FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner does not challenge his underlying conviction. Rather, he claims that his rights to due process and equal protection were violated when he was identified, allegedly improperly, as a member of the Black Guerrilla Family (BGF) prison gang, placed in a Security Housing Unit (SHU), and deprived of the ability to earn good time credits and prison privileges. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
A. Proceedings in this Court
On July 31, 2003, petitioner filed this action in the United States District Court for the Northern District of California on the form for filing petitions for a writ of habeas corpus. He alleged five claims: (1) Correctional Lieutenant J. Peterson violated his due process rights when he: (a) participated in the validation of petitioner as a BGF gang member without allowing petitioner "a hearing to challenge the gang allegation;" (b) altered the documentation underlying petitioner's gang validation; and (c) improperly participated in petitioner's administrative appeal of his gang validation; (2) Correctional Caption R. Johnson violated his due process rights when he improperly participated in petitioner's administrative appeal of his gang validation; (3) correctional officers T. Felk and T. Kopec violated his due process rights when Officer Kopec improperly participated in petitioner's administrative appeal of his gang validation and refused to call a witness requested by petitioner at the hearing on the administrative appeal; (4) petitioner's rights to due process and equal protection were violated when he was improperly identified as a BGF gang member, placed in a Security Housing Unit (SHU), and deprived of the ability to earn good time credits and prison privileges; and (5) the California courts violated his right to due process by denying his habeas petitions in an untimely manner.*fn1 On August 4, 2003, the U.S. District Court for the Northern District of California construed petitioner's petition as a civil rights action pursuant to 42 U.S.C. § 1983 and transferred the case to this court.
On August 13, 2003, petitioner filed a request that his recently transferred civil rights action be "consolidated" with another civil rights action pending in this court, entitled Dawkins v. Peterson et al., CIV S-02-2038 LKK KJM P. Alternatively, petitioner requested that he be permitted to pursue only his fourth claim in an application for a writ of habeas corpus. Petitioner explained that claims 1, 2, 3, and 5 contained in his recently transferred petition were "the same" as the claims raised in case No. CIV S-02-2038 LKK KJM P. By order dated September 24, 2003, the magistrate judge previously assigned to this case determined that consolidation was not appropriate but authorized the continuance of this matter solely as a habeas corpus action because petitioner was challenging a loss of good time credits.
On December 1, 2003, before respondent had filed an answer to the instant habeas petition, petitioner filed a traverse, in which he addressed all five of the claims contained in his original petition. On December 24, 2003, respondent filed an answer in which he addressed only claim 4 contained in the petition, noting that petitioner had requested to proceed with a habeas action on claim 4 only. On January 12, 2004, pursuant to the court's authorization, petitioner filed a supplemental traverse in which he argues that he was improperly validated as a prison gang member in violation of his rights to due process and equal protection, as alleged in claim 4.
On September 8, 2008, petitioner filed an ex parte request for case status, in which he informed the court that he paroled from prison on December 16, 2006, but was returned for a parole violation in May, 2008.
As described above, in his August 13, 2003 request to consolidate, petitioner conceded that claims 1, 2, 3, and 5 contained in the instant petition were identical to the claims contained in case No. CIV S-02-2308 LKK KJM P, and he requested permission to proceed in his habeas action with claim 4 only.*fn2 The court construes the August 13, 2003 filing as a voluntary dismissal of all claims except the request for habeas relief asserted in claim 4. Accordingly, the court addresses the only remaining claim, claim 4.
Petitioner claims that his rights to due process and equal protection were violated when he was validated as a prison gang member and placed in the SHU and denied the opportunity to earn good time credits. Petitioner claims that on September 20, 2001, he appeared before a classification committee and was advised that he had been confirmed (validated) as a prison gang member and would be transferred to the SHU, thereby losing the right to earn one good time credit for each day served. Pet. at 18. He alleges that this action forced him to forfeit credit that he would otherwise have earned and changed his parole date from August 23, 2005 to December 26, 2006. Id. Petitioner also claims that he was denied the right to participate in prison programs even though he had not been found guilty of a serious disciplinary violation. Petitioner states that he requested permission to present argument and witnesses to prove that he was not a gang member, but his request was denied. Id. at 19. He further alleges that on October 18, 2001, he appeared before another classification committee, where he told the committee members that correctional Lieutenant Peterson had altered the documentation underlying his gang validation and had planted evidence in his cell. Id. at 20. Petitioner also asked to view the evidence underlying his gang validation. Id. The committee rejected petitioner's claims and requests. Id. at 20-21.
In his supplemental traverse, petitioner claims that the prison failed to comply with appropriate regulations and procedures and that he was improperly validated as a gang member. January 12, 2004 Supplemental Traverse at 3-4. He states that prisoners who have been found to be affiliated with other gangs do not suffer the same treatment that he received unless they have been found guilty of a serious rules violation after being afforded "procedural and substantive due process protections established in Wolff v. McDonnell, 418 U.S. 539." Id. at 5-6. Petitioner claims that the California Code of Regulations "affords all other prisoners housed in general population the administrative/due process right to be punished 'only' for actually, individual, serious misconduct." Id. at 7.
Petitioner raised these claims in a petition for writ of habeas corpus filed in the Sacramento County Superior Court. Response to April 22, 2008 Order, filed on April 29, 2008, at page 4 of 8. That court transferred the matter to the Lassen County Superior Court, which denied petitioner's claims with the following reasoning:
The petitioner, in the custody of the California Department of Corrections (CDC) at Pelican Bay State Prison, complains of his validation as a prison gang member while housed at High Desert State Prison, and seeks a lengthy list of remedies, including reversal of the validation of his gang member status and extensive revision of CDC rules and regulations relating to housing of such gang members.
Thorough review and consideration of the petition and its exhibits demonstrates no violation of any CDC rule or regulation in the course of the petitioner's validation as a prison gang member; the rules and regulations themselves do not violate constitutional due process standards. The credit forfeiture complained of is not a forfeiture; no previously-earned credit has been taken from petitioner. The 2190-day Special Housing Unit (SHU) term complained of is equally illusory: petitioner's mandatory SHU placement must be reviewed each 180 days (15 CCR 3341.5(c)(A)(2) and it is within petitioner's power to shorten his stay therein.
The court does not have a right to judge the intrinsic value of the evidence adduced before an administrative board, the court's power being confined to determining whether there was substantial evidence to support its findings (Sultan Turkish Bath, Inc. v. Police Commissioners (1959) 169 Cal.App.2nd 188; see also Superintendent v. Hill (1985) 472 U.S. 445); Exhibits "B" (H?) and "C" provide that support. The courts accord prison administrators wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve order and discipline and to maintain institutional security. In re Wilson (1988) 202 Cal.App.3rd 661; People v. Garcia (1978) 78 Cal.App.3rd 247.)
Id. Petitioner subsequently raised his claims in a petition for writ of habeas corpus filed in the California Supreme Court. Id. at page 8 of 8. That petition was summarily ...