-SMS (HC) Felix v. California Department of Corrections and Rehabilitation, No. 1:2010cv00723 - Document 15 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS to GRANT Respondent's Motion to Dismiss, DISMISS the Petition Without Leave to Amend, DECLINE to Issue a Certificate of Appealability, and DIRECT the Clerk to Close the Case 14 , 1 ; OBJECTIONS DEADLINE: THIRTY (30) DAYS, signed by Magistrate Judge Sandra M. Snyder on 6/24/11: Matter referred to Judge Wanger. (Hellings, J)
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-SMS (HC) Felix v. California Department of Corrections and Rehabilitation Doc. 15 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 BRIAN FELIX, 11 Petitioner, 12 v. 13 JAMES D. HARTLEY, 14 Respondent. 15 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—00723-OWW-SMS-HC FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO DISMISS, DISMISS THE PETITION WITHOUT LEAVE TO AMEND, DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE (DOCS. 14, 1) OBJECTIONS DEADLINE: THIRTY (30) DAYS 17 Petitioner is a state prisoner proceeding pro se with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 19 The matter has been referred to the Magistrate Judge pursuant to 20 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending 21 before the Court is Respondent’s motion to dismiss the petition, 22 which was filed and served by mail on Petitioner on March 29, 23 2011. No opposition to the motion was filed. 24 I. Proceeding by a Motion to Dismiss 25 Because the petition was filed after April 24, 1996, the 26 effective date of the Antiterrorism and Effective Death Penalty 27 Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v. 28 1 Dockets.Justia.com 1 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 2 1484, 1499 (9th Cir. 1997). 3 A district court may entertain a petition for a writ of 4 habeas corpus by a person in custody pursuant to the judgment of 5 a state court only on the ground that the custody is in violation 6 of the Constitution, laws, or treaties of the United States. 7 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 8 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 9 16 (2010) (per curiam). 28 10 Rule 4 of the Rules Governing Section 2254 Cases in the 11 District Courts (Habeas Rules) allows a district court to dismiss 12 a petition if it “plainly appears from the face of the petition 13 and any exhibits annexed to it that the petitioner is not 14 entitled to relief in the district court....” 15 The Ninth Circuit has allowed respondents to file motions to 16 dismiss pursuant to Rule 4 instead of answers if the motion to 17 dismiss attacks the pleadings by claiming that the petitioner has 18 failed to exhaust state remedies or has violated the state’s 19 procedural rules. 20 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 21 a petition for failure to exhaust state remedies); White v. 22 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to 23 review a motion to dismiss for state procedural default); Hillery 24 v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). 25 Thus, a respondent may file a motion to dismiss after the Court 26 orders the respondent to respond, and the Court should use Rule 4 27 standards to review a motion to dismiss filed before a formal 28 answer. See, e.g., O’Bremski v. Maass, 915 F.2d 418, See, Hillery, 533 F. Supp. at 1194 & n.12. 2 1 In this case, upon being directed to respond to the petition 2 by way of answer or motion, Respondent filed the motion to 3 dismiss. 4 found in the pleadings and in copies of the official records of 5 state parole and judicial proceedings which have been provided by 6 the parties, and as to which there is no factual dispute. 7 Because Respondent's motion to dismiss is similar in procedural 8 standing to motions to dismiss on procedural grounds, the Court 9 will review Respondent’s motion to dismiss pursuant to its 10 The material facts pertinent to the motion are to be authority under Rule 4. 11 II. 12 Petitioner alleged that he was an inmate of the Avenal State 13 Prison at Avenal, California, serving a sentence for a conviction 14 suffered in 2008. (Pet. 1.) 15 Background Petitioner was accused of having committed the disciplinary 16 violation of undue familiarity with staff in violation of Cal. 17 Code Regs., tit. 15, § 3400. 18 investigation that he was involved in an overly familiar 19 relationship, and he pled guilty at the disciplinary hearing. 20 After Petitioner was found guilty of having committed the 21 violation, Petitioner appealed on the ground that wrong code 22 section had been used. 23 finding to reflect a violation of § 3005(a) instead of § 3400 24 because the latter applied to misconduct by staff, whereas § 3005 25 applied to the conduct of inmates. 26 Petitioner admitted during the The disciplinary authorities amended the Petitioner argues that he suffered a violation of due 27 process of law when the disciplinary authorities failed to re- 28 issue the charge and permit Petitioner to defend himself because 3 1 the new violation was not the same as the previous violation. 2 Petitioner alleges that he would not have pled guilty to a 3 violation of § 3005(a). 4 was deprived of notice of the elements of the violation and all 5 the procedural due process prescribed by pertinent state 6 regulations. 7 more severe. 8 9 (Pet. 5.) Petitioner alleges that he Further, he contends that the amended charge was Petitioner further argues that there was no evidence to find him guilty of violating § 3005(a). He also contends that state 10 court decisions upholding the disciplinary finding involved 11 unreasonable determinations of fact. 12 dismissal of the finding, and its expungement from the file. 13 (Pet. 5-6, 8.) 14 He seeks a new hearing, Documentation of the disciplinary proceedings reflects that 15 in the course of an investigation, Petitioner admitted in an 16 interview with a correctional agent on May 12, 2008, that he was 17 involved in an overly familiar relationship. 18 14-1, 14.) 19 relationship was discovered, and that Petitioner admitted being 20 involved in the relationship. 21 assigned an investigative employee on June 18, 2008, but 22 Petitioner did not request any witnesses and declined to make a 23 statement. 24 (Mot., Ex. 1, doc. The reporting employee stated that evidence of the (Id. at 15.) Petitioner was (Id.) Petitioner personally appeared at a disciplinary hearing 25 held before a Senior Hearing Officer (SHO) on June 20, 2008, and 26 confirmed that he had received all pertinent documentation at 27 least twenty-four hours before the hearing and was ready to 28 proceed. (Id. at 14-15.) Petitioner elected to plead guilty to 4 1 the violation but declined to make a statement. 2 The SHO found Petitioner guilty of violating Cal. Code Regs., 3 tit. 15, § 3400, because the violation was established by the 4 preponderance of the evidence based on the investigation, 5 Petitioner’s admission in the interview and failure to make any 6 statement in his defense, and Petitioner’s credible guilty plea. 7 (Id. at 16-17.) 8 behavior/work credit consistent with the schedule provided in 9 Cal. Code Regs., tit. 15, § 3323 for a Division “F” offense. 10 11 (Id. at 16.) Petitioner forfeited thirty (30) days of (Id. at 14, 17.) Petitioner appealed on the ground that the specific rule 12 that Petitioner was accused of violating was incorrect. 13 second level of administrative appeal, the inmate appeals 14 coordinator and warden agreed that the governing administrative 15 code section was Cal. Code Regs., tit. 15, § 3005(a); however, 16 because Petitioner had admitted to having an overly familiar 17 relationship, the charge would not be dismissed. 18 A director’s level appeal decision in January 2009 concluded that 19 although Petitioner received all procedural due process in 20 connection with the accusation and hearing, the wrong rule 21 violation was cited. 22 did not hinder Petitioner from preparing a defense to the charge 23 and did not warrant dismissal of the charge. 24 initiated to correct the designated administrative violation. 25 (Mot., Ex. 1, doc. 14-1, 23-24.) 26 Petitioner’s appeal was granted in part because the Chief 27 Disciplinary Officer changed the designated rule that was 28 violated to reflect conduct in violation of § 3005(a). At the (Id. at 23-24.) However, it was concluded that the error A modification was On August 15, 2008, 5 (Id. at 1 20.) 2 On February 13, 2009, the Riverside County Superior Court 3 denied Petitioner’s petition for writ of habeas corpus because 4 the facts did not show a denial of due process; Petitioner had 5 admitted the conduct that formed the basis of the disciplinary 6 charge, and there was no evidence that his defense to that 7 alleged conduct would have been different if the allegation had 8 been that his conduct violated § 3005 rather than § 3400. 9 21-27.) (Pet. 10 III. 11 Respondent argues that the case should be dismissed for 12 failure to allege facts sufficient to state a due process claim. 13 14 Due Process Claim A. Legal Standards The process due in a prison disciplinary proceeding 15 includes: 1) written notice of the charges; 2) at least a brief 16 period of time after the notice (no less than twenty-four hours) 17 to prepare for the hearing; 3) a written statement by the fact 18 finders as to the evidence relied on and reasons for the 19 disciplinary action; 4) an opportunity for the inmate to call 20 witnesses and present documentary evidence in his defense when 21 permitting him to do so will not be unduly hazardous to 22 institutional safety or correctional goals; and 5) aid from a 23 fellow inmate or staff member where an illiterate inmate is 24 involved or where the complexity of the issues makes it unlikely 25 that the inmate will be able to collect and present the evidence 26 necessary for an adequate comprehension of the case. 27 McDonnell, 418 U.S. 539, 564, 566, 570 (1974). 28 Wolff v. Further, where good-time credits are a protected liberty 6 1 interest, the decision to revoke credits must be supported by 2 some evidence in the record. 3 445, 454 (1985). 4 5 6 7 8 9 10 11 12 Superintendent v. Hill, 472 U.S. The Court in Hill stated: We hold that the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if “there was some evidence from which the conclusion of the administrative tribunal could be deduced....” United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S., at 106, 47 S.Ct., at 304. Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. See ibid.; United States ex rel. Tisi v. Tod, 264 U.S. 131, 133-134, 44 S.Ct. 260, 260-261, 68 L.Ed. 590 (1924); Willis v. Ciccone, 506 F.2d 1011, 1018 (CA8 1974). 13 Superintendent v. Hill, 472 U.S. at 455-56. 14 does not require that the evidence logically preclude any 15 conclusion other than the conclusion reached by the disciplinary 16 board; rather, there need only be some evidence in order to 17 ensure that there was some basis in fact for the decision. 18 Superintendent v. Hill, 472 U.S. at 457. 19 B. The Constitution Adequacy of Notice of the Violation 20 Petitioner was charged with violating, and initially found 21 to have violated, 15 Cal. Code Regs., tit. 15, § 3400, which at 22 all pertinent times has provided: 23 27 Employees must not engage in undue familiarity with inmates, parolees, or the family and friends of inmates or parolees. Whenever there is reason for an employee to have personal contact or discussions with an inmate or parolee or the family and friends of inmates and parolees, the employee must maintain a helpful but professional attitude and demeanor. Employees must not discuss their personal affairs with any inmate or parolee. 28 As Petitioner pointed out in his administrative appeal, 24 25 26 7 1 § 3400, which is found in a sub-chapter of the regulations 2 concerning personnel, primarily concerns the conduct of 3 employees. 4 The section that the disciplinary officer substituted for 5 § 3400 was Cal. Code Regs., tit. 15, § 3005(a), which at all 6 pertinent times has provided as follows: 7 8 9 10 (a) Inmates and parolees shall obey all laws, regulations, and local procedures, and refrain from behavior which might lead to violence or disorder, or otherwise endangers facility, outside community or another person. Petitioner argues that he did not receive adequate notice of 11 the charges because he was never apprised that he was being 12 charged under the more general section relating to inmates. 13 In Bostic v. Carlson, 884 F.2d 1267, 1270-71 (9th Cir. 14 1989), an inmate was found to have committed the disciplinary 15 violation of possession of contraband (stolen sandwiches) and was 16 assessed a forfeiture of thirty days of credit. 17 report, the violation was described as “stealing.” 18 sought relief under § 2241 for alleged due process violations. 19 The court stated the following with respect to the adequacy of 20 the notice given to the prisoner: 21 22 23 24 25 26 27 28 In the incident The prisoner Nor does appellant assert that the officer's description of the incident as “stealing” rather than as “possession of contraband” in the incident report deprived him of the opportunity to present a proper defense. The incident report described the factual situation that was the basis for the finding of guilt of possession of contraband and alerted Bostic that he would be charged with possessing something he did not own. Cf. Wolff, 418 U.S. at 563-64, 94 S.Ct. at 2978-79 (stating that “the function of [the] notice [of a claimed violation] is to give the charged party a chance to marshal the facts in his defense and to clarify what the charges are”). The incident report adequately performed the functions of notice described in Wolff. See id. 8 1 2 Bostic v. Carlson, 884 F.2d at 1270-71. The rules violation report in the present case stated that 3 the date of the violation was June 10, 2008. 4 § 3400 as the rule violated; in the box on the form labeled 5 “SPECIFIC ACTS,” it stated “Familiarity.” 6 stated the following: 7 8 9 It identified (Pet. 14.) It further On March 14, 2008, an investigation was initiated to determine the facts of allegations that Felix was engaged in an over-familiar relationship with an employee at CVSP. During the course of the investigation evidence was discovered that proved Inmate Felix was in fact involved in an over-familiar relationship. 10 11 On May 12, 2008, during the course of an interview with Inmate Felix, B. (H-40257), Felix self admitted being involved in an over-familiar relationship. 12 (Id.) 13 Thus, the incident report unambiguously described the 14 factual situation that was the basis for the finding of guilt of 15 behavior that might lead to disorder or endanger the facility or 16 another person. The report clearly alerted Petitioner that he 17 would be charged with engaging in an overly familiar relationship 18 with an employee. In view of the specificity of the allegations, 19 and considering Petitioner’s admission that he was engaged in 20 such a relationship, it is certain that Petitioner had an 21 opportunity to marshal the facts in his defense. Likewise, he 22 had a chance to clarify what the charges were. The incident 23 report thus adequately performed the essential functions of 24 notice that were determinative in Bostic and detailed in Wolff. 25 Petitioner emphasizes that the charged violation concerned 26 the conduct of an employee, whereas the violation ultimately 27 found concerned his own conduct. He asserts that he would not 28 9 1 have pleaded guilty to a charge involving his own conduct. 2 However, the violation in question concerned a relationship, or 3 at least conduct between two people. 4 involved Petitioner’s conduct. 5 that the movement from the particular to the more general charge 6 could have caused any uncertainty, let alone confusion, 7 concerning the conduct with which Petitioner was charged. 8 present case is thus analogous to other cases finding no 9 deficiency of notice, including Foote v. Knowles, No. 2:08-cv- Thus, it necessarily Therefore, it does not appear The 10 1029 LKK JFM (PC), 2010 WL 4942583, *1-*3 (E.D.Cal. 2010) (a due 11 process claim in a civil rights complaint that was construed to 12 be a habeas petition was properly dismissed where a disciplinary 13 finding that the inmate committed an admitted battery was 14 modified during an administrative appeal to a lesser charge of 15 mutual combat without a rehearing); Jackson v. Daniels, No. CV 16 06-1477-HU, 2007 WL 1989591, *2-*3 (D. Ore. 2007) (changing the 17 charge from fighting to wrestling at the disciplinary hearing did 18 not deprive an inmate of due process of law where the inmate 19 admitted the wrestling, was given notice of the conduct in 20 question and the evidence supporting it, and the petitioner did 21 not explain how his defense to the charges would have been 22 different had the notice specified “wrestling”). 23 Petitioner has not stated how his defense to the charge 24 would have been different had the charging allegation been 25 different. 26 participation in an overly familiar relationship, it is difficult 27 for the Court to envision what defense Petitioner would have 28 offered. In view of Petitioner’s documented admission of his To the extent that Petitioner asserts that he would not 10 1 have pled guilty to the appropriate charge, his argument concerns 2 not deprivation of a defense, but rather the nature of his plea 3 to the disciplinary charge. 4 However, it is established that the stringent requirements 5 for a knowing, intelligent, and voluntary guilty plea in a 6 criminal prosecution have not been extended to less formal 7 proceedings such as prison disciplinary proceedings. 8 Carlson, 884 F.2d at 1272. 9 Bostic v. Petitioner argues that the violation of § 3005 was more 10 serious than the originally charged violation. 11 not addressed this argument. 12 Respondent has Reference to the pertinent state regulations reflects that 13 insofar as disciplinary offenses are categorized as 14 administrative or serious, the less serious administrative 15 violations exclude situations involving a breach of, or hazard 16 to, facility security. 17 § 3314(a)(2)(B). 18 involves a breach of, or hazard to, facility security. 19 Regs., tit. 15, § 3315(a)(2)(B). 20 § 3400 nor the more general misconduct under § 3005 is 21 specifically listed in either § 3315 or § 3314, but it appears 22 that both violations involve a hazard to facility security when 23 predicated upon undue familiarity with staff. 24 offenses would be considered serious. 25 Cal. Code Regs., tit. 15, A violation is categorized as serious if it Cal. Code Neither undue familiarity under Thus, both With respect to the penalties for the two offenses, neither 26 offense is listed in Cal. Code Regs., tit. 15, § 3323, the 27 disciplinary credit forfeiture schedule. 28 was described only as a Division “F” offense, which merits a 11 Petitioner’s offense 1 credit forfeiture of up to thirty (30) days. 2 both violations meet the requirements of a Division F offense set 3 forth in § 3323(h), namely, both constitute serious rule 4 violations that meet the criteria of § 3315 (concerning serious 5 offenses), and neither constitutes a crime or is identified as 6 administrative in § 3314. It appears that 7 Thus, both offenses appear equally serious. 8 Petitioner’s allegations that he was deprived of a defense 9 are not supported by specific factual allegations. Petitioner 10 has not shown how the change in the section violated affected his 11 rights in the disciplinary proceeding. 12 failed to show that the procedure followed by the disciplinary 13 authorities was prejudicial. 14 authority, the Court notes that several courts have concluded 15 that to establish a denial of due process of law, prejudice is 16 generally required. 17 (1993); see also Tien v. Sisto, Civ. No. 2:07-cv-02436-VAP (HC), 18 2010 WL 1236308, at *4 (E.D.Cal. Mar. 26, 2010) (“While neither 19 the United States Supreme Court or the Ninth Circuit Court of 20 Appeals has spoken on the issue, numerous federal Courts of 21 Appeals, as well as courts in this district, have held that a 22 prisoner must show prejudice to state a habeas claim based on an 23 alleged due process violation in a disciplinary proceeding.”) 24 (citing Pilgrim v. Luther, 571 F.3d 201, 206 (2d Cir. 2009); 25 Howard v. United States Bureau of Prisons, 487 F.3d 808, 813 26 (10th Cir. 2007); Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir. 27 2003); Elkin v. Fauver, 969 F.2d 48, 53 (3d Cir. 1992); Poon v. 28 Carey, No. Civ. S-05-0801 JAM EFB P, 2008 WL 5381964, at *5 Petitioner has thus In the absence of controlling See, Brecht v. Abrahamson, 507 U.S. 619, 637 12 1 (E.D.Cal. Dec. 22, 2008); Gonzalez v. Clark, No. 1:07-CV-0220 AWI 2 JMD HC, 2008 WL 4601495, at *4 (E.D.Cal. Oct. 15, 2008)). 3 Here, Petitioner has not shown how his ability to present a 4 defense was impaired or affected. 5 alleged specific facts reflecting that the change in the specific 6 offense had a prejudicial effect on his ability to present a 7 defense, Petitioner has not alleged a due process claim 8 warranting relief. 9 Because Petitioner has not In summary, the record reflects that Petitioner received 10 timely notice of the factual basis for the charge sufficient to 11 marshal the facts and clarify the charges. 12 written statement by the fact finders as to the evidence relied 13 on and reasons for the disciplinary action. 14 opportunity to call witnesses and present documentary evidence in 15 his defense, and he was given the assistance of an investigating 16 employee. Petitioner received a Further, he had an 17 A petition for habeas corpus should not be dismissed without 18 leave to amend unless it appears that no tenable claim for relief 19 can be pleaded were such leave granted. 20 F.2d 13, 14 (9th Cir. 1971). 21 afforded Petitioner in connection with the hearing, and 22 considering Petitioner’s admission that he had engaged in the 23 proscribed conduct, it does not appear that it would be possible 24 for Petitioner to state a tenable due process claim if leave to 25 amend were granted. 26 Jarvis v. Nelson, 440 Here, in view of the safeguards Accordingly, insofar as Petitioner predicated his due 27 process claim on the absence of notice and associated procedural 28 safeguards, it will be recommended that the petition be dismissed 13 1 without leave to amend. 2 C. 3 4 5 Whether Some Evidence Supported the Findings Petitioner argues that the finding of unsuitability was not supported by some evidence. In determining whether some evidence of the violation 6 supported the finding, the Court does not make its own assessment 7 of the credibility of witnesses or re-weigh the evidence; 8 however, the Court must ascertain that the evidence has some 9 indicia of reliability and, even if meager, “not so devoid of 10 evidence that the findings of the disciplinary board were without 11 support or otherwise arbitrary.” 12 704-05 (9th Cir. 1987) (quoting Superintendent v. Hill, 472 U.S. 13 445, 457 (1985)). 14 found that the Hill standard was not satisfied where the only 15 evidence implicating the inmate was another inmate’s statement 16 that was related to prison officials through a confidential 17 informant who had no first-hand knowledge of any relevant 18 statements or actions by the inmate being disciplined and whose 19 polygraph results were inconclusive. 20 evaluated and found to constitute “some evidence” supportive of 21 various findings includes the report of a prison guard who saw 22 several inmates fleeing an area after an assault on another 23 inmate when no other inmates were in the area, Superintendent v. 24 Hill, 472 U.S. 456-57; the statement of a guard that the inmate 25 had admitted a theft to supplement his income, coupled with 26 corroborating evidence, Bostic v. Carlson, 884 F.2d 1267, 1270 27 (9th Cir. 1989); an inmate’s admission and corroborating, 28 circumstantial evidence, Crane v. Evans, 2009 WL 148273 (N.D.Cal. Cato v. Rushen, 824 F.2d 703, In Cato v. Rushen, 824 F.2d at 705, the Court 14 In contrast, evidence 1 Feb. 2, 2009), *3; and an inmate’s admission of having engaged in 2 the violation plus an officer’s report of having heard a 3 recording of the offending conversation, Dawson v. Norwood, 2010 4 WL 761226, *1 (C.D.Cal. March 1, 2010). 5 Here, the violation was supported by Petitioner’s undisputed 6 admission that he was involved in an unduly familiar relationship 7 with a staff member. 8 failure to request witnesses, make a statement in his defense, or 9 present any other evidence was consistent with, and corroborated, 10 11 Further, Petitioner’s guilty plea and his admission. The Court concludes that the finding of the disciplinary 12 authorities was supported by some evidence. 13 not stated a due process claim that would entitle him to relief. 14 Thus, Petitioner has Further, in light of the fact that the documentary record of 15 the disciplinary proceedings is undisputed, Petitioner could not 16 state a tenable due process claim if leave to amend were granted. 17 Accordingly, it will be recommended that Petitioner’s due 18 process claim predicated upon the absence of some evidence to 19 support the finding be dismissed without leave to amend. 20 21 D. State Law Petitioner alleges that under state regulations, he was 22 entitled to a new rules violation report and hearing when the 23 charge was changed. 24 Federal habeas relief is available to state prisoners only 25 to correct violations of the United States Constitution, federal 26 laws, or treaties of the United States. 27 Federal habeas relief is not available to retry a state issue 28 that does not rise to the level of a federal constitutional 15 28 U.S.C. § 2254(a). 1 violation. 2 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). 3 errors in the application of state law are not cognizable in 4 federal habeas corpus. 5 Cir. 2002) (an ex post facto claim challenging state court’s 6 discretionary decision concerning application of state sentencing 7 law presented only state law issues and was not cognizable in a 8 proceeding pursuant to 28 U.S.C. § 2254); Langford v. Day, 110 9 F.3d 1380, 1389 (9th Cir. 1996). Wilson v. Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 Alleged Souch v. Schiavo, 289 F.3d 616, 623 (9th 10 Thus, to the extent that Petitioner’s due process claim 11 relies on state law, it should be dismissed without leave to 12 amend. 13 E. 14 State Court Decisions Because Petitioner has not established a violation by the 15 prison authorities of his rights under the Fourteenth Amendment, 16 the decisions of the state courts upholding the prison’s decision 17 could not have resulted in either 1) a decision that was contrary 18 to, or involved an unreasonable application of, clearly 19 established federal law, as determined by the Supreme Court of 20 the United States; or 2) a decision that was based on an 21 unreasonable determination of the facts in light of the evidence 22 presented in the state court proceedings. 23 failed to state facts concerning the state court decisions that 24 would entitle him to relief. See, 28 U.S.C. § 2254(d). Thus, Petitioner has 25 Therefore, Petitioner’s due process claim with respect to 26 the state court decisions should likewise be dismissed without 27 leave to amend. 28 /// 16 1 IV. 2 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 3 appealability, an appeal may not be taken to the Court of Appeals 4 from the final order in a habeas proceeding in which the 5 detention complained of arises out of process issued by a state 6 court. 7 U.S. 322, 336 (2003). 8 only if the applicant makes a substantial showing of the denial 9 of a constitutional right. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). Under this standard, a 10 petitioner must show that reasonable jurists could debate whether 11 the petition should have been resolved in a different manner or 12 that the issues presented were adequate to deserve encouragement 13 to proceed further. 14 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 15 certificate should issue if the Petitioner shows that jurists of 16 reason would find it debatable whether the petition states a 17 valid claim of the denial of a constitutional right and that 18 jurists of reason would find it debatable whether the district 19 court was correct in any procedural ruling. 20 529 U.S. 473, 483-84 (2000). 21 Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 22 the claims in the habeas petition, generally assesses their 23 merits, and determines whether the resolution was debatable among 24 jurists of reason or wrong. 25 applicant to show more than an absence of frivolity or the 26 existence of mere good faith; however, it is not necessary for an 27 applicant to show that the appeal will succeed. 28 Cockrell, 537 U.S. at 338. Id. 17 It is necessary for an Miller-El v. 1 A district court must issue or deny a certificate of 2 appealability when it enters a final order adverse to the 3 applicant. 4 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 5 debate whether the petition should have been resolved in a 6 different manner. 7 of the denial of a constitutional right. 8 9 Petitioner has not made a substantial showing Accordingly, it will be recommended that the Court decline to issue a certificate of appealability. 10 V. 11 In summary, Petitioner has failed to allege specific facts Recommendations 12 showing a violation of his right to due process of law guaranteed 13 by the Fourteenth Amendment that would entitle him to habeas 14 relief. 15 could state a tenable due process claim, it will be recommended 16 that the Respondent’s motion to dismiss the petition be granted, 17 and the petition be dismissed without leave to amend. Further, because it does not appear that Petitioner 18 Accordingly, it is RECOMMENDED that: 19 1) Respondent’s motion to dismiss the petition be GRANTED; 2) The petition be DISMISSED without leave to amend for 20 21 and 22 failure to state facts entitling the petitioner to habeas corpus 23 relief; and 24 25 26 27 28 3) The Court DECLINE to issue a certificate of appealability; and 4) The Clerk be DIRECTED to close the action because an order of dismissal would terminate the proceeding. These findings and recommendations are submitted to the 18 1 United States District Court Judge assigned to the case, pursuant 2 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 3 the Local Rules of Practice for the United States District Court, 4 Eastern District of California. 5 being served with a copy, any party may file written objections 6 with the Court and serve a copy on all parties. 7 should be captioned “Objections to Magistrate Judge’s Findings 8 and Recommendations.” 9 and filed within fourteen (14) days (plus three (3) days if Within thirty (30) days after Such a document Replies to the objections shall be served 10 served by mail) after service of the objections. 11 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 12 636 (b)(1)(C). 13 objections within the specified time may waive the right to 14 appeal the District Court’s order. 15 1153 (9th Cir. 1991). The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 16 17 IT IS SO ORDERED. 18 Dated: icido3 June 24, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 19
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