The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge Sitting by Designation
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254(a). Pending before this Court are Petitioner's application for a writ of habeas corpus (Doc. 1), Respondent's Answer (Doc. 13), and Petitioner's Traverse (Doc. 25). For the reasons discussed below, Petitioner's application will be denied.
Petitioner is in the lawful custody of the California Department of Corrections and Rehabilitation (CDCR). Petitioner is serving a twenty-year prison sentence following his conviction for possession of a controlled substance in prison, transportation and sale of a controlled substance, and purchase of cocaine for sale. (Doc. 13, Ex. A [Abstract of Judgment]).
Petitioner does not challenge his conviction. Rather, Petitioner challenges a prison disciplinary hearing that resulted in a loss of credits. The disciplinary decision stems from a September 30, 2005 incident where Petitioner and his cell mate Gonzales refused orders to "cuff up" so that they could be removed from their cell. (Doc. 13, Ex. B [Rules Violations Report] at 1). Earlier, Petitioner and Gonzales were observed by an officer dividing what appeared to be a white powder substance into lines. Id. at 3. Once Officer Garrison was able to open the cell door, Gonzales ran towards the toilet while Saunders "lunged" towards Garrison. Id. at 1. Officer Garrison utilized his O.C. pepper spray and sprayed both Petitioner and Gonzales in the head and upper torso. Id. As officers were restraining Gonzales, Petitioner was "resisting by kicking his feet, as Officer Deathriage was pulling him out of his cell." Id. at 2. Officer Garrison was "struck on the right side of [his] forehead by [Petitioner's] right foot, knocking [Garrison] backwards." Id. Both Petitioner and Gonzales were eventually restrained. Id.
At an April 22, 2006 prison disciplinary hearing, a hearing officer found Petitioner guilty of battery on a peace officer necessitating the use of O.C. pepper spray. (See Doc. 13, Ex. B at 4-5).
On July 6, 2006, Petitioner attempted to file an administrative grievance challenging the disciplinary decision. On July 13, 2006, the administrative grievance was rejected as untimely. (See Doc. 1, Ex. 1 [CDC Form 695]). Although Petitioner claimed to have received a copy of the disciplinary decision only on July 6, 2006 (the same day he filed his administrative grievance), the rejection letter indicated that Petitioner was served with a copy on June 9, 2006. See id. The letter also advised Petitioner that "Staff confirmed that the CDC 115 was issued [to Petitioner] during Third Watch." Id.
Petitioner filed a habeas petition in the Fresno County Superior Court challenging the disciplinary decision. On December 6, 2006, the superior court denied the petition on the ground that Petitioner failed to exhaust his administrative remedies. (Doc. 13, Ex. C). The superior court also stated as follows:
[E]ven if this court were to find that petitioner did not receive his written copy of the disciplinary findings until July 6, 2006, the evidence does not establish that he was subjected to a prejudicial denial of due process. There is ...