-BAM (HC) Vallin v. Gonzales, No. 1:2010cv01621 - Document 23 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS recommending that Respondent's Motion to Dismiss be GRANTED; Petition to be DISMISSED without leave to amend; Court DECLINE to ISSUE CERTIFICATE OF APPEALABILITY; Clerk DIRECTED to Close the Case because DISMISSAL wi ll terminate the action in its entirety; re 1 Petition for Writ of Habeas Corpus, 21 MOTION to DISMISS filed by Fernando Gonzales ; referred to Judge O'Neill; Objections to F&R due by 2/6/2012, signed by Magistrate Judge Barbara A. McAuliffe on 01/01/2012. (Martin-Gill, S)
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-BAM (HC) Vallin v. Gonzales Doc. 23 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 JOSE LUIS VALLIN, 9 Petitioner, 10 v. 11 FERNANDO GONZALES, Warden, 12 Respondent. 13 14 15 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—01621-LJO-BAM-HC FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO DISMISS THE PETITION FOR FAILURE TO ALLEGE FACTS ENTITLING PETITIONER TO RELIEF (DOCS. 21, 1) FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND, DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE OBJECTIONS DEADLINE: THIRTY (30) DAYS 17 18 Petitioner is a state prisoner proceeding pro se and in 19 forma pauperis with a petition for writ of habeas corpus pursuant 20 to 28 U.S.C. § 2254. 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 22 Rules 302 and 304. 23 motion to dismiss the petition, which was served by mail on 24 Petitioner and filed on September 27, 2011. 25 file opposition or notice of non-opposition to the motion. The matter has been referred to the Pending before the Court is Respondent’s Petitioner did not 26 I. 27 Because the petition was filed after April 24, 1996, the 28 Proceeding by a Motion to Dismiss effective date of the Antiterrorism and Effective Death Penalty 1 Dockets.Justia.com 1 Act of 1996 (AEDPA), the AEDPA applies to the petition. 2 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 3 1484, 1499 (9th Cir. 1997). 4 Lindh v. Rule 4 of the Rules Governing Section 2254 Cases in the 5 United States District Courts (Habeas Rules) allows a district 6 court to dismiss a petition if it “plainly appears from the face 7 of the petition and any exhibits annexed to it that the 8 petitioner is not entitled to relief in the district court....” 9 The Ninth Circuit has allowed respondents to file motions to 10 dismiss pursuant to Rule 4 instead of answers if the motion to 11 dismiss attacks the pleadings by claiming that the petitioner has 12 failed to exhaust state remedies or has violated the state’s 13 procedural rules. 14 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 15 a petition for failure to exhaust state remedies); White v. 16 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to 17 review a motion to dismiss for state procedural default); Hillery 18 v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). 19 Thus, a respondent may file a motion to dismiss after the Court 20 orders the respondent to respond, and the Court should use Rule 4 21 standards to review a motion to dismiss filed before a formal 22 answer. 23 See, e.g., O’Bremski v. Maass, 915 F.2d 418, See, Hillery, 533 F. Supp. at 1194 & n.12. In this case, upon being directed to respond to the petition 24 by way of answer or motion, Respondent filed the motion to 25 dismiss on the ground that Petitioner had not stated facts that 26 would entitle him to relief in a proceeding pursuant to 28 U.S.C. 27 § 2254. 28 found in the pleadings and in copies of the official records of The material facts pertinent to the motion are to be 2 1 state prison and judicial proceedings which have been provided by 2 the parties, and as to which there is no significant factual 3 dispute. 4 Because Respondent's motion to dismiss is similar in 5 procedural standing to motions to dismiss on procedural grounds, 6 the Court will review Respondent’s motion to dismiss pursuant to 7 its authority under Rule 4. 8 II. 9 Petitioner, an inmate of the California Correctional Background 10 Institution at Techachapi who is serving a twenty-year sentence, 11 challenges his validation as an active gang member, which he 12 alleges has resulted in his no longer receiving time credits. 13 The Court’s screening process has resulted in there being only 14 one claim remaining in the petition, namely, that Petitioner 15 received an unfair validation hearing because he was unable to 16 attend an interview due to presence at another proceeding, which 17 violated Petitioner’s right to due process of law under the 18 Fourteenth Amendment. 19 (Pet. 4-5.) Although Petitioner alleges that he was unable to attend an 20 interview because he was engaged in another proceeding, 21 Respondent has submitted documentation that shows that on March 22 21, 2008, Petitioner was given twenty-four hours’ notification as 23 to the gang validation proceedings and disclosure of the source 24 items to be relied on in the validation process. 25 doc. 21, 6.) 26 interview and to refute the source items. 27 chronology specifically states: 28 (Mot., ex. 1, Petitioner was afforded the opportunity to The validation On 03-24-08, Vallin was afforded the opportunity 3 1 2 3 4 5 to interview and refute the source items. Vallin elected to provide a written response in the form of a 4 page single sided response to the source items. Vallin’s written response was reviewed and considered by the IGI1 and found that his claims have no merit and do not warrant further investigation. Vallin was assigned a Staff assistant for the purpose of Spanish to English translation for the initial notification and response portion of the validation process. 6 (Id.) The chronology further reflects that all the evidence 7 obtained in the investigation was forwarded to the OCS for 8 consideration and acceptance for the validation of Petitioner as 9 an associate of the Mexican Mafia prison gang. Id. 10 Included in the petition is a copy of a four-page “INMATE 11 VALIDATION STATEMENT,” in which Petitioner responded to the gang 12 validation information. (Pet., doc. 1, 21-24.) 13 It may be inferred from Petitioner’s filing habeas corpus 14 petitions in the state court that challenge the gang validation 15 determination that Petitioner received notice of the decision 16 that he had been validated. 17 III. Failure to State a Cognizable Due Process Claim 18 Respondent argues that Petitioner’s factual allegations and 19 documentation of the gang validation procedures reflect that 20 Petitioner received all the process that was due. 21 A. Legal Standards 22 1. Habeas Corpus Relief 23 A district court may entertain a petition for a writ of 24 habeas corpus by a person in custody pursuant to the judgment of 25 a state court only on the ground that the custody is in violation 26 27 28 1 “IGI” appears to refer to P. Covello, the Institutional Gang Investigator at Ironwood State Prison, where Petitioner was housed at the time of the validation proceedings. (Doc. 21, 6.) 4 1 of the Constitution, laws, or treaties of the United States. 2 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 3 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 4 16 (2010) (per curiam). 5 28 Further, in order to obtain habeas relief, a petitioner must 6 satisfy the requirements of 28 U.S.C. § 2254, which provides in 7 pertinent part: 8 9 10 (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim– 11 12 13 14 15 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 16 17 Clearly established federal law refers to the holdings, as 18 opposed to the dicta, of the decisions of the Supreme Court as of 19 the time of the relevant state court decision. 20 Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v. 21 Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 22 362, 412 (2000). 23 principles set forth by the Supreme Court at the pertinent time. 24 Lockyer v. Andrade, 538 U.S. at 71-72. Cullen v. It is thus the governing legal principle or 25 A state court’s decision contravenes clearly established 26 Supreme Court precedent if it reaches a legal conclusion opposite 27 to, or substantially different from, the Supreme Court's or 28 concludes differently on a materially indistinguishable set of 5 1 facts. 2 court unreasonably applies clearly established federal law if it 3 either 1) correctly identifies the governing rule but then 4 applies it to a new set of facts in a way that is objectively 5 unreasonable, or 2) extends or fails to extend a clearly 6 established legal principle to a new context in a way that is 7 objectively unreasonable. 8 1142 (9th Cir. 2002); see, Williams, 529 U.S. at 407. 9 application of clearly established federal law is unreasonable Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state Hernandez v. Small, 282 F.3d 1132, 10 only if it is objectively unreasonable; an incorrect or 11 inaccurate application is not necessarily unreasonable. 12 An Williams, 529 U.S. at 410. 13 14 2. Due Process in Gang Validation Procedures Indefinite placement in a restrictive “supermax” facility, 15 where inmates are not eligible for parole consideration, imposes 16 an “atypical and significant hardship within the correctional 17 context.” 18 Wilkinson v. Austin, 545 U.S. 209, 223-25 (2005). However, an inmate’s interest in avoiding erroneous 19 placement in administrative segregation is less than the interest 20 in being free from confinement at all, so the procedural 21 protections are less. 22 Placement in administrative segregation draws on the experience 23 of prison administrators, and the state’s interest implicates the 24 safety of other inmates and prison personnel. 25 informal, non-adversary procedures set forth in Greenholtz v. 26 Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1 (1979) 27 (consideration of parole release) and Hewitt v. Helms, 459 U.S. 28 460 (1983) (consideration of transfer to administrative Wilkinson v. Austin, 545 U.S. at 225. 6 Thus, the 1 segregation) are appropriate. 2 228-29. 3 for the placement, 2) an opportunity to be heard, and 3) notice 4 of any adverse decision. 5 6 Wilkinson v. Austin, 545 U.S. at The process due thus includes 1) notice of the reasons B. Id. at 228-29. Analysis Here, in order for Petitioner to obtain habeas relief on his 7 one remaining claim, he must show that the decision of the state 8 court upholding in turn the decision of the prison administration 9 to validate Petitioner as a gang member was either contrary to, 10 or an unreasonable application of, clearly established Supreme 11 Court precedent. 12 However, the decisions of the Supreme Court do not require 13 that a petitioner be present at an interview concerning his gang 14 validation; rather, it is sufficient if the prisoner receives 15 notice and an opportunity to be heard. 16 dispute receipt of notice, and he admitted that he had an 17 opportunity to submit a written statement concerning his gang 18 validation. 19 Petitioner’s written statement was considered. 20 had an opportunity to be heard. Petitioner does not Respondent’s uncontradicted exhibits show that Thus, Petitioner 21 Habeas Rule 2(c) requires that a petition 1) specify all 22 grounds of relief available to the Petitioner; 2) state the facts 23 supporting each ground; and 3) state the relief requested. 24 Notice pleading is not sufficient; rather, the petition must 25 state facts that point to a real possibility of constitutional 26 error. 27 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 28 Allison, 431 U.S. 63, 75 n.7 (1977)). Rule 4, Advisory Committee Notes, 1976 Adoption; 7 Allegations in a petition 1 that are vague, conclusory, or palpably incredible are subject to 2 summary dismissal. 3 Cir. 1990). 4 Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Here, Petitioner has not stated specific facts that point to 5 a real possibility of constitutional error. 6 allegations demonstrate that Petitioner received all procedural 7 protections that were due during his gang validation proceeding. 8 Thus, granting leave to amend the petition would be futile. 9 Petitioner’s factual Accordingly, it will be recommended that the petition be 10 dismissed without leave to amend for failure to state facts that 11 would entitle Petitioner to relief in a proceeding pursuant to 28 12 U.S.C. § 2254. 13 IV. 14 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 15 appealability, an appeal may not be taken to the Court of Appeals 16 from the final order in a habeas proceeding in which the 17 detention complained of arises out of process issued by a state 18 court. 19 U.S. 322, 336 (2003). 20 only if the applicant makes a substantial showing of the denial 21 of a constitutional right. 22 petitioner must show that reasonable jurists could debate whether 23 the petition should have been resolved in a different manner or 24 that the issues presented were adequate to deserve encouragement 25 to proceed further. 26 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 27 certificate should issue if the Petitioner shows that jurists of 28 reason would find it debatable whether the petition states a 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 Miller-El v. Cockrell, 537 U.S. at 336 8 A 1 valid claim of the denial of a constitutional right and that 2 jurists of reason would find it debatable whether the district 3 court was correct in any procedural ruling. 4 529 U.S. 473, 483-84 (2000). 5 Slack v. McDaniel, In determining this issue, a court conducts an overview of 6 the claims in the habeas petition, generally assesses their 7 merits, and determines whether the resolution was debatable among 8 jurists of reason or wrong. 9 applicant to show more than an absence of frivolity or the Id. It is necessary for an 10 existence of mere good faith; however, it is not necessary for an 11 applicant to show that the appeal will succeed. 12 Cockrell, 537 U.S. at 338. Miller-El v. 13 A district court must issue or deny a certificate of 14 appealability when it enters a final order adverse to the 15 applicant. 16 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 17 debate whether the petition should have been resolved in a 18 different manner. 19 of the denial of a constitutional right. 20 21 Petitioner has not made a substantial showing Accordingly, it will be recommended that the Court decline to issue a certificate of appealability. 22 V. 23 Accordingly, it is RECOMMENDED that: 24 1) Respondent’s motion to dismiss the petition for failure Recommendations 25 to state facts entitling Petitioner to relief pursuant to 28 26 U.S.C. § 2254 be GRANTED; and 27 2) The petition be DISMISSED without leave to amend; and 28 3) The Court DECLINE to issue a certificate of 9 1 2 3 appealability; and 4) The Clerk be DIRECTED to close the case because dismissal will terminate the action in its entirety. 4 These findings and recommendations are submitted to the 5 United States District Court Judge assigned to the case, pursuant 6 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 7 the Local Rules of Practice for the United States District Court, 8 Eastern District of California. 9 being served with a copy, any party may file written objections Within thirty (30) days after 10 with the Court and serve a copy on all parties. 11 should be captioned “Objections to Magistrate Judge’s Findings 12 and Recommendations.” 13 and filed within fourteen (14) days (plus three (3) days if 14 served by mail) after service of the objections. 15 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 16 § 636 (b)(1)(C). 17 objections within the specified time may waive the right to 18 appeal the District Court’s order. 19 1153 (9th Cir. 1991). 20 21 Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d IT IS SO ORDERED. Dated: 10c20k January 1, 2012 /s/ Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 10
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