FINDINGS AND RECOMMENDATIONS
Petitioner is a state prison inmate proceeding pro se with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. He challenges the loss of 30 days' worktime credit following a disciplinary hearing in which petitioner was found guilty of refusing a cellmate. Respondent has filed an answer and petitioner, his traverse.
Petitioner claims the disciplinary finding against him is invalid for the following reasons: (1) he was not assigned an investigative employee to help him prepare his defense for the disciplinary hearing; (2) he was denied a fair hearing because the senior hearing officer, Brown, was biased against him due to their past history; (3) he did not refuse a cellmate, but moved into the cell of another prisoner; and (4) he was improperly denied access to Officer Baker as a witness. Pet. at 7-8.*fn1
According to the Rules Violation Report (RVR), petitioner appeared before the senior hearing officer (SHO) at the hearing and expressed his feeling that the SHO could not be unbiased. Nevertheless the SHO elected to continue because petitioner was unable to present a "credible theory or evidence that supported his contentions" of bias. Answer, Ex. 3 at 2. The RVR states that an investigative employee was not assigned in "accordance with CCR, Title 15 § 3315 (d)(1)(A) based on: The complexity of the issues does not require further investigation. The available information is sufficient." Id. The RVR states Officer Baker was denied as a witness because he was not present when petitioner verbally refused to take a cellmate, and therefore did not have relevant testimony to give. Id., Ex. 3 at 3. At the completion of the disciplinary hearing, petitioner was found guilty and assessed a forfeiture of 30 days' worktime credit and 5 days' yard privileges. Id., Ex. 3 at 4.
Petitioner filed a petition for a writ of habeas corpus in Solano County Superior Court, which dismissed the petition for failure to establish a prima facie case. Answer, Ex. 5 at 2. The California Court of Appeal denied petitioner's request filed there without comment. Answer, Ex. 6. The California Supreme Court also issued a summary denial. Answer, Ex. 7.
Petitioner filed the pending petition on March 29, 2007.
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). Also, federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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 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.
28 U.S.C. § 2254(d) (referenced herein in as "§ 2254(d)" or "AEDPA").*fn2 It is the habeas petitioner's burden to show he is not precluded from obtaining relief by § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) are different. As the Supreme Court has explained:
A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362 (2000)] that an unreasonable application is different from an incorrect one.
Bell v. Cone, 535 U.S. 685, 694 (2002). A state court does not apply a rule different from the law set forth in Supreme Court cases, or unreasonably apply such law, if the state court simply fails to cite or fails to indicate an ...