FINDINGS AND RECOMMENDATIONS
Petitioner Derrick Lee Billups is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner claims that prison staff retaliated against him by issuing multiple false disciplinary reports. Petitioner claims these actions violated his right to due process and his First Amendment rights. Upon careful consideration of the record and the applicable law, it is recommend that his petition for habeas corpus relief be denied.
FACTUAL AND PROCEDURAL BACKGROUND
On March 11, 2003, petitioner filed an inmate appeal form against Correctional Officer Douglas. Petition at 31. On March 12, 2003 Officer Douglas filed a California Department of Corrections ("CDC") 115 disciplinary report alleging petitioner had evaded work. Answer, Ex. B. at 2. Petitioner claims that he was granted "S" time credits for an authorized medical appointment during this time. Petition at 8. Additionally, petitioner claims that on March 27, 2003, he had a "medical ducat" for a medical visit and that Officer Douglas again issued him a CDC 115 Disciplinary Report for evading work. Id. at 9. Petitioner claims the motive for Officer Douglas' false disciplinary reports was to retaliate against him for filing the March 11, 2003 appeal, which reported that officer Douglas was involved in "illegal sexual misconduct and behavior with inmates during work hours."*fn1 Petition at 9.
According to Officer Douglas, on March 12, 2003, petitioner was released from his job assignment at 0840 hours to see Doctor L. Allen. Answer, Exhibit B at 2. At approximately 0950 hours, Officer Douglas went to Doctor Allen's office to check on petitioner's whereabouts. Id. Dr. Allen informed Officer Douglas that Dr. Allen had released petitioner at approximately 0920 hours. Id. After a search, at 1005 hours, Officer Douglas paged petitioner to report to Building #5. Id. After approximately 5 minutes, petitioner reported and claimed that Dr. Allen had asked petitioner to get additional information from CCI Guthrey. Id. Officer Douglas questioned Dr. Allen about this, and Dr. Allen denied sending petitioner to see any state employee, stating that after her exam she released him to work. Id.
As a result of the March 12 disciplinary report, a hearing was held on April 12, 2003 at 1025 hours. Id. Petitioner was present and acknowledged receiving "all charges and all pertinent and non-confidential reports relative to the charges at least 24 hours prior to the hearing." Id. The hearing officer read the charges to petitioner, petitioner pled not guilty and gave his version of events. Id. Petitioner also called Inmate Wilson to testify. Id. Inmate Wilson testified that he saw Dr. Allen at 0930 hours and did not know when petitioner saw Dr. Allen. Id. Petitioner also submitted written questions to Officer Whitman and Dr. Allen, and those responses were accepted in lieu of testimony. Id. In responding to petitioner's specific question of whether Dr. Allen had requested petitioner do anything after he was released, Dr. Allen answered "no." Id. Dr. Allen went on to state that she never gave petitioner instructions to seek any other information. Id. at 4.
On this same date another hearing was held at 1500 hours concerning the March 27, 2003 Rules Violation Report, in which Officer Douglas claimed that petitioner failed to report to work on that date. Answer, Ex. D at 2. Petitioner was present and acknowledged receiving "all charges and all pertinent and non-confidential reports relative to the charges at least 24 hours prior to the hearing." Id. The hearing officer read the charges to petitioner, petitioner pled not guilty and gave his version of events. Id. Petitioner claimed that he wasn't released for morning chow until after Officer Douglas noted he had not reported to work. Id.
At the conclusion of these hearings, petitioner was found guilty of evading work on March 12, 2003 and March 27, 2003. Answer, Ex. B at 4 and Ex. D at 3. Petitioner was assessed loss of 30-days of good time credits and 30 days of privileges. Answer, Ex. B at 5 and Ex. D at 4.
After exhausting his administrative remedies, petitioner petitioned the Tuolumne County Superior Court on November 18, 2003. Answer, Ex. G., Part I at 14. On November 24, 2003, that court found the petitioner's finding of guilt was "supported by some evidence in the record" and upheld the ruling. Id. Petitioner then petitioned the California Court of Appeal, which denied that petition on December 11, 2003. Id. at 16. On December 18, 2003, petitioner petitioned the California Supreme Court. Id. at 3. That petition was denied on October 13, 2004. Petitioner then filed this petition on January 27, 2005.
A. Standards of Review Applicable to Habeas Corpus Claims
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. SeePeltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. SeeEstelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues denovo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). SeeLindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
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 -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...