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Hurd v. Scribner

May 2, 2007

DALE RAY HURD PLAINTIFF,
v.
L.E. SCRIBNER, WARDEN DEFENDANTS.



The opinion of the court was delivered by: Hon. John A. Houston United States District Judge

ORDER OVERRULING PETITIONER'S OBJECTIONS, ADOPTING THE MAGISTRATE JUDGES'S REPORT AND RECOMMENDATION AND DENYING THE PETITION FOR WRIT OF HABEAS CORPUS.

INTRODUCTION

Petitioner, a state prisoner appearing pro se, has filed a petition for writ of habeas corpus challenging disciplinary action taken against him pursuant to 28 U.S.C. § 2254. Respondents filed an answer to the petition and Petitioner filed a traverse. The Honorable Judge Leo S. Papas, United States Magistrate Judge, thereafter submitted a report and recommendation recommending the petition be denied in its entirety. Petitioner filed objections to the report and recommendation. Now, after a thorough review of the pleadings and relevant exhibits submitted by the parties, as well as the magistrate judge's Report, and for the reasons set forth below, this Court OVERRULES petitioner's objections, ADOPTS the report and recommendation and DENIES the petition in its entirety.

BACKGROUND

On March 6, 2004, Petitioner was ordered by prison officials to submit a urine sample for random drug testing, but refused to submit a sample. He was therefore charged with "refusing to submit a urine sample" in violation of California Code of Regulations, title 15, §3290(d). Petitioner was found guilty at the disciplinary hearing and disciplined with a 90-day 'good time' credit forfeiture, 30 days of lost phone privileges, and a 10 day loss of yard privileges. Petitioner challenged the disciplinary action through the California Department of Corrections' administrative appeals process and, on March 25, 2005, his appeal was denied at the final level of review. Additionally, Petitioner filed various state court habeas petitions challenging the action, all of which became final on January 4, 2006, when the California Supreme Court issued a final order denying his claims.

DISCUSSION

1. Legal Standard

a) Scope of Review of Magistrate Judge's Report and Recommendation

The district court's role in reviewing a magistrate judge's Report and Recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and " may accept, reject, or modify, in whole or part, the findings or recommendation made by the magistrate [judge]." Id. It is well settled, under Rule 72(b) of the Federal Rules of Civil Procedure, that a district court may adopt those parts of a magistrate judge's report to which no specific objection is made, provided they are not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 153 (1985).

b) Scope of Review of Federal Habeas Corpus Petition

Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a 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).

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "worked substantial changes to the law of habeas corpus." Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997). As ...


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