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Drake v. Adams

August 11, 2009

DEAN CLAY DRAKE, PETITIONER,
v.
DERRAL G. ADAMS,*FN1 WARDEN, CALIFORNIA STATE PRISON, CORCORAN, RESPONDENT.



The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

ORDER

[Re: Motion at Docket No. 16]

Petitioner Dean Clay Drake, a state prisoner appearing pro se, filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Drake is presently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Corcoran. At Docket No. 16 Respondent filed a motion to dismiss the petition, which motion Drake has opposed [Docket No. 18].

I. BACKGROUND

A prison Rules Violation Report ("RVR") was issued against Drake in May 2004. The prison disciplinary proceedings followed a somewhat tortuous course. At a hearing held in June 2004 Drake was found guilty of battery on a peace officer, assessed 150 days loss of credit, counseled and reprimanded, and referred for assessment for a Special Housing Unit ("SHU") term. Upon review in July 2004, the RVR was reissued and a new hearing ordered. At the second hearing in August 2004 Drake was again found guilty of battery on a peace officer, again counseled and reprimanded, and referred for assessment for a SHU term. No loss of credit was imposed. Drake appealed this conviction and in December 2004 the RVR was again ordered reissued and reheard. In January 2005 a third hearing was held at which Drake did not appear.

Drake was again found guilty of battery on a peace officer and the same punishment imposed as was imposed as a result of the second hearing in August 2004. Drake again appealed and in March 2005 once again the RVR was ordered reissued and reheard. Ultimately, at the fourth hearing on April 26, 2005, Drake was again found guilty of battery on a peace officer. Drake was again counseled and reprimanded, and referred to a SHU term; however, no credit loss was assessed. Drake did not administratively appeal from the April 2005 decision.

Drake timely challenged his conviction in a petition for a writ of habeas corpus in the California Superior Court, Lassen County, alleging that there was no evidence to support the RVR. The Superior Court denied Drake's petition in a written decision on January 11, 2006. Drake subsequently filed successive petitions for habeas relief in the California Court of Appeal, Third Appellate District, and the California Supreme Court summarily denied his petitions without opinion or citation to authority on March 2, 2006, and June 14, 2006, respectively. Drake timely filed his petition for relief in this Court on March 26, 2007.

II. ISSUES PRESENTED IN THE MOTION

Respondent has moved to dismiss the petition on the grounds that: (1) Drake is procedurally barred from bringing his claim in this Court and (2) that since the disciplinary action did not affect the fact or duration of Drake's incarceration, it is not the proper subject of federal habeas corpus jurisdiction.

III. STANDARD

Because the petition was filed after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court rendered its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn2 In applying this standard, this Court reviews the last reasoned decision by the state court,*fn3 which in this case was that of the California Superior Court.

A § 2254 petition may be dismissed upon the motion of the Respondent if the petition on its face either shows lack of jurisdiction or fails to state a claim upon which relief may be granted.*fn4

IV. DISCUSSION

1. Procedural ...


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