NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 3 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
LANCE ELLIOT WILLIAMS, No. 21-56234
Petitioner-Appellant, D.C. No. 2:20-cv-10304-PA-KK v.
TRACY JOHNSON, Acting Warden; MEMORANDUM* DANNY SAMUEL; L. BIRD,
Respondents-Appellees.
Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding
Argued and Submitted October 16, 2023 Pasadena, California
Before: PAEZ and H.A. THOMAS, Circuit Judges, and RAKOFF,** District Judge.
Lance Williams, a former California state prisoner, appeals the district
court’s denial of his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under
28 U.S.C. §§ 1291 and 2253. Our review of Williams’ petition is governed by the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. Antiterrorism and Effective Death Penalty Act (“AEDPA”). See 28 U.S.C.
§ 2254(d). Under AEDPA, we may grant habeas relief only if the state court’s
adjudication of the merits of Williams’ claims was either (1) “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or (2) “based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” Id. at (1)–(2). We review de novo a district court’s denial
of a habeas petition. Dickey v. Davis, 69 F.4th 624, 635 (9th Cir. 2023). We affirm.
1. Respondents-Appellees argue that Williams’ appeal is moot because he
was released from prison. To maintain a suit after an individual’s sentence has
expired, that individual must show “some concrete and continuing injury other
than the now-ended incarceration or parole—some ‘collateral consequence’ of the
conviction[.]” Spencer v. Kemna, 523 U.S. 1, 7 (1998). By default, every
individual in the custody of the California Department of Corrections and
Rehabilitation (“CDCR”) during the COVID-19 pandemic received 12 weeks of
Positive Programming Credits (“PPC credits”). Those found guilty of a serious
Rules Violation Report (“RVR”), however, were excluded from receiving those
credits.
But for Williams’ serious RVR, he would have received the PPC credits and
been paroled 12 weeks earlier. See Cal. Code Regs., tit. 15, § 3043.6(b) (“The
2 award of [PPC credits] shall advance the inmate’s release date if sentenced to a
determinate term[.]”). With those credits properly applied, Williams’ current
parole term would end no later than March 2025 instead of June 2025.
Respondents-Appellees’ argument regarding whether CDCR can apply the PPC
credits to Williams’ parole term is unavailing because, “[o]nce the petitioner
sustains his burden of demonstrating entitlement to federal habeas relief, the
district court has wide discretion in choosing the appropriate remedy.” Dominguez
v. Kernan, 906 F.3d 1127, 1132 n.6 (9th Cir. 2018) (quoting Brian R. Means,
Federal Habeas Manual § 13:5 (2018)). Because the latest date at which Williams’
parole term will end is a collateral consequence of Williams’ disciplinary violation,
Williams’ appeal is not moot.
2. Respondents-Appellees also argue that Williams failed to properly invoke
federal habeas jurisdiction. “[H]abeas relief is available only for state prisoner
claims that lie at the core of habeas[,]” and “an action pursuant to 42 U.S.C. § 1983
‘is the exclusive vehicle for claims that are not within the core of habeas.’” Bean v.
Matteucci, 986 F.3d 1128, 1132 (9th Cir. 2021) (quoting Nettles v. Grounds, 830
F.3d 922, 930–31 (9th Cir. 2016) (en banc)). A claim falls outside the core of
habeas 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[.]” Nettles, 830 F.3d at 929. Here, reversal of Williams’ disciplinary
3 violation and restoration of the PPC credits would have caused Williams to be
released to parole 12 weeks earlier. Williams’ claims therefore lie at the “core of
habeas corpus,” and he properly invoked federal habeas jurisdiction.
3. Williams argues that the state court unreasonably applied Turner v. Safley,
482 U.S. 78 (1987), in finding that Section 3013 as applied to Williams did not
violate his First Amendment rights.1 After a correctional officer refused to add
Williams’ name back onto a phone call sign-up list, Williams told the officer:
“Well, you already know that I’m going to 602 you.”2 “[P]risoners retain the
constitutional right to petition the government for the redress of grievances.”
Turner, 482 U.S. at 84. In Turner, the Supreme Court held that “when a prison
regulation impinges on inmates’ constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests.” Id. at 89. But we have
acknowledged in the Section 1983 context that “there is no Supreme Court case
directly on point” concerning verbal threats to sue. Entler v. Gregoire, 872 F.3d
1031, 1041 (9th Cir. 2017). Additionally, in habeas, circuit precedent may not be
1 Section 3013, which is titled “Unlawful Influence,” states: “Inmates shall not attempt to gain special consideration or favor from other inmates, employees, institution visitors or any other person by the use of bribery, threat or other unlawful means.” Cal. Code Regs., tit. 15, § 3013. 2 A “602” refers to CDCR Form 602-1, which is an administrative grievance form that people in custody fill out “to dispute a policy, decision, action, condition, or omission by the department or departmental staff.” Cal. Code Regs., tit. 15, § 3481.
4 used “to refine or sharpen a general principle of Supreme Court jurisprudence into
a specific legal rule that [the Supreme] Court has not announced.” Marshall v.
Rodgers, 569 U.S. 58, 64 (2013).
Williams also argues that Section 3013 did not give him fair notice that his
statement constituted a threat. We have previously assumed without deciding that
the void-for-vagueness doctrine applied to a prison administrative regulation.
Castro v. Terhune, 712 F.3d 1304, 1310 (9th Cir. 2013). But no Supreme Court
decision has applied the void-for-vagueness doctrine to any prison administrative
regulation.
In the absence of clearly established federal law regarding verbal threats to
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 3 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
LANCE ELLIOT WILLIAMS, No. 21-56234
Petitioner-Appellant, D.C. No. 2:20-cv-10304-PA-KK v.
TRACY JOHNSON, Acting Warden; MEMORANDUM* DANNY SAMUEL; L. BIRD,
Respondents-Appellees.
Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding
Argued and Submitted October 16, 2023 Pasadena, California
Before: PAEZ and H.A. THOMAS, Circuit Judges, and RAKOFF,** District Judge.
Lance Williams, a former California state prisoner, appeals the district
court’s denial of his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under
28 U.S.C. §§ 1291 and 2253. Our review of Williams’ petition is governed by the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. Antiterrorism and Effective Death Penalty Act (“AEDPA”). See 28 U.S.C.
§ 2254(d). Under AEDPA, we may grant habeas relief only if the state court’s
adjudication of the merits of Williams’ claims was either (1) “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or (2) “based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” Id. at (1)–(2). We review de novo a district court’s denial
of a habeas petition. Dickey v. Davis, 69 F.4th 624, 635 (9th Cir. 2023). We affirm.
1. Respondents-Appellees argue that Williams’ appeal is moot because he
was released from prison. To maintain a suit after an individual’s sentence has
expired, that individual must show “some concrete and continuing injury other
than the now-ended incarceration or parole—some ‘collateral consequence’ of the
conviction[.]” Spencer v. Kemna, 523 U.S. 1, 7 (1998). By default, every
individual in the custody of the California Department of Corrections and
Rehabilitation (“CDCR”) during the COVID-19 pandemic received 12 weeks of
Positive Programming Credits (“PPC credits”). Those found guilty of a serious
Rules Violation Report (“RVR”), however, were excluded from receiving those
credits.
But for Williams’ serious RVR, he would have received the PPC credits and
been paroled 12 weeks earlier. See Cal. Code Regs., tit. 15, § 3043.6(b) (“The
2 award of [PPC credits] shall advance the inmate’s release date if sentenced to a
determinate term[.]”). With those credits properly applied, Williams’ current
parole term would end no later than March 2025 instead of June 2025.
Respondents-Appellees’ argument regarding whether CDCR can apply the PPC
credits to Williams’ parole term is unavailing because, “[o]nce the petitioner
sustains his burden of demonstrating entitlement to federal habeas relief, the
district court has wide discretion in choosing the appropriate remedy.” Dominguez
v. Kernan, 906 F.3d 1127, 1132 n.6 (9th Cir. 2018) (quoting Brian R. Means,
Federal Habeas Manual § 13:5 (2018)). Because the latest date at which Williams’
parole term will end is a collateral consequence of Williams’ disciplinary violation,
Williams’ appeal is not moot.
2. Respondents-Appellees also argue that Williams failed to properly invoke
federal habeas jurisdiction. “[H]abeas relief is available only for state prisoner
claims that lie at the core of habeas[,]” and “an action pursuant to 42 U.S.C. § 1983
‘is the exclusive vehicle for claims that are not within the core of habeas.’” Bean v.
Matteucci, 986 F.3d 1128, 1132 (9th Cir. 2021) (quoting Nettles v. Grounds, 830
F.3d 922, 930–31 (9th Cir. 2016) (en banc)). A claim falls outside the core of
habeas 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[.]” Nettles, 830 F.3d at 929. Here, reversal of Williams’ disciplinary
3 violation and restoration of the PPC credits would have caused Williams to be
released to parole 12 weeks earlier. Williams’ claims therefore lie at the “core of
habeas corpus,” and he properly invoked federal habeas jurisdiction.
3. Williams argues that the state court unreasonably applied Turner v. Safley,
482 U.S. 78 (1987), in finding that Section 3013 as applied to Williams did not
violate his First Amendment rights.1 After a correctional officer refused to add
Williams’ name back onto a phone call sign-up list, Williams told the officer:
“Well, you already know that I’m going to 602 you.”2 “[P]risoners retain the
constitutional right to petition the government for the redress of grievances.”
Turner, 482 U.S. at 84. In Turner, the Supreme Court held that “when a prison
regulation impinges on inmates’ constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests.” Id. at 89. But we have
acknowledged in the Section 1983 context that “there is no Supreme Court case
directly on point” concerning verbal threats to sue. Entler v. Gregoire, 872 F.3d
1031, 1041 (9th Cir. 2017). Additionally, in habeas, circuit precedent may not be
1 Section 3013, which is titled “Unlawful Influence,” states: “Inmates shall not attempt to gain special consideration or favor from other inmates, employees, institution visitors or any other person by the use of bribery, threat or other unlawful means.” Cal. Code Regs., tit. 15, § 3013. 2 A “602” refers to CDCR Form 602-1, which is an administrative grievance form that people in custody fill out “to dispute a policy, decision, action, condition, or omission by the department or departmental staff.” Cal. Code Regs., tit. 15, § 3481.
4 used “to refine or sharpen a general principle of Supreme Court jurisprudence into
a specific legal rule that [the Supreme] Court has not announced.” Marshall v.
Rodgers, 569 U.S. 58, 64 (2013).
Williams also argues that Section 3013 did not give him fair notice that his
statement constituted a threat. We have previously assumed without deciding that
the void-for-vagueness doctrine applied to a prison administrative regulation.
Castro v. Terhune, 712 F.3d 1304, 1310 (9th Cir. 2013). But no Supreme Court
decision has applied the void-for-vagueness doctrine to any prison administrative
regulation.
In the absence of clearly established federal law regarding verbal threats to
sue or the void-for-vagueness doctrine in the prison regulation context, the state
court’s adjudication of Williams’ claims was neither contrary to, nor did it involve
an unreasonable application of, clearly established federal law.
4. Williams argues that by denying him an evidentiary hearing and instead
relying only on the administrative record, the state court’s decision was based on
an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(2). Williams
“does not point to any material fact that the court failed to consider,” however.
DeWeaver v. Runnels, 556 F.3d 995, 1007 (9th Cir. 2009). The state court relied on
evidence from the RVR and the disciplinary hearing. During the disciplinary
hearing, Williams testified that he would have said nothing and walked away if the
5 correctional officer had placed Williams’ name back on the list. The correctional
officer also testified that Williams had threatened to “602” him multiple times in
the past. We “may not second-guess a state court’s fact-finding process unless,
after review of the state-court record,” we determine “that the state court was not
merely wrong, but actually unreasonable.” Taylor v. Maddox, 366 F.3d 992, 999
(9th Cir. 2004), abrogated on other grounds by Murray v. Schriro, 745 F.3d 984
(9th Cir. 2014). Given the evidence presented, fair-minded jurists could disagree
about whether the state court’s determination of the facts was reasonable.
5. Williams requests that we expand the scope of his certificate of
appealability (“COA”) to include his retaliation claim. Under AEDPA, a COA
cannot be issued or expanded unless “the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Williams relies on
the same arguments made in his as-applied First Amendment claim to satisfy the
“protected conduct” requirement of his retaliation claim. In the absence of clearly
established federal law, Williams’ retaliation claim fails for the same reasons as his
as-applied First Amendment claim. Williams therefore cannot make a substantial
showing of the denial of a constitutional right.
AFFIRMED.