Jaime v. Sandor, No. 5:2011cv01827 - Document 10 (C.D. Cal. 2012)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. On November 14, 2011, Frank Jaime (Petitioner), a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (the Petit ion). For the reasons discussed below, the Petition is DENIED and this action is DISMISSED WITH PREJUDICE. IT IS ORDERED that: (1) the Petition is DENIED; and (2) Judgment shall be entered dismissing this action with prejudice. (See Order for details.) (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 FRANK JAIME, ) ) Petitioner, ) ) v. ) ) DALINDA HARMAN, Acting Chief, ) ) Respondent. ) ________________________________) NO. EDCV 11-01827 SS MEMORANDUM DECISION AND ORDER 16 17 I. 18 INTRODUCTION 19 20 On November 14, 2011, Frank Jaime ( Petitioner ), a California 21 state prisoner1 proceeding pro se, filed a Petition for Writ of Habeas 22 23 24 25 26 27 28 1 Petitioner is currently being held at the Tallahatchie County Correctional Facility in Tutwiler, Mississippi, under contract with the California Department of Corrections and Rehabilitation. A petitioner for habeas corpus relief must name the state officer having custody of him or her as the respondent to the petition. Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994); see also Cal. Code Regs., tit. 15, § 3379(a)(9)(I) (providing that an inmate transferred to an out-of-state facility remains under the legal custody of the CDCR). The Court therefore substitutes as Respondent Dalinda Harman, Acting Chief of the Contract Beds Unit of the CDCR, for her predecessor pursuant to Federal Rule of Civil Procedure 25(d). 1 Corpus pursuant to 28 U.S.C. § 2254 (the Petition ).2 2 2011, the Court issued an Order To Show Cause Why This Action Should Not 3 Be Dismissed As Untimely (the Order to Show Cause or OSC ) because 4 the Petition appeared untimely on its face. 5 Petitioner filed an Answer to the Order to Show Cause (the Response ). 6 The parties have consented to the jurisdiction of the undersigned United 7 States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons 8 discussed below, the Petition is DENIED and this action is DISMISSED 9 WITH PREJUDICE. On November 21, On December 2, 2011, 10 11 II. 12 PRIOR PROCEEDINGS 13 14 According to the Petition, on November 9, 2008, correctional 15 officers at the California Rehabilitation Center in Norco, California, 16 where Petitioner was then housed, discovered eighteen bindles of an 17 unidentified substance under Petitioner s pillow. (Petition at 12; id., 18 Exh. G, at 1).3 Officers suspected that the contraband was heroin and, 19 20 21 22 23 24 25 26 27 28 2 Under the mailbox rule, a pleading filed by a pro se prisoner is deemed to be filed as of the date the prisoner delivered it to prison authorities for mailing, not the date on which the pleading may have been received by the court. See Houston v. Lack, 487 U.S. 266, 270, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988); Anthony v. Cambra, 236 F.3d 568, 574-75 (9th Cir. 2000). Here, the Court cannot calculate the filing date of the Petition pursuant to the mailbox rule because the attached proof of service states that Petitioner did not deliver the Petition to prison officials for mailing until November 30, 2011, two weeks after the Court actually received the Petition. (See Petition at 60). Petitioner also dated his signature on the Petition November 30, 2011. (Id. at 9). As these dates appear to be an error, the Court declines to apply the mailbox rule. 3 The Petition consists of a nearly blank form Petition, two Memoranda of Points and Authorities, and Exhibits A-K. The Court will 2 1 upon receiving a positive result from a preliminary test conducted using 2 a Jr. Nark Kit, immediately placed Petitioner in Administrative 3 Segregation. 4 2008, Petitioner went before the Institutional Classification Committee 5 and was informed . . . that the suspected narco[t]ics ha[d] been sent 6 to a toxicology lab for testing. 7 ASU Review report, id., Exh. G, at 1). 8 contraband on December 19, 2008, and issued a report confirming that the 9 contraband was heroin on January 5, 2009. (Petition at 14; id., Exh. F, at 1). On November 13, (Petition at 13) (quoting Initial The lab reported receiving the (Id., Exh. I, at 1). The 10 CDCR completed a Form 115 Rules Violation Report ( RVR ) on January 5, 11 2009 informing Petitioner of the lab s findings. 12 Petitioner states that he received a copy of the RVR on January 12, 13 2009. 14 in a disciplinary hearing in which he was found guilty of trafficking 15 in drugs. (Id. at 16). As punishment, Petitioner forfeited one hundred 16 eighty (180) days of credit, (id., Exh. J at 1), which extended his 17 anticipated release date from March 28, 2012, (id., Exh. G at 1), to 18 September 24, 2012. (Petition at 28). (Petition at 15). (Id., Exh. H, at 1). On February 6, 2009, Petitioner participated 19 20 On February 10, 2011, Petitioner filed a habeas petition in the 21 Riverside Superior Court.4 22 was denied on March 14, 2011 on the grounds that the CDCR properly (Id. at 17; id., Exh. D at 1). The petition 23 24 cite to the Petition and accompanying memoranda as though they formed a 25 single, consecutively paginated document. The Court will cite to the Exhibits by letter and consecutive page number within each separate 26 Exhibit. 27 4 The Court is unable to apply the mailbox rule to Petitioner s state habeas petitions because Petitioner has not included copies of 28 their signature pages or proofs of service with the Petition. 3 1 complied with procedural regulations governing disciplinary hearings and 2 there was some evidence to support the decision of the Department of 3 Rehabilitation and Corrections regarding the Petitioner s guilt on the 4 matters of which he was accused. (Id., Exh. A at 2). 5 Petitioner filed a habeas petition in the California Court of Appeal, 6 (Petition at 18; see also California Appellate Courts Case Information 7 Website, Case No. E053548, Fourth Appellate District, Division Two, 8 http://appellatecases.courtinfo.ca.gov).5 The court denied the petition 9 on May 24, 2011. (Petition, Exh. B at 1). On May 12, 2011, On June 10, 2011, Petitioner 10 filed a habeas petition with the California Supreme Court. (See 11 California Appellate Courts Case Information Website, Case No. S193909, 12 http://appellatecases.courtinfo.ca.gov). 13 Petition on July 20, 2011. 14 the instant Petition on November 14, 2011. The supreme court denied the (Petition, Exh. C at 1). Petitioner filed 15 16 III. 17 PETITIONER S CLAIM 18 19 Petitioner s sole claim for federal habeas relief alleges that his 20 Due Process and Eighth Amendment rights were violated because he was 21 forced to forfeit 180 days credit following a disciplinary hearing, even 22 though he did not receive a copy of a Form 115 RVR informing him of the 23 charges against him until January 12, 2009, sixty-four days after the 24 contraband was discovered on November 9, 2008. 25 the forfeiture following this unreasonable delay violated California Petitioner argues that 26 5 The Court takes judicial notice of Petitioner s state court records. Porter v. Ollison, 620 F.3d 952, 955 n.1 (9th Cir. 2010) (taking judicial notice of court dockets, including those available on 28 the Internet, from petitioner's state court proceedings). 27 4 1 Code of Regulations Title 15, section 3320, which prohibits the denial 2 or forfeiture of credits when an inmate is not provided with a copy of 3 the CDC Form 115 within 15 days after the discovery of the information 4 leading to the charges . . . . (Petition at 14; see also Cal. Code 5 Regs., tit. 15, § 3320(a) & (f)). As relief, Petitioner asks the Court 6 to [i]ssue an order for the California Department of Corrections and 7 Rehabilitation to restore the 180 days of lost behavior credits to the 8 [P]etitioner. (Petition at 19). 9 10 IV. 11 DISCUSSION 12 13 A. AEDPA s Limitations Period Governs The Petition 14 15 The Antiterrorism and Effective Death Penalty Act ( AEDPA ), which 16 effected amendments to the federal habeas statutes, applies to the 17 instant Petition because Petitioner filed it after AEDPA s effective 18 date of April 24, 1996. 19 S. Ct. 2059, 138 L. Ed. 2d 481 (1997). 20 federal habeas litigation by imposing a specific time limit on the 21 filing of federal habeas petitions. 22 274, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005). 23 limitations period, Congress intended to reduce delays in the execution 24 of state and federal criminal sentences. Woodford v. Garceau, 538 U.S. 25 202, 206, 123 S. Ct. 1398, 155 L. Ed. 2d 363 (2003). See Lindh v. Murphy, 521 U.S. 320, 322-23, 117 AEDPA dramatically altered See Rhines v. Weber, 544 U.S. 269, By creating a 26 27 28 Here, Petitioner is challenging the decision of the disciplinary board to forfeit 180 days of good 5 time credit. Therefore, the 1 applicable one-year limitations period under AEDPA is that set forth in 2 28 U.S.C. section 2244(d)(1)(D), which provides that the statute of 3 limitations begins to run on the date on which the factual predicate 4 of the claim or claims presented could have been discovered through the 5 exercise of due diligence. See Mardesich v. Cate, 668 F.3d 1164, 1170 6 (9th Cir. 2012); Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004) 7 (holding 8 administrative decisions such as parole and disciplinary boards ) 9 (citing Redd v. McGrath, 343 F.3d 1077, 1082 (9th Cir. 2003)). that subsection (D) applies to habeas claims based on 10 11 B. Petitioner Did Not File His Petition Within The Limitations Period 12 13 The Ninth Circuit has explained that the factual predicate 14 triggering the commencement of AEDPA s one-year statute of limitations 15 period for challenges to prison administrative decisions occurs when the 16 decision becomes final. 17 decision); Shelby, 391 F.3d at 1066 (disciplinary board decision). 18 Disciplinary board decisions generally become final within 30 days of 19 being issued, when the period of time to file an appeal expires. 20 Cal. Code Regs., tit. 15, § 3084.8(b)(1) (providing 30 days to file an 21 appeal of a prison disciplinary decision). Redd, 343 F.3d at 1084 (parole board See 22 23 Here, the Disciplinary Board issued its decision on February 6, 24 2009 and it does not appear that Petitioner filed an appeal. (Petition 25 at 16; id., Exh. J at 1). 26 thirty days later, on March 8, 2009. 27 limitations began to run the following day, March 9, 2009, and expired 28 one year later, on March 9, 2010. Thus, the Board s decision became final Accordingly, the statute of Because Petitioner did not file the 6 1 instant Petition until November 14, 2011, the Petition is untimely by 2 1 year, 8 months, and 5 days, absent tolling. 3 4 C. Petitioner Cannot Receive Statutory Tolling 5 6 AEDPA includes a statutory tolling provision that suspends the 7 limitations period for the time during which a properly filed 8 application for post-conviction or other collateral review is pending 9 in state court. 28 U.S.C. § 2244(d)(2); Bonner v. Carey, 425 F.3d 1145, 10 1148 (9th Cir. 2005). However, the Ninth Circuit has held that section 11 2244(d) does not permit the reinitiation of the limitations period that 12 has ended before the state petition was filed. 13 321 F.3d 820, 823 (9th Cir. 2003); see also Jiminez v. Rice, 276 F.3d 14 478, 482 (9th Cir. 2001) (concluding that delay in filing state habeas 15 petition until after the AEDPA limitations period had expired resulted 16 in an absolute time bar to refiling after [petitioner s] state claims 17 were exhausted ). 18 because he did not file his first state habeas petition until February 19 10, 2011, eleven months after the period had already expired on March 20 9, 2010. Ferguson v. Palmateer, Here, Petitioner cannot receive statutory tolling (See Petition at 17). 21 22 The Court expressly advised Petitioner that he had the burden of 23 proof to demonstrate that he was entitled to statutory tolling. 24 at 4); see also Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010) ( [The 25 petitioner] bears the burden of proving that the statute of limitations 26 was tolled. ). In his Response, Petitioner contends that he is entitled 27 to tolling because he had to overcome numerous Race-based lockdown[s] 28 and was involuntarily located to two out-of-state prisons, where he 7 (OSC 1 found it extremely hard to access the law library. (Response at 2). 2 These arguments, however, are more properly considered in the context 3 of equitable tolling and do not address the fact that the AEDPA 4 limitations period had already expired before he filed his first state 5 habeas petition. 6 receive statutory tolling. Thus, the Court concludes that Petitioner cannot 7 8 D. Equitable Tolling Cannot Render The Petition Timely 9 10 In addition to the statutory tolling provided for by Section 11 2244(d)(2), the 12 equitable tolling if a petitioner can demonstrate that he diligently 13 pursued his rights and extraordinary circumstances beyond his control 14 made it impossible to timely file his petition. 15 F.3d 951, 962-63 (9th Cir. 2002) (internal quotation marks omitted). 16 A petitioner seeking equitable tolling bears the burden of establishing 17 both: (1) that he has diligently pursued his rights; and (2) that some 18 extraordinary circumstance stood in his way. 19 __U.S. __, 130 S. Ct. 2549, 2562, 177 L. Ed. 2d 130 (2010). 20 extraordinary circumstances threshold is set very high and means 21 that equitable tolling will not be available in most cases. 22 Castro, 292 F.3d 1063, 1066 (9th Cir. 2002). 23 emphasized 24 equitable tolling are highly fact-dependent. Whalem/Hunt v. Early, 233 25 F.3d 1146, 1148 (9th Cir. 2000) (en banc). that AEDPA limitations determinations period may of whether also be subject to Malcolm v. Payne, 281 See Holland v. Florida, The Miranda v. The Ninth Circuit has there are grounds for 26 27 Broadly construed, Petitioner s Response to the OSC appears to 28 claim that he is entitled to equitable tolling from March 8, 2009, when 8 1 the decision of the Disciplinary Board became final, through February 2 10, 2011, when he filed his first state habeas petition. 3 above, Petitioner argues that he was unable to file his petitions sooner 4 because he had to overcome numerous Race-based lockdown[s] during the 5 time the Court pointed out as the claims being filed late and was 6 involuntarily relocated to two out-of-state prisons. 7 Petition also argues that [b]ecause of all the relocation, [P]etitioner 8 has found it is extremely hard to access the law library in these out- 9 of-state prisons . . . . As noted (Response at 2). (Id.). 10 11 The Court specifically advised Petitioner that he bears the burden 12 of proof to demonstrate that he is entitled to equitable tolling. 13 at 4) (citing Miranda, 292 F.3d at 1065). 14 lockdowns, 15 insufficient, by themselves, to qualify for equitable tolling as they 16 are nothing more than the ordinary inconveniences of prison life. 17 example, the Ninth Circuit has found that [o]rdinary prison limitations 18 on [a petitioner s] access to the law library and copier . . . 19 neither extraordinary nor made it impossible for him to file his 20 petition in a timely manner. 21 security restrictions in prison, concluding otherwise would permit the 22 exception to swallow the rule . . . . 23 998 (9th Cir. 2009); see also Frye v. Hickman, 273 F.3d 1144, 1146 (9th 24 Cir. 2001) (rejecting argument that lack of access to library materials 25 automatically qualified as grounds for equitable tolling). transfers, and limited (OSC Petitioner s vague claims of access to a law library are For were Given even the most common day-to-day Ramirez v. Yates, 571 F.3d 993, 26 27 28 Other courts have also concluded that such ordinary difficulties of prison life are insufficient to qualify for equitable tolling. 9 See, 1 e.g., Corrigan v. Barbery, 371 F. Supp. 2d 325, 330 (W.D. N.Y. 2005) 2 ( In general, the difficulties attendant on prison life, such as 3 transfers 4 restricted access to the law library, and an inability to secure court 5 documents, 6 circumstances. ); Lindo v. Lefever, 193 F. Supp. 2d 659, 663 (E.D. N.Y. 7 2002) ( Transfers between prison facilities, solitary confinement, 8 lockdowns, restricted access to the law library and an inability to 9 secure court documents do not qualify as extraordinary circumstances. ); 10 Adamas v. Hedgpeth, 2012 WL 1032783 at *4 (C.D. Cal. Feb. 28, 2012) 11 ( [L]ockdowns, restricted library access and transfers do not constitute 12 extraordinary circumstances sufficient to equitably toll the statute of 13 limitations. Prisoners familiar with the routine restrictions of prison 14 life must take such matters into account when calculating when to file 15 a federal petition. ) (internal quotation marks omitted). between do not facilities, by solitary themselves confinement, qualify as lockdowns, extraordinary 16 17 Petitioner has not presented any facts to distinguish his 18 circumstances from those in which federal courts have rejected claims 19 of equitable tolling based on the typical limitations of prison life. 20 Vague assertions that lockdowns prevented the timely filing of a 21 petition are insufficient to justify equitable tolling, particularly 22 because Petitioner fails to specify when the lockdowns occurred, how 23 long they lasted, and why they prevented his access to the library. For 24 the same reasons, Petitioner s claims that transfers to out-of-state 25 prisons impeded his ability to conduct library research also fail. 26 Indeed, Petitioner has not shown any need for extensive library time to 27 file his Petition. 28 alleged violation of a California regulation governing when an inmate The Petition raises a single claim based on an 10 1 must be given notice of disciplinary charges against him. Petitioner 2 admits that he already knew of this regulation as of the date of the 3 disciplinary hearing because he argued to the hearing officers that he 4 improperly received late notice of the charges: 5 6 On February 6, 2009, [Petitioner] finally went before the 7 disciplinary officer for hearing. At this time, he brought to 8 the disciplinary hearing officers [sic] attention that the 9 correctional officers did not follow procedure regarding the 10 processing of the evidence, and that in their attempts to mask 11 the unreasonable delay and not have to submit a written delay 12 request [sic], correctional officers simply sent out the 13 evidence, 40 days late, to the toxicology lab and issued the 14 Rules Violation Report form C.D.C. 115 to the inmate within 15 the 15 day time limitation [sic] in hopes the wrongs of the 16 officers would not be discovered. 17 18 (Petition at 16). Consequently, Petitioner knew the legal and factual 19 bases for his sole claim on the date of disciplinary hearing, which was 20 held more than two years before he filed his first state habeas 21 petition. 22 bring this claim was in any way hampered by lockdowns, transfers, or 23 limited library access. Petitioner has failed to demonstrate that his ability to 24 25 In sum, the Court concludes that equitable tolling cannot render 26 the Petition timely. Because Petitioner filed the current Petition on 27 November 14, 2011, more than one year and eight months after the filing 28 deadline had passed, it is barred by AEDPA s statute of limitations. 11 1 2 E. Petitioner s Actual Innocence Claim Does Not Excuse His Untimely Filing 3 4 Petitioner contends in his Response to the OSC that his 5 untimeliness should be excused because he is actually innocent of 6 committing the charged crime; hence his procedural default cannot be 7 used to deny him the right to have his habeas claim heard on the 8 merits. 9 851, 130 L. Ed. 2d 808 (1995), the Supreme Court held that the 10 principles of comity and finality that inform the procedural default 11 doctrine must yield to avoid a fundamental miscarriage of justice. 12 Id. at 320-21. 13 a constitutional violation has probably resulted in the conviction of 14 one who is actually innocent. 15 477 U.S. 478, 496, 106 16 [A]ctual 17 insufficiency. Bousley v. United States, 523 U.S. 614, 623, 118 S. Ct. 18 1604, 140 L. Ed. 2d 828 (1998). (Response at 3). In Schlup v. Delo, 513 U.S. 298, 115 S. Ct. To establish such a claim, a petitioner must show that innocence S. Id. at 327 (quoting Murray v. Carrier, Ct. 2639, 91 L. Ed. 2d 397 (1986)). means factual innocence, not mere legal 19 20 A Schlup claim of innocence does not itself constitute a 21 constitutional claim, but is instead a gateway through which a habeas 22 petitioner must pass to have his otherwise barred constitutional claim 23 considered on the merits. 24 (9th Cir. 2007) (en banc) (internal quotation marks omitted). 25 credible, such a claim requires petitioner to support his allegations 26 of constitutional error with new reliable evidence . . . that was not 27 presented at trial. 28 threshold requirement, a petitioner must persuade[] the district Smith v. Baldwin, 510 F.3d 1127, 1139-40 Schlup, 513 U.S. at 324. 12 To be To meet Schlup s 1 court that, in light of the new evidence, no juror, acting reasonably, 2 would have voted to find him guilty beyond a reasonable doubt. 3 329; see also Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (en 4 banc) ( [W]here an otherwise time-barred habeas petitioner demonstrates 5 that it is more likely than not that no reasonable juror would have 6 found him guilty beyond a reasonable doubt, the petitioner may pass 7 through the Schlup gateway and have his constitutional claims heard on 8 the merits. ). Id. at 9 10 Assuming, without deciding, proceedings, that applies 12 Schlup s 13 innocence gateway, [t]he evidence of innocence must be so strong that 14 a court cannot have confidence in the outcome of the trial. 15 F.3d at 937 (internal quotation marks omitted). 16 cites to no evidence at all, much less new evidence, to support his bald 17 assertion of actual innocence. To Without enter any the do prison disciplinary requirements.6 allegations to 11 evidentiary Petitioner s Schlup not satisfy Schlup actual Lee, 653 Petitioner, however, supporting evidence, 18 19 20 21 22 23 24 25 26 27 28 6 While the Court has found several unpublished cases applying the Schlup standard to disciplinary hearings, it has not been able to find any binding precedent holding that Schlup applies in this context. See, e.g., Stuart v. Singh, 2011 WL 2746096 at *4 n.7 (E.D. Cal. July 14, 2011) (noting the lack of clear authority to apply Schlup to disciplinary hearings while determining in the alternative that petitioner failed to make the stringent showing required by Schlup); Parmelee v. Fraker, 2010 WL 546933, *9 (W.D. Wash. Feb. 11, 2010) (applying Schlup to find that petitioner presents no new evidence demonstrating that it is more likely than not that no reasonable hearing officer would have convicted him in light of new evidence ); Doyle v. Abbott, 330 Fed. Appx. 703, 708 (10th Cir. 2009) (rejecting petitioner s claim that he was actually innocent of disciplinary conviction because he had presented no new reliable evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence -- that was not presented at trial ) (quoting Schlup, 513 U.S. at 324)). 13 1 Plaintiff fails to undermine confidence in the disciplinary board s 2 findings, which were based on a laboratory analysis that confirmed that 3 the contraband removed from under Petitioner s pillow was heroin. 4 Petition, Exh. I at 1). 5 cannot pass through the Schlup gateway to excuse the untimeliness of his 6 Petition. (See Thus, the Court concludes that Petitioner 7 8 9 F. Even If The Petition Were Not Untimely, Petitioner s Claim Fails On The Merits 10 11 Even if Petitioner s claim were not untimely, it would fail on the 12 merits. Petitioner claims that his rights to due process and to be free 13 from cruel and unusual punishment were violated when the CDCR forfeited 14 180 days credit for a disciplinary violation even though Petitioner did 15 not receive timely notice of the charges against him. 16 21, 24). 17 Form 115 RVR within 15 days after discovering the bindles of contraband 18 under his pillow, not after the CDCR received confirmation from the lab 19 that the contraband was indeed heroin. 20 received notice more that fifteen days after the bindles were found, 21 Petitioner argues that the CDCR was barred from forfeiting good time 22 credits under section 3320(f). (Petition at 6, Specifically, he alleges that the CDCR should have issued a (Id. at 23). Because he (Id. at 14). 23 24 The Riverside Superior Court rejected Petitioner s habeas claim 25 because Petitioner received the CDC 115 within 15 days from the date 26 the information leading to the charges was discovered by staff, that is, 27 the required confirmatory laboratory analysis establishing that the item 28 seized is in fact a controlled substance. 14 This is particularly true 1 where the code provides that the field test shall be conducted for 2 screening purposes only. 3 occur absent the confirming laboratory analysis. 4 at 2). The court also found that [t]here is some evidence to support 5 the decision . . . regarding the Petitioner s guilt on the matters of 6 which he was accused. A loss of worker behavior credits may not (Petition, Exh. A, (Id.). 7 8 To the extent that Petitioner s claim is based solely on a 9 purported violation of the procedural requirements set forth in Cal. 10 Code Regs., tit. 15, § 3320, the claim fails because federal habeas 11 relief is not normally available for violations of state law. 12 U.S.C. § 2254(a); Bradshaw v. Richey, 546 U.S. 74, 76, 126 S. Ct. 602, 13 163 L. Ed. 2d 407 (2005) (per curiam) ( [A] state court s interpretation 14 of state law . . . binds a federal court sitting in habeas corpus. ); 15 Estelle v. McGuire, 502 U.S. 62, 67 68, 112 S. Ct. 475, 116 L. Ed. 2d 16 385 (1991) ( [I]t is not the province of a federal habeas court to 17 reexamine state-court determinations on state-law questions. ). 18 CDCR officials and California courts interpret CDCR regulations to 19 calculate 20 requirement is not a matter of concern for federal courts. 21 petitioner transform a state-law issue into a federal one merely by 22 asserting a violation of [federal] due process. 23 110 F.3d 1380, 1389 (9th Cir. 1996). the triggering date for section 3320 s See 28 How notification Nor may a See Langford v. Day, 24 25 To the extent that Petitioner s claim attempts to present a federal 26 question, it likewise lacks merit. The Eighth Amendment s prohibition 27 of cruel and unusual punishment is specifically concerned with the 28 unnecessary and wanton infliction of pain in penal institutions. 15 1 Whitley v. Albers, 475 U.S. 312, 327, 106 S. Ct. 1078, 89 L. Ed. 2d 251 2 (1986). 3 inconsistent with contemporary standards of decency and repugnant to 4 the conscience of mankind. 5 97, 103, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)). 6 good time credits following notice and a hearing, even if notice of the 7 charges was delayed, hardly rises to the level of unnecessary and 8 wanton infliction of pain proscribed by the Eighth Amendment. Punishment violates the Eighth Amendment when it is Id. (quoting Estelle v. Gamble, 429 U.S. Forfeiture of 9 10 Petitioner s due process allegations fare no better. Due process 11 in a prison disciplinary proceeding is satisfied if the inmate receives 12 advance written notice of the charges; an opportunity, when consistent 13 with safety and correctional goals, to call witnesses and present 14 evidence; and a statement of the evidence relied on by the prison 15 officials and the reasons for disciplinary action. Wolff v. McDonnell, 16 418 17 Additionally, the Supreme Court has found that the revocation of good 18 time credits does not comport with procedural due process unless the 19 findings of the prison disciplinary board are supported by some evidence 20 in the record. See Walpole v. Hill, 472 U.S. 445, 454, 105 S. Ct. 2768, 21 86 L.Ed.2d 356 (1985).7 U.S. 539, 563 66, 94 S.Ct. 2963, 41 L. Ed. 2d 935 (1974). 22 23 24 25 26 27 28 7 While Walpole s holding requiring that some evidence support the revocation of good time credits pursuant to a disciplinary proceeding appears to remain good law, the Supreme Court rejected the proposition that federal due process is implicated in a state s violation of its own some evidence standard in denying parole eligibility. See Swarthout v. Cooke, __ U.S. __, 131 S. Ct. 859, 862, 178 L. Ed. 2d 732 (2011) (per curiam) (federal due process requires only minimal procedures to vindicate state-created liberty interest in parole, i.e., a hearing and statement of reasons why parole is denied). 16 1 The Supreme Court has determined that due process entitles an 2 inmate to a brief period of time after [receiving] the [written] 3 notice, no less than 24 hours to prepare for a disciplinary hearing. 4 Wolff, 418 U.S. at 564. 5 written notice more than twenty-four hours before his hearing, that he 6 was able to present arguments and evidence at the hearing, or that he 7 received a written statement of the reasons for the disciplinary board s 8 decision, which is all the process he was due pursuant to clearly 9 established Supreme Court case law. Petitioner does not challenge that he received The Supreme Court has not clearly 10 established, however, that a prison must inform a prisoner of an alleged 11 violation within a specific time from the date it discovered the facts 12 underlying the charge. 13 Petitioner s claim that the prison violated its procedures does not 14 warrant federal habeas relief. See Garrett v. Marshall, 2009 WL 3417786 15 at *3 (C.D. Cal. Oct. 20, 2009) ( Petitioner[ s] claim[] that the prison 16 officials violated Cal. Penal Code § 2932(c)(1)(A), and California Code 17 of Regulation, Tit. 15, § 3320 by not providing him with notice of the 18 disciplinary charges within 15 days after discovery of the evidence 19 giving rise to the charges . . . is firmly rooted in state law and thus 20 is not cognizable in a federal habeas corpus petition. ); Mercado v. 21 Sandor, 2011 WL 7115952 at *4 (C.D. Cal. Dec. 5, 2011) (same); Rogers 22 v. Horel, 2011 WL 4406361 at *2-3 (N.D. Cal. Sept. 20, 2011) (same). 23 The petition must be denied. Accordingly, even if the Petition were timely, 24 25 26 27 28 17 1 2 V. 3 CONCLUSION 4 5 6 IT IS ORDERED that: (1) the Petition is DENIED; and (2) Judgment shall be entered dismissing this action with prejudice. 7 8 9 DATED: April 27, 2012 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18

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