-SKO (HC) Lopez v. Yates, No. 1:2011cv00366 - Document 5 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition without Leave to Amend for Failure to State Cognizable Claims; FINDING and RECOMMENDATIONS to Decline to Issue a Certificate of Appealability, signed by Magistrate Judge Sheila K. Oberto on 3/18/11. Referred to Judge O'Neill. (Verduzco, M)

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-SKO (HC) Lopez v. Yates Doc. 5 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 EMILIANO LOPEZ, 9 Petitioner, 10 11 12 v. JAMES A. YATES, 13 Respondent. 14 ) ) ) ) ) ) ) ) ) ) ) ) 1:11-00366-LJO-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE COGNIZABLE CLAIMS (Doc. 1) FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY OBJECTIONS DEADLINE: THIRTY (30) DAYS 15 16 Petitioner is a state prisoner proceeding pro se and in 17 forma pauperis with a petition for writ of habeas corpus pursuant 18 to 28 U.S.C. § 2254. 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 20 Rules 302 and 304. 21 which was filed on March 3, 2011. The matter has been referred to the Pending before the Court is the petition, 22 I. 23 Petitioner, an inmate of Kern Valley State Prison (KVSP) 24 serving a sentence of three to fifteen years, challenges a prison 25 disciplinary finding made at the prison on February 1, 2008, that 26 Petitioner resisted staff in January 2008 in violation of Cal. 27 Code Regs., tit. 15, §3005(c), which resulted in a forfeiture of 28 thirty days of credit. Jurisdiction (Pet. 1, 42.) 1 Dockets.Justia.com 1 Because the petition was filed after April 24, 1996, the 2 effective date of the Antiterrorism and Effective Death Penalty 3 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 4 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 5 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 6 Lindh A district court may entertain a petition for a writ of 7 habeas corpus by a person in custody pursuant to the judgment of 8 a state court only on the ground that the custody is in violation 9 of the Constitution, laws, or treaties of the United States. 28 10 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 11 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 12 16 (2010) (per curiam). 13 Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000). 28 U.S.C. §§ 2254(a), 2241(c)(3); 14 Plaintiff claims that in the course of the proceedings 15 resulting in the disciplinary finding, he suffered violations of 16 his Fourteenth Amendment right to due process of law as well as 17 his Eighth and Fourteenth Amendment right not to suffer cruel and 18 unusual punishment. 19 alleged, the Court has subject matter jurisdiction over the 20 instant petition. 21 Because violations of the Constitution are Further, Petitioner names as Respondent James A. Yates, 22 warden of PVSP and a person who has custody of the Petitioner 23 within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules 24 Governing § 2254 Cases in the United States District Courts 25 (Habeas Rules). 26 F.3d 359, 360 (9th Cir. 1994). 27 28 See, Stanley v. California Supreme Court, 21 Accordingly, this Court has jurisdiction over this action and over Respondent Yates. 2 1 II. 2 Habeas Rule 4 requires the Court to make a preliminary Screening the Petition 3 review of each petition for writ of habeas corpus. The Court must 4 summarily dismiss a petition "[i]f it plainly appears from the 5 petition and any attached exhibits that the petitioner is not 6 entitled to relief in the district court....” Habeas Rule 4; 7 O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also 8 Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). 9 2(c) requires that a petition 1) specify all grounds of relief Habeas Rule 10 available to the Petitioner; 2) state the facts supporting each 11 ground; and 3) state the relief requested. 12 not sufficient; rather, the petition must state facts that point 13 to a real possibility of constitutional error. 14 Committee Notes, 1976 Adoption; O’Bremski v. Maass, 915 F.2d at 15 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). 16 Allegations in a petition that are vague, conclusory, or palpably 17 incredible are subject to summary dismissal. 18 Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 19 Notice pleading is Rule 4, Advisory Hendricks v. Further, the Court may dismiss a petition for writ of habeas 20 corpus either on its own motion under Habeas Rule 4, pursuant to 21 the respondent's motion to dismiss, or after an answer to the 22 petition has been filed. 23 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 24 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 25 Petitioner raises the following claims in the petition: 26 1) the failure of the disciplinary hearing officer to permit 27 Petitioner to call and confront witnesses and to present 28 documentary evidence violated Petitioner’s right to due process 3 1 of law; 2) Officer Hamner’s falsification of evidence to make it 2 appear that Petitioner committed a rules violation violated 3 Petitioner’s right to be free from cruel and unusual punishment; 4 and 3) the failure of prison authorities to process Petitioner’s 5 appeal and complaint against the prison guard denied Petitioner 6 access to the courts and Petitioner’s Fourteenth Amendment right 7 to due process of law. 8 A review of the petition demonstrates that Petitioner has 9 included apparently complete documentation of the challenged 10 disciplinary proceedings and Petitioner’s exhaustion of the 11 administrative remedies available to Petitioner within the CDCR. 12 (Pet. 1-63.) 13 Petitioner claimed in the disciplinary proceedings and 14 alleges in the petition that he did not interfere with staff, and 15 that staff used excessive force against him in the pertinent 16 encounter. 17 prohibited conduct, there do not appear to be any disputed 18 material facts with respect to the disciplinary proceedings or 19 the evidence underlying the finding that Petitioner interfered 20 with staff. 21 Other than Petitioner’s denial that he engaged in the Accordingly, the Court will proceed to determine whether 22 Petitioner’s allegations state a cognizable claim for habeas 23 corpus relief. 24 III. 25 In a rules violation report dated January 6, 2008, Factual Allegations 26 Correctional Officer T. Hamner reported that after taking a 27 shower on January 1, 2008, Petitioner returned to his cell but 28 left the cell door open, as he frequently did. 4 Hamner ordered 1 Petitioner to close his door three times without any result. 2 Because another correctional officer was at a distance, Hamner 3 approached the cell to close the cell door. 4 When Hamner reached a stairwell, Petitioner walked toward 5 it, ignored another direction from Hamner to lock up, and quickly 6 descended half the staircase, meeting Hamner and blocking 7 Hamner’s safe progress upwards. 8 feet from the officer, Petitioner ignored another order from 9 Hamner to return to his cell and get off the stairs. From a distance of about two Hamner 10 grabbed Petitioner’s right bicep, turned Petitioner to his left 11 so he was facing away from the officer, and used both hands to 12 control Petitioner as Hamner proceeded down the stairs. 13 Petitioner resisted by leaning back and using his weight to push 14 toward the officer. 15 (Pet. 42.) Petitioner surrendered one hand in response to an order to 16 submit to handcuffs but then resisted, causing Officer A. 17 Martinez in the control booth to activate a personal alarm. 18 Hamner put his right hand around Petitioner’s right shoulder, 19 spinned Petitioner to his right, and placed him on his stomach 20 while maintaining control of his left hand. 21 placed Petitioner in handcuffs. 22 Hamner ultimately (Pet. 46.) A signed report reflects that Petitioner was given a copy of 23 the rules violation report (CDC 115) on January 10, 2008. 24 43.) 25 (Pet. Petitioner pled not guilty. (Pet. 42.) A staff assistant was not assigned; however, Petitioner was 26 assigned an investigative employee (IE) – Correctional Officer D. 27 Cardenas. 28 interviewed Petitioner, who stated that he did not object to Cardenas reported that on January 10, 2008, he 5 1 Cardenas’ serving as his IE. 2 gave him three questions to ask witnesses (inquiries concerning 3 whether Petitioner had resisted, how Officer Hamner handled the 4 situation, and whether Petitioner appeared hostile and 5 disrespectful). (Pet. 46.) 6 provide the IE with the names, CDC numbers, and housing of his 7 witnesses; therefore, Cardenas was unable to question anyone. 8 (Pet. 46.) 9 Cardenas that he did not resist the officer. Cardenas stated that Petitioner However, Petitioner was unable to Cardenas further reported that Petitioner told There were no 10 statements of inmate or staff witnesses. 11 request any evidence, information, or witnesses for the hearing, 12 and he did not request that the reporting employee or IE appear. 13 (Pet. 44.) 14 before the hearing along with a crime/incident report and a 15 medical report of injury. 16 Petitioner did not A copy of Cardenas’ report was given to Petitioner (Pet. 44-45.) The signed report of Senior Hearing Officer (SHO) D. B. 17 Petrick reflects that on February 1, 2008, Petrick held the 18 adjudication hearing, which Petitioner attended. 19 SHO Petrick reported that Petitioner did not request any 20 witnesses on the CDC 115A, IE report, or during the hearing; 21 further, the SHO did not require the presence of any witnesses. 22 (Pet. 45.) 23 information during the hearing. (Pet. 47.) 24 (Pet. 45.) Petitioner did not request any additional evidence or Petitioner submitted a written statement at the hearing 25 which was copied into the hearing officer’s report. 26 Petitioner explained that he had approached the podium area by 27 the stairs to speak to Hamner, who Petitioner thought had via 28 hand gestures authorized Petitioner’s movement. 6 (Pet. 47.) Hamner suddenly 1 grabbed Petitioner, pulled him down the stairs, shoved him into a 2 locker, slammed him to the ground without warning, and cuffed 3 him. (Pet. 47.) 4 The SHO found Petitioner guilty of resisting staff by a 5 preponderance of evidence consisting of 1) Officer Hamner’s rules 6 violation report; 2) the report of Officer Martinez, who on the 7 day in question activated an alarm at Hamner’s request, and 8 observed Hamner point to Petitioner to go back up the stairs to 9 his cell, Petitioner’s subsequent refusal, Officer Hamner’s 10 efforts to cuff Petitioner by grabbing Petitioner’s left arm and 11 ordering him to cuff up, Petitioner’s refusal, Officer Hamner’s 12 direction to Martinez to activate the alarm, and Petitioner’s 13 subsequent resistance to handcuffing (pet. 48, 56); and 3) the 14 report of Officer Espino, who responded to the alarm activated by 15 Officer Martinez, saw Petitioner on the ground, and escorted 16 Petitioner to a holding cell for medical evaluation and interview 17 (pet. 48, 54). 18 that in his written statement, Petitioner admitted to not closing 19 his cell door and meeting Hamner on the stairs, but claimed to 20 have submitted to Hamner. 21 a medical report of medical staff reflecting that upon 22 examination of Petitioner after the incident, no injuries were 23 observed. 24 (Pet. 48-49.) The SHO also relied on the fact (Pet. 49.) The SHO further relied on (Pet. 49, 57.) Petitioner was given a copy of the hearing officer’s report 25 and findings (CDC-115C) on February 13, 2008. 26 /// 27 /// 28 /// 7 (Pet. 47.) 1 IV. 2 With respect to prison disciplinary proceedings, procedural Legal Standards 3 due process of law requires that where the state has made good 4 time subject to forfeiture only for serious misbehavior, 5 prisoners subject to a loss of good-time credits must be given 6 advance written notice of the claimed violation, a right to call 7 witnesses and present documentary evidence where it would not be 8 unduly hazardous to institutional safety or correctional goals, 9 and a written statement of the finder of fact as to the evidence 10 relied upon and the reasons for disciplinary action taken. 11 v. McDonnell, 418 U.S. 539, 563-64 (1974). Confrontation, cross- 12 examination, and counsel are not required. Wolff, 418 U.S. at 13 568-70. Wolff 14 Further, where good-time credits are a protected liberty 15 interest, the decision to revoke credits must be supported by 16 some evidence in the record. 17 445, 454 (1985). 18 19 20 21 22 23 24 25 26 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). 27 Superintendent v. Hill, 472 U.S. at 455-56. 28 does not require that the evidence logically preclude any 8 The Constitution 1 conclusion other than the conclusion reached by the disciplinary 2 board; rather, there need only be some evidence in order to 3 ensure that there was some basis in fact for the decision. 4 Superintendent v. Hill, 472 U.S. at 457. 5 6 V. Analysis of the Due Process Claims A. Some Evidence to Support the Finding 7 With respect to the requirement that some evidence support 8 the finding that Petitioner resisted staff, this Court does not 9 make its own assessment of the credibility of witnesses or re- 10 weigh the evidence. 11 evidence has some indicia of reliability and, even if meager, 12 “not so devoid of evidence that the findings of the disciplinary 13 board were without support or otherwise arbitrary.” 14 Rushen, 824 F.2d 703, 704-05 (9th Cir. 1987) (quoting 15 Superintendent v. Hill, 472 U.S. 445, 457 (1985)). 16 The Court must ascertain, however, that the Cato v. In Cato v. Rushen, 824 F.2d at 705, the Court found that the 17 Hill standard was not satisfied where the only evidence 18 implicating the inmate was another inmate’s statement that was 19 related to prison officials through a confidential informant who 20 had no first-hand knowledge of any relevant statements or actions 21 by the inmate being disciplined, and whose polygraph results were 22 inconclusive. 23 constitute “some evidence” supportive of various findings has 24 included the report of a prison guard who saw several inmates 25 fleeing an area after an assault on another inmate when no other 26 inmates were in the area, Superintendent v. Hill, 472 U.S. 456- 27 57; the statement of a guard that the inmate had admitted a theft 28 to supplement his income, coupled with corroborating evidence, In contrast, evidence evaluated and found to 9 1 Bostic v. Carlson, 884 F.2d 1267, 1270 (9th Cir. 1989); an 2 inmate’s admission and corroborating, circumstantial evidence, 3 Crane v. Evans, 2009 WL 148273, *3 (N.D.Cal. Feb. 2, 2009); and 4 an inmate’s admission of having engaged in the violation plus an 5 officer’s report of having heard a recording of the offending 6 conversation, Dawson v. Norwood, 2010 WL 761226, *1 (C.D.Cal. 7 March 1, 2010). 8 9 The Court has reviewed the allegations of the petition and the documentation provided by Petitioner in support of the 10 petition and concludes that the finding of resistance to staff 11 was supported by some evidence, including Officer Hamner’s report 12 based on personal knowledge, the IE report, the confirming 13 reports of Martinez, Espino, and the medical staff, and portions 14 of Petitioner’s own written statement. 15 Accordingly, with respect to his claim concerning a lack of 16 some evidence to support the disciplinary finding, Petitioner has 17 failed to allege facts that point to a due process violation. 18 Thus, the claim must be dismissed. 19 A petition for habeas corpus should not be dismissed without 20 leave to amend unless it appears that no tenable claim for relief 21 can be pleaded were such leave granted. 22 F.2d 13, 14 (9th Cir. 1971). 23 Jarvis v. Nelson, 440 Because full documentation of the disciplinary proceedings 24 has been submitted to the Court, it does not appear that 25 Petitioner could state a tenable due process claim if leave to 26 amend were granted. 27 due process claim concerning the absence of supporting evidence 28 be dismissed without leave to amend. Accordingly, it will be recommended that the 10 1 B. Failure to Permit Testimony of Witnesses and Documentary Evidence 2 Federal habeas relief is available to state prisoners only 3 to correct violations of the United States Constitution, federal 4 laws, or treaties of the United States. 28 U.S.C. § 2254(a). 5 Federal habeas relief is not available to retry a state issue 6 that does not rise to the level of a federal constitutional 7 violation. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). 8 Alleged errors in the application of state law are not cognizable 9 in federal habeas corpus. Souch v. Schiavo, 289 F.3d 616, 623 10 (9th Cir. 2002). 11 To the extent that Petitioner claims an absence of 12 compliance with California’s regulatory laws governing prison 13 disciplinary procedures, Petitioner’s claims relating to evidence 14 and witnesses at the disciplinary hearing are premised upon state 15 law and therefore would not entitle Petitioner to federal habeas 16 corpus relief. Thus, such claims are not cognizable and should 17 be dismissed without leave to amend. 18 With respect to a federal claim concerning calling witnesses 19 and putting on documentary evidence, Petitioner has a right to do 20 so where it would not be unduly hazardous to institutional safety 21 or correctional goals. Wolff v. McDonnell, 418 U.S. 539, 563-64 22 (1974). However, confrontation and cross-examination are not 23 required. Wolff, 418 U.S. at 568-70. 24 With respect to being prohibited from calling witnesses, the 25 investigative employee reported that although Petitioner gave him 26 questions to ask the witnesses, Petitioner did not have the 27 names, identification numbers, or housing information of the 28 11 1 witnesses. 2 additional information that would help identify the persons 3 claimed to be witnesses. 4 request any other evidence or information or give any indication 5 that additional evidence was required before a hearing should 6 occur. 7 the investigation, Petitioner objected to the investigation, 8 offered any information that would have made any further 9 investigation possible, or otherwise facilitated discovery of any 10 It does not appear that Petitioner gave the IE any (Pet. 44.) (Pet. 42, 46.) Petitioner did not Thus, it does not appear that at the time of further information. 11 Further, part C of the rules violation report in which SHO 12 Petrick reported the hearing held on February 1, 2008, reflects 13 that Petitioner did not request any witnesses on the CDC 115A, 14 the IE report, or during the hearing. 15 request any additional evidence or information during the 16 hearing. 17 written statement. 18 that Petitioner complained concerning the investigation, sought 19 any further investigation, or set forth any data regarding the 20 alleged witnesses. 21 (Pet. 47.) (Pet. 45.) He did not Petitioner was allowed to submit a detailed (Pet. 47.) However, there is no indication On an inmate appeal form submitted by Petitioner on February 22 21, 2008, several weeks after the hearing was held, Petitioner 23 stated that after his time in administrative segregation and a 24 move to a different building, he was able during normal 25 programming to get the names and numbers of witnesses. 26 Petitioner set forth on the appeal form five names of persons who 27 appear to be prisoners because they have prison identification 28 numbers. (Pet. 32.) He also set forth the names of correctional 12 1 2 officers Hamner and Martinez. However, Petitioner did not provide any information 3 regarding the precise testimony of the witnesses. 4 alleges generally that the witnesses would have been able to 5 testify that Petitioner was the one assaulted by the reporting 6 employee, and that Petitioner remained passive throughout the 7 incident. 8 events were observed, where the alleged witnesses were when they 9 allegedly observed some of the events, or what the actual (Pet. 6-7.) Petitioner It is unclear what part of the pertinent 10 observations were. 11 Martinez as witnesses on his appeal form, the mere listing of the 12 witnesses does not indicate what the testimony would be or 13 otherwise provide an adequate substitute for such information. 14 Such generalized allegations are not sufficient to show a 15 violation of due process of law because notice pleading is not 16 sufficient; rather, the petition must state facts that point to a 17 real possibility of constitutional error. 18 Advisory Committee Notes, 1976 Adoption; O’Bremski v. Maass, 915 19 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 20 (1977)). 21 or palpably incredible are subject to summary dismissal. 22 Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 23 Although Petitioner listed Hamner and Habeas Rule 4, Allegations in a petition that are vague, conclusory, Here, Petitioner has not shown that any of the witnesses 24 would have presented any specific, helpful or exculpatory 25 evidence. 26 denial of due process. 27 637 (1993) (determining that habeas relief is warranted when an 28 error resulted in actual prejudice, or had a substantial and Therefore, Petitioner has not shown any prejudicial Cf., Brecht v. Abrahamson, 507 U.S. 619, 13 1 injurious effect or influence in determining the jury’s verdict); 2 Schenck v. Edwards, 921 F.Supp. 679, 687-88 (E.D.Wash. 1996). 3 With respect to documentary evidence, Petitioner argues that 4 there were conflicting statements in Officer Hamner’s 5 disciplinary report (CDC-115) and a placement notice from J. E. 6 Daley issued in connection with petitioner’s housing transfer 7 that was precipitated by the incident (CDC 114-D). 8 9 A review of the housing placement notice (pet. 18) reflects a version of the events that is generally and substantially 10 consistent with Hamner’s rules violation report. 11 reported that the circumstances requiring placement in 12 administrative segregation involved Petitioner’s failure to 13 return to his cell and lock up, and the report chronicled Officer 14 Hamner’s instructions to Petitioner to return to his cell, 15 Petitioner’s attempt to block Hamner as he was in route to 16 Petitioner’s location, the need for Hamner to grab Petitioner’s 17 left arm, Petitioner’s apparent resistance by spinning around, 18 Hamner’s restraining Petitioner and escorting him down the stairs 19 to the podium, and Petitioner’s being forced to the ground and 20 being cuffed. 21 Lt. J. E. Daley (Pet. 18.) Because the information in the placement notice was 22 essentially consistent with the correctional staff’s observations 23 of the pertinent events, any failure to produce such evidence at 24 the hearing was not harmful to Petitioner. 25 Petitioner also contends that his own statement and 26 allegations of fact establish that he did not resist Hamner, and 27 the officer used excessive force. 28 arguments are essentially an invitation to this Court to re-weigh 14 However, Petitioner’s 1 the evidence, which is not within the scope of this Court’s 2 review. 3 The Court concludes that Petitioner has failed to state 4 facts showing that he is entitled to habeas relief. 5 claims concerning witnesses and documentary evidence are not 6 cognizable in a proceeding pursuant to 28 U.S.C. § 2254. 7 Petitioner’s Further, because full documentation of the disciplinary 8 proceedings has been provided to the Court, it does not appear 9 that Petitioner could amend the petition to state facts that 10 would entitle him to relief. 11 dismissed without leave to amend. Therefore, the claims should be 12 VI. 13 Petitioner argues that Officer Hamner falsified evidence to Cruel and Unusual Punishment 14 make it appear that Petitioner had committed a rule violation. 15 Petitioner argues that the allegations are false as shown by the 16 allegedly contradictory statements made in the housing placement 17 notice. 18 free from cruel and unusual punishment because it will result in 19 years of imprisonment by the Board of Parole Hearings at an 20 unspecified time or place. 21 Petitioner alleges that this violates his right to be (Pet. 8-9.) It appears that the thirty-day loss of credit is the only 22 consequence of the disciplinary finding alleged by Petitioner 23 because Petitioner’s placement in administrative segregation was 24 followed by an immediate determination that Petitioner was 25 cleared to go back to the general population. (Pet. 8.) 26 It is established that there is no right under the Federal 27 Constitution to be conditionally released before the expiration 28 of a valid sentence, and the states are under no duty to offer 15 1 parole to their prisoners. 2 S.Ct. 859, 862 (2011). 3 disproportionate” to the crime for which a defendant is convicted 4 may violate the Eighth Amendment. 5 63, 72 (2003); Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) 6 (Kennedy, J., concurring); Rummel v. Estelle, 445 U.S. 263, 271 7 (1980). 8 Amendment prohibits only sentences that are extreme and grossly 9 disproportionate to the crime. Swarthout v. Cooke, 562 U.S. –, 131 A criminal sentence that is “grossly Lockyer v. Andrade, 538 U.S. Outside of the capital punishment context, the Eighth United States v. Bland, 961 F.2d 10 123, 129 (9th Cir. 1992) (quoting Harmelin v. Michigan, 501 U.S. 11 957, 1001, (1991) (Kennedy, J., concurring)). 12 “exceedingly rare” and occur in only “extreme” cases. 13 Andrade, 538 U.S. at 72-73; Rummel, 445 U.S. at 272. 14 a sentence does not exceed the statutory maximum, it will not be 15 considered cruel and unusual punishment under the Eighth 16 Amendment. 17 (9th Cir.1998); United States v. McDougherty, 920 F.2d 569, 576 18 (9th Cir. 1990). Such instances are Lockyer v. So long as See United States v. Mejia-Mesa, 153 F.3d 925, 930 19 Here, Petitioner has not alleged the nature of his 20 commitment offense; it is not even clear whether Petitioner’s 21 sentence is determinate or indeterminate because the only 22 information given on the length of his sentence is “3 to 15 23 years.” 24 simply alleges that at some time in the future, he will spend 25 more time in prison due to the disciplinary finding. (Pet. 1.) Petitioner’s parole status is unclear; he 26 Petitioner thus has not alleged facts showing that any 27 disciplinary penalty, or any increased time spent in prison as a 28 result of his disciplinary offense, constitutes a grossly 16 1 disproportionate sentence. 2 pointing to a real possibility of Eighth and Fourteenth Amendment 3 error. 4 Petitioner has not alleged facts Further, considering the extreme facts that must be present 5 for an Eighth Amendment claim to be stated, it does not appear 6 that Petitioner could state a tenable claim of cruel and unusual 7 punishment under the Eighth and Fourteenth Amendments. 8 Petitioner’s claim should be dismissed without leave to amend. 9 10 VII. Thus, Failure to Process the Administrative Appeal Petitioner argues that the California Department of 11 Corrections and Rehabilitation (CDCR) erroneously failed to 12 respond to his administrative appeal or staff complaint against 13 Officer Hamner for cruelty, thereby violating his right to due 14 process of law. Petitioner also argues that state statutes and 15 regulations were ignored by the prison authorities, and the state 16 court decisions denying relief were incorrect and in violation of 17 his right to due process of law. 18 (Pet. 10-11.) Federal habeas relief is not available in proceedings 19 pursuant to 28 U.S.C. § 2254 to retry a state issue that does not 20 rise to the level of a federal constitutional violation. 21 v. Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v. 22 McGuire, 502 U.S. 62, 67-68 (1991). 23 application of state law are not cognizable in federal habeas 24 corpus. Wilson Alleged errors in the Souch v. Schiavo, 289 F.3d 616, 623 (9th Cir. 2002). 25 Thus, it is established that federal habeas relief is not 26 available to redress procedural errors in the state collateral 27 review process. 28 1998) (claim concerning the alleged bias of a judge in a second Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 17 1 post-conviction proceeding for relief); 2 F.3d 755, 763 (9th Cir. 1996), vacated on other grounds, Carriger 3 v. Stewart, 132 F.3d 463 (1997) (Brady claim in post-conviction 4 proceedings); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 5 1989) (claim that a state court’s delay in deciding a petition 6 for post-conviction relief violated due process rights). 7 Carriger v. Stewart, 95 The Court concludes that to the extent that Petitioner’s due 8 process claim is not duplicative of his previously analyzed 9 claims, Petitioner’s claim concerning the administrative appeal 10 fails to state a claim cognizable in a proceeding pursuant to 28 11 U.S.C. § 2254. 12 leave to amend. 13 Petitioner’s claim should be dismissed without Petitioner alleges denial of access to the courts and 14 excessive force in his third claim. 15 of the allegations are unclear and uncertain. 16 that Petitioner is alleging that he was denied access to the 17 courts and/or that Officer Hamner used excessive force against 18 him, and is, therefore, seeking relief for those allegations. 19 (Pet. 10-11.) These aspects It is possible A federal court may only grant a state prisoner’s petition 20 for writ of habeas corpus if the petitioner can show that "he is 21 in custody in violation of the Constitution or laws or treaties 22 of the United States." 23 petition is the correct method for a prisoner to challenge the 24 legality or duration of his confinement. 25 573, 574 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S. 26 475, 485 (1973)); Advisory Committee Notes to Habeas Rule 1, 1976 27 Adoption. 28 /// 28 U.S.C. § 2254(a). 18 A habeas corpus Badea v. Cox, 931 F.2d 1 In contrast, a civil rights action pursuant to 42 U.S.C. 2 § 1983 is the proper method for a prisoner to challenge the 3 conditions of that confinement. 4 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 5 574; Advisory Committee Notes to Habeas Rule 1, 1976 Adoption. McCarthy v. Bronson, 500 U.S. 6 To the extent that Petitioner complains of excessive force 7 or denial of access to the courts, Petitioner is complaining of 8 the conditions of confinement and not the legality or duration of 9 his confinement. Such claims are not cognizable in this 10 proceeding. 11 raise such claims in this proceeding, they must be dismissed 12 without leave to amend. 13 separate civil rights suit pursuant to 42 U.S.C. § 1983. 14 Accordingly, to the extent that Petitioner seeks to Petitioner may raise such claims in a In summary, Petitioner fails to state a claim cognizable in 15 a proceeding pursuant to 28 U.S.C. § 2254. 16 appear that Petitioner could state a cognizable claim if given 17 leave to amend. 18 19 Further, it does not Accordingly, it will be recommended that the petition be dismissed without leave to amend. 20 VIII. 21 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 22 appealability, an appeal may not be taken to the court of appeals 23 from the final order in a habeas proceeding in which the 24 detention complained of arises out of process issued by a state 25 court. 26 U.S. 322, 336 (2003). 27 only if the applicant makes a substantial showing of the denial 28 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). 19 Under this standard, a 1 petitioner must show that reasonable jurists could debate whether 2 the petition should have been resolved in a different manner or 3 that the issues presented were adequate to deserve encouragement 4 to proceed further. 5 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 6 certificate should issue if the Petitioner shows that jurists of 7 reason would find it debatable whether the petition states a 8 valid claim of the denial of a constitutional right and that 9 jurists of reason would find it debatable whether the district Miller-El v. Cockrell, 537 U.S. at 336 10 court was correct in any procedural ruling. 11 A 529 U.S. 473, 483-84 (2000). 12 Slack v. McDaniel, In determining this issue, a court conducts an overview of 13 the claims in the habeas petition, generally assesses their 14 merits, and determines whether the resolution was debatable among 15 jurists of reason or wrong. 16 applicant to show more than an absence of frivolity or the 17 existence of mere good faith; however, it is not necessary for an 18 applicant to show that the appeal will succeed. 19 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 20 A district court must issue or deny a certificate of 21 appealability when it enters a final order adverse to the 22 applicant. 23 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 24 debate whether the petition should have been resolved in a 25 different manner. 26 of the denial of a constitutional right. 27 should decline to issue a certificate of appealability. 28 /// Petitioner has not made a substantial showing 20 Accordingly, the Court 1 IX. 2 Accordingly, it is RECOMMENDED that: 3 1) 4 2) The Court DECLINE to issue a certificate of appealability; and 7 8 The petition be DISMISSED for failure to state a claim cognizable in a proceeding pursuant to 28 U.S.C. § 2254; and 5 6 Recommendations 3) The Clerk be DIRECTED to close the action because dismissal will terminate the case. 9 These findings and recommendations are submitted to the 10 United States District Court Judge assigned to the case, pursuant 11 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 12 the Local Rules of Practice for the United States District Court, 13 Eastern District of California. 14 being served with a copy, any party may file written objections 15 with the Court and serve a copy on all parties. 16 should be captioned “Objections to Magistrate Judge’s Findings 17 and Recommendations.” 18 and filed within fourteen (14) days (plus three (3) days if 19 served by mail) after service of the objections. 20 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 21 636 (b)(1)(C). 22 objections within the specified time may waive the right to 23 appeal the District Court’s order. 24 1153 (9th Cir. 1991). 25 IT IS SO ORDERED. 26 Dated: ie14hj Within thirty (30) days after Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file March 18, 2011 Martinez v. Ylst, 951 F.2d /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 27 28 21

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