393 F.3d 1024 (9th Cir. 2004), 03-35187, Docken v. Chase

Docket Nº:03-35187.
Citation:393 F.3d 1024
Party Name:Leland F. DOCKEN, Petitioner-Appellant, v. Doug CHASE, Respondent-Appellee.
Case Date:December 29, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1024

393 F.3d 1024 (9th Cir. 2004)

Leland F. DOCKEN, Petitioner-Appellant,


Doug CHASE, Respondent-Appellee.

No. 03-35187.

United States Court of Appeals, Ninth Circuit

December 29, 2004

Argued and Submitted July 14, 2004

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Wendy Holton, Helena, MT, for the petitioner-appellant.

No appearance was made by the respondent-appellee.

Appeal from the United States District Court for the District of Montana; Leif B. Erickson, Magistrate, Presiding. D.C. No. CV-02-00018-LBE.

Before: B. FLETCHER, HAMILTON,[*] and BERZON, Circuit Judges.

BERZON, Circuit Judge:

Montana state prisoner Leland F. Docken brings this federal habeas petition challenging, as here pertinent, the Montana parole board's refusal to provide him with annual review of his suitability for parole. The district court dismissed this claim as not properly cognizable under the federal habeas statute, 28 U.S.C. § 2254. Because such parole-based claims--which may, but will not necessarily, affect the duration of a prisoner's confinement if meritorious--are cognizable via habeas, we reverse the district court's dismissal of Docken's petition and remand for further proceedings not inconsistent with this opinion.

I. Background

In September 1984, Docken pleaded guilty in a Jefferson County, Montana, court to committing "deliberate homicide" by murdering his father-in-law. See MONT. CODE ANN. § 45-5-102. Docken was sentenced to 100 years in prison and designated, for purposes of parole eligibility, a "dangerous offender." See id. § 46-18-404 (repealed 1995). Docken's plea and sentence were affirmed by the Montana Supreme Court. See State v. Docken, 222 Mont. 58, 720 P.2d 679 (1986).

In late 2001, the Montana Board of Pardons and Parole ("Board") denied parole in Docken's first post-conviction hearing. The Board set the date for his next hearing for September 2006. Soon thereafter, Docken filed a state habeas petition in the Montana Supreme Court, naming Doug Chase, Sheriff of the Missoula County Detention Center, as Respondent.1 Docken's

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petition argued, among other claims, that the Board violated his constitutional rights under the Ex Post Facto Clause when it changed the period between his reviews for parole from one year to five. The Montana Supreme Court denied Docken's petition in a written order, finding none of his state or federal claims persuasive. See Docken v. Chase, 309 Mont. 531, 43 P.3d 984 (2002) (unpublished table decision).

Docken then filed this habeas petition in the Montana federal district court, raising four principal contentions. The magistrate judge recommended dismissing the first three claims with prejudice, and the fourth, the only claim before us, without prejudice, on the ground that it is not cognizable via habeas but must rather be brought as a civil rights action under 42 U.S.C. § 1983. Citing the Ninth Circuit's decision in Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997), the magistrate judge concluded that "claims involving parole eligibility, as compared to parole decisions," may only be brought under § 1983, for, "[i]f Docken's claim succeeded, he would not be entitled to release." The district court adopted the magistrate judge's findings. We granted a Certificate of Appealability limited to the question of "whether ... appellant's claim of a right to annual review of his suitability for parole is not cognizable under 28 U.S.C. § 2254 and must rather be brought under 42 U.S.C. § 1983."

II. Discussion

We review de novo the district court's dismissal of a habeas petition under 28 U.S.C. § 2254. See Hunt v. Pliler, 384 F.3d 1118, 1123 (9th Cir. 2004).

Traditionally, challenges to prison conditions have been cognizable only via § 1983, while challenges implicating the fact or duration of confinement must be brought through a habeas petition. Looked at in hindsight, the characterization of the problem of parole review frequency is not difficult: For an inmate who will ultimately be paroled at his second parole hearing, whether that hearing is in one year or five indisputably implicates the duration of his confinement. But where the claim is, as here, purely prospective, hindsight is of little use. We cannot know in advance how the parole hearing will turn out. Also, substantively, a timing-of-parole-hearing claim necessarily turns not on the outcome of any hearing but on the asserted legal right to an opportunity to be heard and to have the chance of a shorter confinement. The question this case raises is whether such a prospective challenge is cognizable under § 2254 or § 1983--or both.

A. Preiser and its Progeny

The landmark precedent for determining whether inmate suits challenging particular aspects of prison conditions may be brought under the federal habeas statute is Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Preiser held that inmates challenging the deprivation of good-conduct time credits must sue under the federal habeas statute, 28 U.S.C. § 2254, and not under 42 U.S.C. § 1983, because such a suit necessarily challenges the duration of the inmates' confinement. See id. at 487-88, 93 S.Ct. 1827; see also id. at 490, 93 S.Ct. 1827 ("Congress has determined that habeas corpus is the appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement, and that specific determination must override the general terms of § 1983.").2 Even when prisoners only

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sought to shorten their sentences, the Preiser Court held, such a challenge falls within the "core" of habeas corpus by "attacking the very duration of their physical confinement itself." Id. at 487-88, 93 S.Ct. 1827; see also id. at 498, 93 S.Ct. 1827 (defining suits "challenging the fact or duration of ... physical confinement" and seeking "immediate release or a speedier release from that confinement" as the "heart of habeas corpus").

Preiser did not stop there. In response to the prisoners' argument that numerous challenges to prison conditions had been sustained under § 1983, the Court concluded that "a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody." Id. at 499, 93 S.Ct. 1827. The Court went on to issue a significant caution about the reach of its ruling: "This is not to say that habeas corpus may not also be available to challenge such prison conditions." Id. (emphasis added). Instead, the Court reiterated that its holding spoke only to the limits of § 1983 as a remedy: "[W]e need not in this case explore the appropriate limits of habeas corpus as an alternative remedy to a proper action under § 1983. That question is not before us. What is involved here is the extent to which § 1983 is a permissible alternative to the traditional remedy of habeas corpus." Id. at 500, 93 S.Ct. 1827.

Dissenting, Justice Brennan expanded on the reserved question: "[E]ven under the [Preiser majority's] approach, there are undoubtedly some instances where a prisoner has the option of proceeding either by petition for habeas corpus or by suit under § 1983." Id. at 504, 93 S.Ct. 1827 (Brennan, J., dissenting); see also id. at 506, 93 S.Ct. 1827 ("[S]ome instances remain ... where an action may properly be brought in habeas corpus, even though it is...

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