“expungement of the incident from his disciplinary record” so
long as such “expungement is likely to accelerate the
prisoner’s eligibility for parole.” (emphasis added)).

By contrast, Skinner’s core-of-habeas standard is a well-
tested one that does not require the sort of probabilistic
analysis found in some of our prior precedent, such as
whether success on a claim would be “likely” to lead to an
earlier release, Bostic, 884 F.2d at 1269, or “could potentially
affect the duration of their confinement,” Docken, 393 F.3d
at 1031 (emphasis added). The standard suggested in Skinner
does not require us to guess at the discretionary decisions of
state officials in order to determine whether an action sounds
in habeas or § 1983, and which prerequisites must be met.
And it follows Skinner’s suggestion “that habeas might not
even be available for ‘probabilistic’ claims.” Davis v. U.S.
Sentencing Comm’n, 716 F.3d 660, 665 (D.C. Cir. 2013).10
This rule will likewise give needed clarity to state prisoners.
If the prisoner’s claim challenges the fact or duration of the
conviction or sentence, compliance with AEDPA is

10
The dissent cites to Fifth, Sixth and D.C. Circuit cases holding that
“there is some degree of permissible overlap between § 1983 and habeas,”
Dissent at 43, but each was decided before Skinner suggested a different
standard. Davis is the only out-of-circuit case to date to consider
Skinner’s suggestion regarding the scope of habeas relief.
 NETTLES V. GROUNDS 23

mandated, while if the claim challenges any other aspect of
prison life, the prisoner must comply with the PLRA.11

Accordingly, we now resolve the inconsistency in our
case law and adopt the Supreme Court’s suggestion that if a
state prisoner’s claim does not lie at “the core of habeas
corpus,” Preiser, 411 U.S. at 487, it may not be brought in
habeas corpus but must be brought, “if at all,” under § 1983,
Skinner, 562 U.S. at 535 n.13. We therefore overrule Docken
v. Chase, 393 F.3d 1024, and Bostic v. Carlson, 884 F.2d
1267, to the extent they are inconsistent with this rule.

III

We now apply this standard to Nettles’s federal habeas
petition, which challenged the disciplinary proceedings held
in connection with the 2008 rules violation report. Nettles
argues that his claims affect the duration of his sentence
because if he succeeded in expunging his 2008 rules violation
report, the Board would more likely set his next parole
hearing at an earlier date, Cal. Penal Code § 3041.5(b)(4), and
would be more likely to give him a favorable parole ruling.12

11
The dissent suggests that this rule deprives petitioners of a remedy for
procedural violations. See Dissent at 33. To the contrary, our holding
channels prisoner claims through the appropriate procedures, rather than
foreclosing relief. Thus, if a state prisoner’s success in challenging a
procedural violation would necessarily result in immediate or speedier
release from custody, the prisoner’s claim would sound in habeas, while
a state prisoner could challenge other procedural violations by bringing an
action under § 1983.
12
Nettles also argued that once granted parole, the panel’s calculation
of the time he must serve before release will necessarily be affected by the
reinstated postconviction credits. But after January 1, 2016, the effective
date of the new law, the panel no longer calculates a release date, making
24 NETTLES V. GROUNDS

We disagree. Success on the merits of Nettles’s claim
would not necessarily lead to immediate or speedier release
because the expungement of the challenged disciplinary
violation would not necessarily lead to a grant of parole.
Under California law, the parole board must consider “[a]ll
relevant, reliable information” in determining suitability for
parole. Cal. Code Regs. tit. 15, § 2281(b). A rules violation
is merely one of the factors shedding light on whether a
prisoner “constitutes a current threat to public safety,” In re
Lawrence, 190 P.3d 535, 553 (Cal. 2008). Because the parole
board has the authority to deny parole “on the basis of any of
the grounds presently available to it,” Ramirez, 334 F.3d at
859, the presence of a disciplinary infraction does not
compel the denial of parole, nor does an absence of an
infraction compel the grant of parole.

Here, the panel of the Board of Parole Hearings
considered a range of relevant factors bearing on Nettles’s
future dangerousness, including his inability to learn from
prior imprisonments, his lack of insight and remorse
regarding his crimes, and his argumentative and stubborn
attitude. The presiding commissioner discussed at great
length the factors that led him to conclude that Nettles was
not suitable for parole, including the heinous nature of
Nettles’s crime of conviction, a psychological report on
Nettles, and Nettles’s attitude. While the presiding
commissioner did note the multiple rules violations reports
issued to Nettles, his remarks gave no indication that
Nettles’s 2008 violation report was an important, let alone
determinative, factor in his decision.

this argument no longer relevant. See Cal. Penal Code § 3041(a).
 NETTLES V. GROUNDS 25

Under California law and the circumstances of Nettles’s
case, the panel could deny parole to Nettles even if he
succeeded in expunging the 2008 rules violation report.
Furthermore, since the decision to grant an earlier release
date on the basis of new information is placed in the
discretion of the parole board, Cal. Penal Code
§ 3041.5(d)(1), success on Nettles’s claim would not even
necessarily lead to an earlier parole hearing.

Because success on Nettles’s claims would not
necessarily lead to his immediate or earlier release from
confinement, Nettles’s claim does not fall within “the core of
habeas corpus,” Skinner, 562 U.S. at 535 n.13, and he must
instead bring his claim under § 1983.

IV

Although Nettles’s claims are not cognizable in habeas,
we must still consider whether the district court may construe
Nettles’s habeas petition as pleading a cause of action under
§ 1983.

The Supreme Court has long held that habeas petitions
“may . . . be read to plead causes of action under [§ 1983]”
and that prisoners bringing the wrong action are “entitled to
have their actions treated as claims for relief under the Civil
Rights Acts.” Wilwording, 404 U.S. at 251. The Seventh and
Eighth Circuits have also concluded that under certain
circumstances, a court may convert a habeas petition into a
civil rights claim under § 1983 or Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). See Spencer v. Haynes, 774 F.3d 467, 471 (8th Cir.
2014) (stating that habeas petitions can be recharacterized as
§ 1983 or Bivens actions); Robinson v. Sherrod, 631 F.3d
26 NETTLES V. GROUNDS

839, 841 (7th Cir. 2011) (same); Glaus v. Anderson, 408 F.3d
382, 388 (7th Cir. 2005) (stating that such recharacterization
is not “utterly out of the question”).

The rule in Wilwording, however, was developed long
before the enactment of the PLRA, during a time when a
court could allow a pro se litigant to replead a habeas claim
as a § 1983 claim or merely ignore the error in pleading.
Glaus, 408 F.3d at 388. After the PLRA became effective, “a
habeas corpus action and a prisoner civil rights suit differ in
a variety of respects—such as the proper defendant, filing
fees, the means of collecting them, and restrictions on future
filings—that may make recharacterization impossible or, if
possible, disadvantageous to the prisoner compared to a
dismissal without prejudice of his petition for habeas corpus.”
Robinson, 631 F.3d at 841; see also Glaus, 408 F.3d at 388
(noting that recharacterizing a prisoner’s action as a civil
rights action may make it subject to the PLRA’s three-strikes
rule and different exhaustion requirements, as well as
requiring the complaint to name a different defendant, such
as the individual official responsible for the wrong rather than
the warden).

In the reverse situation, where a district court
recharacterized a pro se litigant’s civil rights claim as a
habeas petition, the Supreme Court warned courts to avoid a
recharacterization that disadvantaged a petitioner by, for
example, subjecting the petitioner to restrictions on second or
successive habeas petitions. Castro v. United States,
540 U.S. 375, 382–83 (2003). Accordingly, Castro held that
before recharacterizing a civil rights claim, a district court
must “notify the pro se litigant that it intends to
recharacterize the pleading, warn the litigant that this
recharacterization means that any subsequent § 2255 motion
 NETTLES V. GROUNDS 27

will be subject to the restrictions on ‘second or successive’
motions, and provide the litigant an opportunity to withdraw
the motion or to amend it so that it contains all the § 2255
claims he believes he has.” Id. at 383; see also United States
v. Seesing, 234 F.3d 456, 464 (9th Cir. 2000) (holding that a
court should not recharacterize a prisoner’s pro se filing as a
federal habeas petition when doing so would be to the
prisoner’s disadvantage).

We agree with the Seventh Circuit that “the same logic
should apply to the potential conversion of a habeas corpus
petition into a civil rights claim.” Glaus, 408 F.3d at 388. “If
the complaint is amenable to conversion on its face, meaning
that it names the correct defendants and seeks the correct
relief, the court may recharacterize the petition so long as it
warns the pro se litigant of the consequences of the
conversion and provides an opportunity for the litigant to
withdraw or amend his or her complaint.” Id.; see also
Robinson, 631 F.3d at 841 (warning district courts “not to
recharacterize a prisoner’s petition for habeas corpus as a
prisoner civil rights complaint without his informed
consent”); Spencer, 774 F.3d at 471 (“[T]he better practice
will be for district courts to first obtain the consent of the pro
se individual before converting their claims from a habeas
proceeding to a Bivens action.”).

Joining our sister circuits, we hold that a district court
may construe a petition for habeas corpus to plead a cause of
action under § 1983 after notifying and obtaining informed
consent from the prisoner. Accordingly, we vacate the
district court’s dismissal of this matter and remand it to the
district court for proceedings consistent with this opinion.

VACATED AND REMANDED.
28 NETTLES V. GROUNDS

HURWITZ, Circuit Judge, concurring in part:

Until 2011, the Supreme Court had not yet spoken clearly
on the issue reserved in Preiser v. Rodriguez: the availability
of habeas corpus relief “as an alternative remedy to a proper
action under § 1983.” 411 U.S. 475, 500 (1973). But, things
have changed.

In Wilkinson v. Dotson, the Court confirmed that a suit
under42U.S.C. § 1983 “will not lie when a stateprisoner
challenges the fact orduration of his confinement, and seeks
either immediate release from prison, or the shortening of his
term of confinement.” 544 U.S. 74, 79 (2005) (citations and
quotation marks omitted). As in Preiser, the Dotson majority
did not address whether 28 U.S.C. § 2254 habeas corpus
jurisdiction is confined to such challenges, contenting itself
to find that the respondents’ claims fell outside the “implicit
habeas exception” and were cognizable under § 1983. Id. at
82. But, Justice Scalia’s concurrence squarely addressed the
issue now before us. He contended that allowing suits like
the one before us today to proceed under § 2254 “would
require us to broaden the scope of habeas relief beyond
recognition.” Id. at 85 (Scalia, J., concurring). Justice Scalia
perceived a bright-line test for habeas jurisdiction:

It is one thing to say that permissible habeas
relief, as our cases interpret the statute,
includes ordering a quantum change in the
level of custody, such as release from
incarceration to parole. It is quite another to
say that the habeas statute authorizes federal
courts to order relief that neither terminates
custody, accelerates the future date of release
 NETTLES V. GROUNDS 29

from custody, nor reduces the level of
custody.

Id. at 86 (citation and quotation marks omitted). Expanding
habeas jurisdiction to cover such claims, Justice Scalia
warned, “would utterly sever the writ from its common-law
roots.” Id.

Until 2011, Justice Scalia’s concurrence (joined by Justice
Thomas) was simply the view of two Justices on an
undecided issue. But, then came Skinner v. Switzer, 562 U.S.
521 (2011). That case, likePreiser and Dotson,involved the
scope of § 1983 jurisdiction; the Court concluded that a
prisoner claiming a denial of due process because of the
state’s refusal to give him access to DNA samples could seek
relief under the civil rights statute. Id. at 534. But, in
explaining that decision, the six-Justice Skinner majority
expressly rejected the respondent District Attorney’s
argument (adopted by the three dissenters) that “Skinner’s
request for DNA testing must be pursued, if at all, in an
application for habeas corpus, not in a § 1983 action.” Id.
Most importantly for today’s purposes, the Court did so by
citing Justice Scalia’s Dotson concurrence with approval:

It suffices to point out that Switzer has found
no case, nor has the dissent, in which the
Court has recognized habeas as the sole
remedy, or even an available one, where the
relief sought would “neither terminat[e]
custody, accelerat[e] the future date of release
from custody, nor reduc[e] the level of
custody.” Dotson, 544 U.S., at 86, 125 S. Ct.
1242 (Scalia, J., concurring).
30 NETTLES V. GROUNDS

Id. (emphasis added) (brackets in original). The Court later
reinforced the point, again citing Justice Scalia’s concurrence
with approval:

Dotson declared, however, in no uncertain
terms, that when a prisoner’s claim would not
“necessarily spell speedier release,” that claim
does not lie at “the core of habeas corpus,”
and may be brought, if at all, under § 1983.
544 U.S., at 82, 125 S. Ct. 1242 (majority
opinion) (internal quotation marks omitted);
see id., at 85–86, 125 S. Ct. 1242 (Scalia, J.,
concurring).

Id. at 535 n.13.

I find Skinner an unambiguous indication of the Supreme
Court’s view on the issue before us. The statements quoted
above are, to be sure, technically dicta—the question before
the Court was whether Skinner could bring a § 1983 claim,
not a habeas petition. But, in rejecting the District Attorney’s
contention that Skinner had a potential remedy in habeas
alone, the Court expressly adopted the reasoning in Justice
Scalia’s Dotson concurrence that § 2254 relief is limited to
claims that would necessarily spell speedier release,
accelerate future release from custody, or reduce the level of
custody. Nettles does not pose such a claim.

Supreme Court dicta as carefully considered as that in
Skinner is special; it should be followed absent compelling
reasons to the contrary. This case presents none. Were we
engaged in an “Erie guess” today about how a state supreme
court might decide an issue, we would not pause a moment
in light of the kind of statements in Skinner. We should give
 NETTLES V. GROUNDS 31

the Supreme Court similar deference in these circumstances;
we best perform our duties as an Article III “inferior” court
by not treating the carefully considered Skinner statements,
consciously used to reject an argument that habeas was an
available remedy, as idle musings.

Were we approaching this matter on a clean slate,
traditional principles of statutory construction might lead me
to a different result. But we are not. Parsing the language or
history of § 2254 is unnecessary to determine where the
Supreme Court stands on the issue before us. I therefore join
Parts I, II(A), III, and IV of Judge Ikuta’s opinion.

BERZON, Circuit Judge, joined by THOMAS, Chief Judge,
and FLETCHER, MURGUIA, and NGUYEN, Circuit Judges,
dissenting:

Damous Nettles was denied parole. He argues the parole
board’s decision was based at least in part on a disciplinary
proceeding in which he was denied due process. Today’s
majority opinion responds that if Nettles were successful on
his claim, it “would not necessarily lead to his immediate or
earlier release from confinement,” because the parole board
could deny him parole even without considering the
disciplinary proceeding at issue. Pr. Op. at 25.1 The majority
therefore holds that Nettles cannot seek a writ of habeas
corpus. This response flouts our normal approach to alleged

1
Only some portions of Judge Ikuta’s opinion have the support of a
majority of the en banc court. So it is the majority opinion in some
respects and a plurality opinion in others. For clarity, I cite it in this
dissent as the “Principal Opinion” (“Pr. Op.”).
32 NETTLES V. GROUNDS

violations of procedural rights and is inconsistent with the
statutes and precedent governing petitions for habeas corpus.
I therefore respectfully dissent.

I

When the violation of a procedural right is alleged, the
constitutional claim cannot be dismissed just by noting that
the proceeding in question might have come out the same
way absent the alleged violation. “[T]he right to procedural
due process is ‘absolute’ in the sense that it does not depend
upon the merits of a claimant’s substantive assertions . . . .”
Carey v. Piphus, 435 U.S. 247, 266 (1978). In other words,
the rights Nettles has going into a hearing may be invoked
“whatever the ultimate outcome of [the] hearing” may be. Id.
(quoting Fuentes v. Shevin, 407 U.S. 67, 87 (1972)) (internal
quotation marks omitted).

This principle exists both to protect individual rights and
to maintain the public good stemming from the scrupulous
enforcement of impartial procedures. The individual right to
a public trial, for instance, has long been “recognized as a
safeguard against any attempt to employ our courts as
instruments of persecution.” In re Oliver, 333 U.S. 257, 270
(1948). The right to an opportunity to be heard in
administrative hearings helps hold government officials
accountable for their assertions. See Joint Anti-Fascist
Refugee Comm. v. McGrath, 341 U.S. 123, 170–71 (1951).
These systemic benefits would not accrue if the
Constitution’s procedural safeguards were allowed to lapse
where we thought it likely they would not affect the outcome
of a hearing or trial. See Carey, 435 U.S. at 266.
 NETTLES V. GROUNDS 33

The standard announced by today’s majority circumvents
this basic facet of procedural justice. The majority opinion
holds that habeas petitions are not available unless a
claimant’s success “would necessarily demonstrate the
invalidity of confinement or its duration.” Pr. Op. at 9–10
(emphasis added) (internal quotations omitted). Where a
claimant alleges a procedural violation, as Nettles does here,
the majority uses the fact that the proceeding might have
resulted in the same outcome anyway to close the door to
habeas relief entirely.

This approach, if taken seriously, will foreclose habeas
relief on many procedural claims. Petitions for a writ of
habeas corpus may be brought by those alleging they are “in
custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2241(c)(3); see also
28 U.S.C. § 2254(a). We regularly interpret this language to
include prisoners who assert their confinement to be
predicated on the violation of a procedural right, even if the
proceeding in question might have come out the same way
had constitutionally proper procedures been followed. See,
e.g., Dixon v. Williams, 750 F.3d 1027, 1032 (9th Cir. 2014)
(right to due process); United States v. Withers, 638 F.3d
1055, 1063 (9th Cir. 2011) (right to a public trial); Holley v.
Yarborough, 568 F.3d 1091, 1098 (9th Cir. 2009) (right to
confront witnesses); Bonin v. Calderon, 59 F.3d 815, 824 (9th
Cir. 1995) (right to assistance of counsel); Campbell v.
Blodgett, 978 F.2d 1502, 1508 (9th Cir. 1992) (right to be
present during voir dire). The successful invocation of some
procedural rights, like the right to effective assistance of
counsel, may depend on an affirmative showing that the
outcome of the proceeding in question was prejudiced in
some way. See, e.g., Strickland v. Washington, 466 U.S. 668,
693 (1984). But it will almost always be the case that the
34 NETTLES V. GROUNDS

proceeding could have resulted in the same outcome even
absent the alleged defect.

Just as the prisoners in the cited cases argued that they
were in custody in violation of the law due to a trial
prejudiced by procedural violations, Nettles argues he is in
custody in violation of the law due to a parole hearing
prejudiced by procedural violations. We have regularly heard
post-conviction claims brought in habeas by prisoners even
when the relief sought would not necessarily result in a
speedier release.

Earlier this year, for instance, in Rodriguez v.
Copenhaver, we granted relief to a federal prisoner under
§ 2241 even though such relief “would not necessarily lead to
his immediate or earlier release from confinement.” Pr. Op.
at 25; see Rodriguez v. Copenhaver, __ F.3d __ , No. 14-
16399, 2016 WL 3003423 (9th Cir. May 25, 2016). In that
case, Rodriguez contested the BOP’s rejection of his request
to get credit applied to his sentence for time served in state
custody. Id. at *3. In evaluating Rodriguez’s request, the
BOP considered a letter from a judge who had been recused
from Rodriguez’s case. Id. at *3–4. We held that by
incorporating the letter into its decision, the BOP violated
both due process and a federal statute. Id. at *4.

Importantly, Rodriguez did not indicate that Rodriguez
was entitled to have credit applied to his sentence. To the
contrary, we noted that the BOP’s decision was an exercise of
discretion. Id. at *3; see also 18 U.S.C. § 3621(b). As a
result, we simply remanded with directions for the Bureau of
Prisons (BOP) to reconsider Rodriguez’s request anew,
without regard to the judge’s letter. Rodriguez, 2016 WL
3003423, at *4.
 NETTLES V. GROUNDS 35

Rodriguez is not the only habeas petition we have
entertained relating to early release where the petitioner’s
success “would not necessarily spell immediate or speedier
release.” Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005);
see, e.g., Close v. Thomas, 653 F.3d 970 (9th Cir. 2011);
Crickon v. Thomas, 579 F.3d 978 (9th Cir. 2009).

The Supreme Court has also heard at least two such cases,
California Department of Corrections v. Morales, 514 U.S.
499, 504 (1995), and Edwards v. Balisok, 520 U.S. 641
(1997). In Morales, the petitioner, Morales, brought a habeas
action via 28 U.S.C. § 2254 arguing that a statute violated the
Constitution’s prohibition on ex post facto laws. 514 U.S. at
504. The statute in question meant that Morales was eligible
for parole suitability hearings every three years rather than
each year. Id. at 503.

Edwards v. Balisok, a case the majority discusses, is
another relevant example and hints at the implications of the
majority’s standard. Pr. Op. at 12. In Balisok, the Supreme
Court required the respondent, Balisok, to bring his due
process challenge to the prison’s disciplinary procedures
under the habeas statute, rather than § 1983. 520 U.S. at 648.
Balisok did not dispute the result of his disciplinary hearing,
admitting that the prison likely could revoke his good-time
credit in a procedurally proper hearing. Id. at 644–45,
647–48. However, because Balisok’s procedural challenges
“impl[ied] the invalidity of the punishment imposed,” he was
required to proceed in habeas, even though the validity of his
underlying judgment of conviction was not at stake, and even
though success on his claim would not necessarily have
resulted in speedier release. Id. at 648. The majority’s
standard apparently would leave similarly situated plaintiffs
36 NETTLES V. GROUNDS

without a remedy, barring them from seeking relief using the
only route the Supreme Court left open.2

For Morales, Rodriguez, and Balisok, as well as for many
who challenge the adequacy of procedures used at the trial
resulting in their conviction, the procedural violation may not
have been the cause of their confinement. They might well
have been confined absent the violation. But the Supreme
Court has never held — or even suggested — that petitioners
such as these have not successfully alleged they are “in
custody in violation of the Constitution or laws or treaties of
the United States,” 28 U.S.C. §§ 2241(c)(3), 2254(a). To the
contrary, the cases just discussed suggest that a petitioner
meets this statutory language and may seek a writ of habeas
corpus if they are (1) in custody, and (2) their custody “could
potentially” end or be shortened if an unconstitutional
procedure were voided and a new proceeding ordered. See
Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004)
(emphasis omitted).3

2
Each of these examples counters the suggestion by both the majority
and Judge Hurwitz’s concurrence that there exists “no case . . . in which
the Court has recognized habeas as the sole remedy, or even an available
one, where the relief sought would neither terminat[e] custody,
accelerat[e] the future date of release from custody, nor reduc[e] the level
of custody.” Pr. Op. at 15 (quoting Skinner v. Switzer, 562 U.S. 521, 534
(2011)) (internal quotation marks and citation omitted); Concurring Op.
at 29–30 (same).
3
Again, it is possible that habeas relief could be denied in a case such
as this one on lack of prejudice grounds, if the prejudice standard
appropriate to the circumstances were not met. The present issue,
however, is whether the petitioner was entitled to bring a habeas petition
at all.
 NETTLES V. GROUNDS 37

This understanding of the habeas statutes is also more
consonant with the relief that courts typically grant a habeas
petitioner. A petitioner’s success on their habeas claim often
does not meet the majority’s standard of “immediate or
speedier release.” Pr. Op. at 24. Frequently, federal courts
allow the prisoner to remain confined while the relevant
proceeding is redone. See, e.g., Rodriguez, 2016 WL
3003423, at *4. These remedies are consistent with
Congress’s directive that courts sitting in habeas “shall . . .
dispose of the matter as law and justice require.” 28 U.S.C.
§ 2243. Consonant with this language, the Supreme Court
has rejected “the notion that immediate physical release [is]
the only remedy under the federal writ of habeas corpus.”
Peyton v. Rowe, 391 U.S. 54, 67 (1968). Federal courts have
“broad discretion in conditioning a judgment granting habeas
relief,” Hilton v. Braunskill, 481 U.S. 770, 775 (1987), and,
as a practical matter, the granting of a writ often does not
result in either “immediate” or “speedier” release. Pr. Op. at
24. The majority opinion thus declares a standard that is
inconsistent with both the language of §§ 2241 and 2254 and
our historical treatment of petitions for habeas corpus.

II

The majority attempts to justify its departure from statute
and precedent by asserting that its holding is consistent with
congressional intent and the Supreme Court’s “strong
suggestion” that habeas relief and relief under § 1983 are
mutually exclusive. Pr. Op. at 17. But today’s opinion
misreads the pertinent cases and the Supreme Court’s
jurisprudence, and it contorts the relationship between habeas
and § 1983 that the Supreme Court explicated in Preiser v.
Rodriguez, 411 U.S. 475 (1973), and its progeny.
38 NETTLES V. GROUNDS

A. The proper relationship between habeas and § 1983 is
based on the familiar principle of statutory interpretation that
“the specific governs the general.” See, e.g., Long Island
Care at Home, Ltd. v. Coke, 551 U.S. 158, 170 (2007).
Section 1983 provides a broad vehicle for relief from illegal
state action in general, while the writ of habeas corpus is a
remedy for relief from illegal confinement in particular.
Preiser, 411 U.S. at 490. Preiser held that the specific
remedy provided by the habeas statute “must override the
general terms of § 1983.” Id. In other words, when prisoners
directly challenge the fact or duration of their confinement,
that challenge must be brought under habeas.

The justification for so limiting § 1983 actions is that the
habeas remedy is “sufficiently comprehensive” to
“demonstrate congressional intent to preclude the remedy of
suits under § 1983” for certain claims by prisoners.
Middlesex Cty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n,
453 U.S. 1, 20 (1981); Docken, 393 F.3d at 1026 n.2. Those
claims, held Preiser, are those that are “within the core of
habeas corpus.” 411 U.S. at 487 (emphasis added). Preiser
defined that core to contain claims where “a state prisoner is
challenging the very fact or duration of his physical
imprisonment.” Id. at 500. Preiser did not hold that habeas
jurisdiction is confined to what it described as the “core” of
habeas; had it meant to do so, its references to the “core” of
habeas corpus, as distinct from the overall reach of the writ,
would have been pointless. Preiser reinforced the limited
nature of its holding by cautioning that the exact scope of the
overlap between § 1983 and habeas was “not before us,” id.;
had Preiser meant the “core of habeas corpus” to equate with
the entire breadth of the writ, that caution would have been
unnecessary. And as Justice Thomas noted in his dissent in
Skinner v. Switzer, 562 U.S. 521, 538 (2011), the Court “has
 NETTLES V. GROUNDS 39

never purported to fully circumscribe the boundaries of
§ 1983,” as distinct from habeas corpus.

The justification for limiting § 1983 out of consideration
for habeas does not work in reverse. The existence of a broad
statute does not imply a congressional desire to limit a more
specific one, especially one largely enacted later.4 “[T]he
specific governs the general,” Long Island Care, 551 U.S. at
170, not vice versa. Consistent with that precept, the
Supreme Court’s cases since Preiser have focused on whether
and to what extent § 1983 should be limited by habeas, not
the other way around. See, e.g., Dotson, 544 U.S. 74, 81
(2005); Skinner, 562 U.S. at 534.

The majority opinion maintains these cases should be
seen as “strongly suggesting” that habeas and § 1983 do not
overlap at all, even as to asserted violations of
constitutionally required procedures that, if corrected, could
— but will not necessarily — result in earlier release. Pr. Op.
at 16. This reading of the precedents relies primarily on three
Supreme Court cases: Muhammad v. Close, 540 U.S. 749

4
Section 1983 was enacted in the Civil Rights Act of 1871 and has
existed in largely the same form to this day. See Preiser, 411 U.S. at 476;
Civil Rights Act of 1871, ch. 22, 17 Stat. 13 (1871). Although there was
a federal habeas statute before 1871, it was initially much more limited
than the modern statute and has been amended many times since. See
generally Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1042–93
(1970) (providing an overview of the history of federal habeas corpus).
These amendments include legislation in 1966 inserting language that the
Supreme Court noted “seem[ed] specifically to contemplate the possibility
of relief other than immediate release from physical custody.” Carafas v.
LaVallee, 391 U.S. 234, 239 (1968) (discussing the 1966 amendment
providing for “release from custody or other remedy”); see also 28 U.S.C.
§ 2243 (providing for disposition of habeas cases “as law and justice
require”).
40 NETTLES V. GROUNDS

(2004), Dotson, 544 U.S. at 74, and Skinner, 562 U.S. at 521.
None of these cases focuses on limitations on habeas claims.
Instead, each of these cases deals with limitations on actions
brought under § 1983. See Skinner, 562 U.S. at 534; Dotson,
544 U.S. at 81; Muhammad, 540 U.S. at 754–55.

Nor does the dicta in the three opinions regarding habeas
cases, read in context, support the majority’s reading of the
cases. For instance, the majority cites Muhammad’s
statement that the claimant “raised no claim on which habeas
relief could have been granted on any recognized theory,” and
that the relief he sought would “not necessarily” have
affected the duration of his confinement, to argue that habeas
is not available for claims unless they necessarily challenge
the duration of confinement. Pr. Op. at 13; Muhammad,
540 U.S. at 754–55. But in Muhammad, the lower court had
“expressly found or assumed that no good-time credits were
eliminated by the prehearing action Muhammad called in
question.” 540 U.S. at 754. In other words, there was not
even the possibility of speedier release if Muhammad
prevailed. Muhammad sought only compensatory and
punitive damages for an alleged wrongful disciplinary action.
Id. at 753. Muhammad thus does not suggest anything at all
about a case in which the duration of a prisoner’s
confinement might be affected by a prisoner’s claim.

Skinner and Dotson are similarly indeterminate, at best,
as to potential limitations on habeas jurisdiction. Both cases
concern whether a claim “may” be brought via § 1983, not
whether it “must” be so brought because habeas is
unavailable. Skinner, 562 U.S. at 524; Dotson, 544 U.S. at
82. Notably, Dotson, in explaining why the § 1983 claims
there at issue could go forward, reprised the Preiser standard:
“Because neither prisoner’s claim would necessarily spell
 NETTLES V. GROUNDS 41

speedier release, neither lies at ‘the core of habeas corpus.’”
Dotson, 544 U.S. at 82 (quoting Preiser, 411 U.S. at 489).
Dotson did not say, any more than did Preiser, that because
of the character of the prisoner’s claim, they were outside the
scope of habeas corpus altogether.

Skinner confirmed that limitation on the observation in
Dotson regarding habeas, stating that “[w]here the prisoner’s
claim would not ‘necessarily spell speedier release,’ . . . suit
may be brought under § 1983.” 562 U.S. at 525 (emphasis
added). Like the language quoted above in Muhammad, the
statement that such claims may be brought via § 1983 does
not suggest that they may not be also brought in habeas.

Further, Boumediene v. Bush, 553 U.S. 723 (2008), a case
the majority does not mention, affirmatively indicated that
habeas petitions may be brought for relief other than speedier
release from confinement. Boumediene considered the core
capacities that a tribunal must retain to maintain an adequate
substitute for a writ of habeas corpus. Boumediene noted that
while a court “must have the power to order the conditional
release of an individual unlawfully detained[,] . . . release
need not be the exclusive remedy and is not the appropriate
one in every case in which the writ is granted.” Id. at 779.

The year after Boumediene, and just two years before
Skinner, the Supreme Court characterized Dotson as holding
that “prisoners who sought new hearings for parole eligibility
and suitability need not proceed in habeas” — which would
be very odd phrasing if Dotson’s import was that prisoners
with such claims cannot proceed in habeas. Dist. Attorney’s
Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 66
(2009) (emphasis added). And throughout these cases, the
Court has asked consistently whether a claim “lies at the core
42 NETTLES V. GROUNDS

of habeas corpus,” (emphasis added) phrasing that, as I
observed earlier, necessarily indicates there is some area
beyond this “core” in which a habeas claim may also lie. See,
e.g., Dotson, 544 U.S. at 79 (quoting Preiser, 411 U.S. at
487) (internal quotation marks omitted).

To counter all of this precedent, the majority opinion
(and, in part, Judge Hurwitz’s concurrence) rely on three
words in a Skinner footnote that could, out of context, suggest
that habeas is limited to its “core.” Quoting the same Dotson
passage discussed above, Skinner states that “when a
prisoner’s claim would not ‘necessarily spell speedier
release,’ that claim does not lie at ‘the core of habeas corpus,’
and may be brought, if at all, under § 1983.” 562 U.S. at 535
n.13 (quoting Dotson, 544 U.S. at 82).

Perhaps the phrase “if at all” could be read to suggest that
such claims may only be brought under § 1983, and therefore
may not be brought under habeas. But this language could
also be read to refer simply to whether the claim may be
brought at all — i.e., whether the claim is otherwise viable.
So, for example, a claim cannot be brought “at all” under
§ 1983 if the statute of limitations has run, or if the
procedural requirements of the PLRA have not been complied
with. Cf. Dotson, 544 U.S. at 87–88 (Scalia, J., concurring)
(enunciating a similar caveat). On that understanding, the
Skinner sentence means that otherwise viable claims not at
“the core of habeas corpus” may be brought under § 1983 —
not that they must be.

Ambiguous dicta in a footnote is not enough to resolve
the precise boundaries of habeas corpus and § 1983 — an
issue the Supreme Court has explicitly noted and left
unresolved for more than four decades, and that the Court
 NETTLES V. GROUNDS 43

several times has indicated does not lie at the boundary
between claims that could result in earlier release and those
that will. See Preiser, 411 U.S. at 500. That same footnote,
as well as Dotson itself, asserts that the Court has not
“mov[ed] the line our cases draw,” confirming that neither
Dotson or Skinner reached any new conclusions as to that
line. 562 U.S. at 535 n.13 (quoting Dotson, 544 U.S. at 84).

Skinner, Dotson, and the other relevant Supreme Court
cases are thus entirely consistent with the notion that § 1983
actions should be limited out of a concern for encroaching on
habeas jurisdiction, but that it is permissible for habeas
actions to overlap somewhat with claims properly brought
under § 1983. The Fifth, Sixth, and D.C. Circuits have held
that there is some degree of permissible overlap between
§ 1983 and habeas. See, e.g., Aamer v. Obama, 742 F.3d
1023, 1033 (D.C. Cir. 2014); Adams v. Bradshaw, 644 F.3d
481, 482–83 (6th Cir. 2011) (per curiam); Coleman v. Dretke,
409 F.3d 665, 669–70 (5th Cir. 2005) (en banc) (per curiam).
But see Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir.
2006); Richmond v. Scibana, 387 F.3d 602, 605 (7th Cir.
2004).

B. In addition to its reading of Supreme Court precedent,
Judge Ikuta’s opinion, in a discussion joined by only a
plurality of the court, asserts that its position is consistent
with congressional intent. Pr. Op. at 17–18. But that
discussion points to no language in the habeas statute
supporting the standard it announces today. Instead, it
suggests that by requiring one set of procedures for § 1983
claims under the Prison Litigation Reform Act of 1995
(PLRA), 42 U.S.C. § 1997e et seq., and another set for habeas
petitions brought pursuant to the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214,
44 NETTLES V. GROUNDS

Congress indicated its intent to have the two statutes govern
entirely separate regimes. Pr. Op. at 18–19.

The existence of distinct sets of procedures does not tell
us that Congress intended to limit either procedure’s
substantive scope. Rather, the evident intent was simply that
to use either statute, a litigant must meet its procedural
requirements.

Even if more could be made of the procedural
dissimilarities between § 1983 and federal habeas corpus —
which I do not think it can — the plurality gives no reason to
think that it is habeas that should be limited, rather than
§ 1983. As I have noted, § 1983 has been the focus of all
prior cases addressing the overlap between the two.

The plurality’s reliance on the PLRA and AEDPA is also
ahistorical. Preiser’s discussion of habeas and § 1983 was
written in 1973, well before either the PLRA or AEDPA were
enacted in the mid-1990s. Congress is generally assumed to
be “thoroughly familiar with” Supreme Court precedents
when it legislates. Edelman v. Lynchburg Coll., 535 U.S.
106, 117 n.13 (2002) (quoting N. Star Steel Co. v. Thomas,
515 U.S. 29, 34 (1995)). If Congress had intended to weigh
in on the longstanding discussion concerning the relationship
between habeas and § 1983 via the PLRA, AEDPA, or both,
it would surely have done so explicitly, rather than relying on
judges’ ability to read tea leaves. Absent any provision in
either statute addressing the question, the creation of different
procedural requirements for the two different claims cannot
be read to limit the substance of the habeas remedy.

More broadly, the PLRA’s restrictions on prisoner suits
demonstrate the hazards of limiting habeas corpus due to
 NETTLES V. GROUNDS 45

potential overlap with other remedies. The writ of habeas
corpus is protected by the Constitution. See U.S. Const. art.
I, § 9, cl. 2. There is no such explicit protection for the
remedy afforded by § 1983 (which, indeed, did not even exist
until after the Civil War). As the PLRA shows, Congress can
alter § 1983 at will, to make it more or less available to
particular groups like prisoners. Relying on the existence of
alternative statutory remedies to justify narrowing the breadth
of habeas thus may create gaps that widen over time as
Congress alters those remedies. This potential problem is
made more likely if we read the existence vel non of other
statutory schemes to indicate Congress’s implicit intent to
limit habeas’s scope. Such an arrangement risks encroaching
on the “grand purpose” of one of the most important remedies
of our legal order. Boumediene, 553 U.S. at 780 (quoting
Jones v. Cunningham, 371 U.S. 236, 243 (1963)).

III

The majority’s opinion also threatens the scope of habeas
for federal prisoners. Such prisoners do not have recourse
under § 1983. That statute applies only to violations
undertaken “under color of” state law. 42 U.S.C. § 1983; see,
e.g., Ibrahim v. Dep’t of Homeland Sec., 538 F.3d 1250, 1257
(9th Cir. 2008).

The federal habeas statute, 28 U.S.C. § 2241 et seq., is the
basic statute empowering courts to hear petitions by both
federal and state prisoners.5 Notably, we have heard many

5
Section 2241(a) provides that “[w]rits of habeas corpus may be granted
by the Supreme Court, any justice thereof, the district courts and any
circuit judge within their respective jurisdictions.” Section 2241(c)
specifies five categories of prisoners eligible for federal habeas. See
46 NETTLES V. GROUNDS

claims by federal prisoners petitioning under § 2241 where
success “would not necessarily lead to [their] immediate or
earlier release from confinement.” Pr. Op. at 25. In Crickon
v. Thomas, 579 F.3d 978, 982 (9th Cir. 2009), for instance,
Jerry Crickon, a federal prisoner, brought a habeas petition
challenging the BOP’s determination that he was
categorically ineligible for an early release incentive program
due to his prior conviction. We held the BOP’s failure to
articulate its reasoning was a violation of the Administrative
Procedure Act, and remanded for the BOP to reconsider
Crickon’s eligibility. Id. at 988–89. Just as in Dotson,
“[s]uccess for [Crickon] . . . mean[t] at most new eligibility
review.” 544 U.S. at 82. But that was no obstacle to
Crickon’s habeas petition.

In Close v. Thomas, 653 F.3d 970 (9th Cir. 2011), we
heard a similar challenge brought by a federal prisoner under
§ 2241. Christopher Close, the petitioner, challenged the
criteria used to rank prisoners on a waitlist for a drug
treatment program, because admission to the program could
speed his eligibility for early release. Id. at 972–73. As the
opinion noted, id. at 975, the potential acceleration of
participants’ release was discretionary — in other words,
admission to the program “would not necessarily spell
immediate or speedier release.” Dotson, 544 U.S. at 81. But

28 U.S.C. § 2241(c)(1)–(5). The important section for present purposes
is 2241(c)(3), which makes available writs of habeas corpus to both
federal and state prisoners “in custody in violation of the Constitution or
laws or treaties of the United States.” Sections 2244, 2254, and 2255 spell
out some substantive differences in the writ’s scope for state and federal
prisoners, as well as differences in the procedures required for state and
federal prisoners to obtain the writ. Those differences are not relevant to
the case at hand.
 NETTLES V. GROUNDS 47

Close’s claim was allowed to proceed via habeas petition
nonetheless. See also Rodriguez, 2016 WL 3003423, at 4.

As Crickon, Close, and Rodriguez indicate, federal
prisoners have been able to bring habeas claims alleging
procedural defects to the parole process whose resolution
would not necessarily result in a speedier release. This
practice is longstanding. See, e.g., John v. U.S. Parole
Comm’n, 122 F.3d 1278, 1285 (9th Cir. 1997); Benites v. U.S.
Parole Comm’n, 595 F.2d 519, 520 & n.1 (9th Cir. 1979); see
also Elliott v. United States, 572 F.2d 238, 239 (9th Cir.
1978) (per curiam) (holding that a federal prisoner’s
challenge to a parole board’s failure to give “serious
consideration” to an application for parole is properly brought
via habeas corpus).

Such cases will, presumably, continue to be allowed, as
there is no alternative statutory remedy for federal prisoners,
and so no possibility of statutory overlap. But the majority
opinion points to no statutory language or precedent that
suggests any difference in the substantive scope of habeas
between federal and state prisoners for alleged constitutional
violations. Nor does that opinion otherwise explain why the
reach of § 2241(c) for federal prisoners should differ from the
reach of the same statute for state prisoners.

***

For all the reasons discussed, I would hold that habeas
corpus relief is available to any claimant whose success
“could potentially affect the duration of their confinement.”
Docken, 393 F.3d at 1031 (emphasis omitted). Such an
approach is just as practically feasible as the standard in the
48 NETTLES V. GROUNDS

majority opinion. In particular, it does not rely on the
“probabilistic analysis” that opinion rejects. Pr. Op. at 22.

My approach would, to be sure, permit some overlap
between habeas and § 1983, although this case does not
require us to decide the exact extent of that overlap. But such
overlap is not cause for concern. To succeed under either
statute, prisoners will have to conform with the requisite
procedures. The state has given us no reason that it would be
better off in general if cases like this one were brought under
§ 1983. If anything, state governments usually argue for
more cases to be brought in habeas rather than under § 1983,
as federal habeas petitioners, unlike plaintiffs under § 1983,
are usually required to exhaust state judicial remedies, see
Osborne, 423 F.3d at 1053, and federal habeas courts are
often required to defer to the results of these state
proceedings. See 28 U.S.C. § 2254(d).

Notably, the rule adopted by the majority will not “give
needed clarity to state prisoners.” Pr. Op. at 22. That rule
departs from precedent and statute, and will generate
confusion and delay among those seeking adjudication of
their claims who mistakenly choose the wrong vehicle. When
it comes to alleged procedural violations in particular, the
majority’s announced rule would seem to sweep up a
significant number of claims within its reach, creating a trap
for unwary prisoners who have not satisfied the PLRA’s
distinct requirements. See 42 U.S.C. § 1997e.

In short, the majority’s standard, inconsistent with statute
and precedent, will unnecessarily create problems for years
to come. I therefore dissent.