Tarrance Vickers v. Rick Rackley

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TARRANCE VICKERS,
Petitioner-Appellant,
v.
RICK RACKLEY,
Respondent-Appellee.
No. 17-15776
D.C. No.
2:14-cv-01425-JAM-DB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted June 14, 2019
San Francisco, California
Before: SCHROEDER and M. SMITH, Circuit Judges, and RAKOFF,** District
Judge.
Tarrance Vickers appeals the district court’s dismissal of his habeas petition.
He argues that prisoners such as himself have a liberty interest in good time credits
that have been lost but are capable of restoration. We have jurisdiction pursuant to
* 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.
FILED
JUL 1 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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28 U.S.C. § 1291, and we affirm.
The standard for determining whether a state has created a liberty interest
that is protected by the Due Process Clause of the Fourteenth Amendment remains
“a moving target.” Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007).
Although the Supreme Court formerly recognized a liberty interest when a state
statute or regulation contained explicitly mandatory language, see Hewitt v. Helms,
459 U.S. 460, 471–72 (1983), the Court has since “generally” limited Due Process
liberty interests “to freedom from restraint which . . . imposes atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison
life,” Sandin v. Conner, 515 U.S. 472, 484 (1995) (citations omitted).
Vickers’s loss of an opportunity to restore 61 days of previously-forfeited
good time credits does not impose an atypical and significant hardship on him.
Nor has the Court recognized a due process right in the restoration of previously-
forfeited good time credits. Vickers relies on the Court’s decision in Wolff v.
McDonnell, but Wolff held only that prisoners have a liberty interest in retaining
good time credits that they have already earned. 418 U.S. 539, 557 (1974). Its
holding does not apply here because Vickers had already lost his good time credits
before applying to restore them.
In the absence of clearly established federal law creating a due process right
to the restoration of previously-forfeited good time credits, Vickers is not entitled

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to relief. See 28 U.S.C. § 2254(d)(1) (“An application for a writ of habeas corpus .
. . shall not be granted . . . unless the adjudication of the claim . . . resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States . . . .”).
AFFIRMED.

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