Dennis Gordon v. JEFF PREMO, Superintendent

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENNIS GORDON,
Petitioner-Appellant,
v.
JEFF PREMO, Superintendent,
Respondent-Appellee.
No. 17-36014
D.C. No.
6:16-cv-01018-SI
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted March 8, 2019**
Portland, Oregon
Before: GRABER and BERZON, Circuit Judges, and ROBRENO,*** District
Judge.
Gordon, who pleaded guilty to rape and murder in 1976, appeals the district
court’s ruling that it lacked jurisdiction over his 28 U.S.C. § 2254 habeas corpus
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
FILED
MAR 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
petition. His petition alleged that the Oregon Board of Parole (the “Board”)
violated the Ex Post Facto Clause of the United States Constitution by increasing
the interval between his parole hearings from two years to ten based on a 2009
amendment to Oregon Revised Statute § 144.228.
Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016) (en banc), recognized that
“habeas is the exclusive vehicle for claims brought by state prisoners that fall
within the core of habeas,” and held that “a § 1983 action is the exclusive vehicle
for claims brought by state prisoners that are not within the core of habeas corpus.”
Id. at 927. It provided that “claims which would not necessarily lead to an earlier
release” are not within the core of habeas. Id. at 928, 935; see also Wilkinson v.
Dotson, 544 U.S. 74, 82 (2005) (“Because neither prisoner’s claim would
necessarily spell speedier release, neither lies at ‘the core of habeas corpus.’”
(quoting Preiser v. Rodriguez, 411 U.S. 475, 489 (1973))).
The relief requested by Gordon would merely switch him from a ten-year
parole review cycle back to a two-year cycle. The Board could continue to exercise
its discretion to deny Gordon parole regardless of this relief. Since the relief would
not “necessarily lead to an earlier release,” it is not “within the core of habeas” and
this court lacks jurisdiction over his § 2254 petition. Nettles, 830 F.3d at 927-28,
935.

-- 2 of 3 --

3
The proper avenue for Gordon’s claim is 42 U.S.C. § 1983. The court in
Nettles explained that even though a claim was “not cognizable in habeas,” a court
of appeals “must still consider whether the district court may construe [the] habeas
petition as pleading a cause of action under § 1983.” Id. at 935. It continued:
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. at 936 (quoting Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005)). The
court of appeals in Nettles then vacated the district court’s opinion and remanded
the case so that the district court could consider whether the petition was
convertible. Id.
Unlike the petitioner in Nettles, Gordon is not pro se and does not require the
heightened protections available to such a petitioner. See, e.g., Laws v. Lamarque,
351 F.3d 919, 924 (9th Cir. 2003) (“We must construe pro se habeas filings
liberally . . . .”). Moreover, his petition is not convertible on its face since, at a
minimum, he has named the wrong defendants. Therefore, we will not remand the
case, and, instead, we affirm the district court’s denial of Gordon’s § 2254 petition
based on a lack of jurisdiction.
AFFIRMED.

-- 3 of 3 --