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Gonzalez v. Kane

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA


August 2, 2005

GEORGE GONZALEZ, PETITIONER,
v.
A. P. KANE, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Susan Illston United States District Judge

ORDER TO SHOW CAUSE

INTRODUCTION

George Gonzalez, a prisoner incarcerated at the Correctional Training Facility in Soledad, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases. His in forma pauperis application also is before the court for consideration.

BACKGROUND

Gonzalez claims that his due process rights were violated during disciplinary proceedings. The disciplinary proceedings stemmed from an incident that apparently occurred on or about May 20, 2004, when correctional officers found items (including a small shard of glass and an empty inhaler) in Gonzalez's cell. After a hearing, Gonzalez was found guilty of possession of a dangerous weapon and was assessed a 100-day credit forfeiture.

DISCUSSION

This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A district court considering an application for a writ of habeas corpus shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

The Due Process Clause of the Fourteenth Amendment of the U.S. Constitution protects individuals against governmental deprivations of life, liberty or property without due process of law. An inmate in California is entitled to due process before being disciplined when the discipline imposed will inevitably affect the duration of his sentence. See Sandin v. Conner, 515 U.S. 472, 484, 487 (1995). The process due in such a prison disciplinary proceeding includes written notice, time to prepare for the hearing, a written statement of decision, allowance of witnesses and documentary evidence when not unduly hazardous, and aid to the accused where the inmate is illiterate or the issues are complex. Wolff v. McDonnell, 418 U.S. 539, 564-70 (1974). Due process also requires that there be "some evidence" to support the disciplinary decision. Superintendent v. Hill, 472 U.S. 445, 454 (1985). The Due Process Clause only requires that prisoners be afforded those procedures mandated by Wolff and its progeny; it does not require that a prison comply with its own, more generous procedures. See Walker v. Sumner, 14 F.3d 1415, 1419-20 (9th Cir. 1994).

In his petition, Gonzalez alleges three claims. First, he alleges that his right to due process was violated because the evidence was insufficient to support the disciplinary decision. Liberally construed, the allegation states a cognizable due process claim.

Second, Gonzalez alleges that the prison administration failed "to record/report the findings," Petition p. 7. To the extent Gonzalez means that he had a right to have the proceedings transcribed or tape-recorded, the claim is meritless because recording and transcription services are not constitutionally required procedural protections. To the extent Gonzalez means to contend that he had a right to a decision that explained all the reasoning behind the decision, the claim likewise is meritless because a lengthy decision is not required by due process and the decision on the CDC-115 attached to the petition includes a written statement of decision.. The CDC-115 attached to the petition at pages 29-32 describes the alleged misconduct, states that notice of the charge was given to Gonzalez on May 27, 2004 (days before the hearing), describes the hearing and evidence considered thereat, describes the hearing officer's decision, and describes the disposition of the case. The completed CDC-115 satisfied the due process requirement of a written statement of decision.

Third, Gonzalez claims his right to due process was violated because he was not allowed to appeal the adverse disciplinary decision. This claim must be dismissed because the procedural protections constitutionally required do not include a right to an appeal of an adverse disciplinary decision.

CONCLUSION

For the foregoing reasons,

1. The petition presents a cognizable due process claim for insufficiency of the evidence to support the disciplinary decision and warrants a response. The other claims are dismissed.

2. The clerk shall serve by certified mail a copy of this Order and the contents of the case file for this action upon respondent and respondent's attorney, the Attorney General of the State of California. The clerk also shall send a copy of this Order to petitioner.

3. Respondent shall file and serve on petitioner, on or before September 16, 2005, an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent shall file with the answer a copy of all portions of the administrative and state court record that have been transcribed previously and that are relevant to a determination of the issues presented by the petition.

4. If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the Court and serving it on respondent on or before October 21, 2005.

5. Petitioner is responsible for prosecuting this case. He must keep the Court informed of any change of address and must comply with the Court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

6. Petitioner's in forma pauperis application is GRANTED. (Docket # 3 and # 4.)

IT IS SO ORDERED.

20050802

© 1992-2005 VersusLaw Inc.



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