The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner Anthony Castro is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, (1) Petitioner's requests for judicial notice are granted; (2) it is recommended that the habeas petition be denied; and (3) it is recommended that Petitioner's claims that should be raised in a civil rights action under § 1983, and not in a § 2254 habeas petition, be dismissed without prejudice.
Petitioner is currently serving a life sentence for murder and assault with a deadly weapon, with an enhancement for use of a firearm in the commission of a crime. Resp't's Answer Ex. 1, at 3, ECF No. 31.*fn1 He is in the custody of the California Department of Corrections and Rehabilitation, following his 1979 conviction by jury in the Kern County Superior Court. Id.
With this petition, Petitioner does not challenge his underlying conviction and sentence. Rather, he challenges two prison disciplinary actions against him for: (1) misuse of a computer (C11/06-067), Resp't's Answer Ex. 5, pt. 1, at 39-40; and (2) disobeying a direct order (C12/06-052). Id. at 79, 81-83.
A. Misuse of a Computer (C11/06-067)
Instructor P. Babrah stated in her rules violation report that on November 14, 2006, she observed Petitioner "changing the configuration on the computer." Id. at 39. According to Instructor Babrah, Petitioner "altered the Mavis Beacon Typing Test from an adult typing level to a child typing level for ages 5 to 8 years old. This test is used to document typing scores on the 128-E for student's typing progress in the Office Services Program." Id. Instructor Babrah reported that on August 7, 2006, Petitioner "signed his job description and the Inmate/Student Computer Use form," and "is aware of his responsibilities to perform his job assignments and not to change any configurations on the computer." Id.
A hearing took place on December 5, 2006. Id. at 40. Petitioner pleaded not guilty and stated, "I was browsing to practice another test. I may have accidentally selected that option." Id. The senior hearing officer found Petitioner guilty because of "Petitioner's admission of guilt to the written charge at the time of the hearing, specifically: 'I was browsing to practice another test. I may have accidentally selected that option.'" Id. The violation was reduced to a CDC- 128A violation, and Petitioner "was counseled and reprimanded." Id.
On February 15, 2007, the second level denied Petitioner's administrative appeal. Id. at 72. The second level reasoned that Petitioner "had signed and agreed to specific work expectations . . . not to manipulate the setting of the computer." Id. That denial stated, "This response constitutes final action of this appeal per 3084.7(b)(1)." Resp't's Answer Ex. 5, pt. 1, at 72.
B. Disobeying a Direct Order (C12/06-052)
Officer H. Medina stated in his rules violation report that on December 13, 2006, he "was walking pas[t] Vocational Office Services when Ms. Babrah, the Instructor, came out of the class and stated to [him], 'Could you explain to [Petitioner] he needs to get down during an alarm?'" Id. at 79. Officer Medina reported that he "instructed [Petitioner] to get down during an alarm," and "[Petitioner] complied with [his] order." Id. In a supplemental report, Officer Medina elaborated:
Ms. Babrah stated that when she walked by the inmate bathroom[,] she saw [Petitioner] standing at the mirror. She told him to come out and sit down. [Petitioner] looked at her and smiled, then turned back towards the mirror. Ms. Babrah was aware of the fact that [Petitioner] claims that he is hearing impaired and had told [Petitioner] to wear his hearing aid. [Petitioner] was still standing when Officer Medina came into Ms. Babrah's class. [Petitioner] did not get down until ordered by Officer Medina.
A hearing was conducted on December 29, 2006. Id. at 81. Petitioner pleaded not guilty and stated:
I was using the restroom. I did not hear her . . . . I am ADA Hearing Impaired. I only heard her one time and one time only. When I did hear her[,] I responded by coming out of the restroom. I took two steps to the nearest computer so that I would not be in the path of officers, then I got down. In the process of getting down she called Officer Medina. The OSS policy and practice is to not come out of the restroom during the code.
Id. Petitioner requested four witnesses, which included Instructor Babrah, Officer Medina, Inmate Jesperson, and Inmate Lujano. Id. These requests were granted, except for Inmate Jesperson, who "did not witness this occurrence." Id. The senior hearing officer found Petitioner guilty, and the violation was reduced to an administrative level CDC-115 violation for which Petitioner "was counseled and reprimanded." Id. at 83.
On March 6, 2007, the second level denied Petitioner's administrative appeal. Id. at 92. That denial stated, "[Petitioner] is advised that this issue may be submitted for a Director's Level of Review if desired." Id. at 93. On March 27, 2007, Petitioner filed his appeal at the director's level, id. at 95, but on June 12, 2007, Petitioner's appeal was returned to him because "[t]he Second Level of Review is considered the department's final action in regard to Rules Violation Reports classified as Administrative." Id. at 97.
C. State Habeas Petitions
On February 13, 2008, Petitioner filed a habeas petition in the Amador County Superior Court challenging the two disciplinary actions. See Resp't's Answer Ex. 1. On April 8, 2008, the Superior Court denied the petition, stating "the record reflects that some evidence supports said disciplinary actions." See Resp't's Answer Ex. 4, at 63 (citations omitted).
On June 16, 2008, Petitioner filed a habeas petition in the California Court of Appeal, Third Appellate District. See Resp't's Answer Ex. 5. On June 19, 2008, the Court of Appeal denied the habeas petition without comment or citation. See Resp't's Answer Ex. 6, at 2.
On July 29, 2008, Petitioner filed a habeas petition in the California Supreme Court. See Resp't's Answer Ex. 7. On October 1, 2008, the California Supreme Court denied the habeas petition, with only a citation to In re Dexter, 25 Cal. 3d 921, 160 Cal. Rptr. 118, 603 P.2d 35 (1979). Resp't's Mot. To Dismiss Ex. 1, at 7, Mar. 17, 2009, ECF No. 9. In re Dexter held that "a litigant will not be afforded judicial relief unless he has exhausted available administrative remedies." 25 Cal. 3d at 925, 160 Cal. Rptr. 118, 603 P.2d 35.
D. Federal Habeas Petition
On October 9, 2008, Petitioner filed the instant federal habeas petition. On March 17, 2009, Respondent filed the first of two motions to dismiss because "[t]he California Supreme Court based its [habeas] denial on [Petitioner's] failure to exhaust his administrative remedies." Resp't's Mot. To Dismiss 4, Mar. 17, 2009. On April 9, 2009, Petitioner filed an opposition to the motion. See Pet'r's Opp'n, Apr. 9, 2010, ECF No. 13. The record does not show that Respondent filed a reply.
On November 19, 2009, the Honorable Craig M. Kellison, the assigned magistrate judge at the time, issued findings and recommendations denying the motion to dismiss because "[P]petitioner did exhaust all administrative remedies available to him." Findings and Recommendations 2-3, Nov. 19, 2009, ECF No. 16 (noting: (1) for proceedings on misuse of computer, second level "denial specifically states that '[t]his response constitutes final action of this appeal per 3084.7(b)(1);'" and (2) for proceedings on disobeying direct order, Petitioner's appeal to director's level was returned because "the second level review is considered the final action for that type of violation"). On December 4, 2008, Respondent filed a request to withdraw the motion to dismiss, see Resp't's Req., Dec. 4, 2008, ECF No. 17, which was granted on December 15, 2008. See Order 1-2, Dec. 15, 2008, ECF No. 19.
On January 25, 2010, Respondent filed a second motion to dismiss, arguing that "the [p]etition should be denied for lack of federal habeas jurisdiction." Resp't's Mot. To Dismiss 2, Jan. 25, 2010, ECF No. 22. Respondent asserted that because "the prison disciplinaries did not result in a credit loss," they "do not affect the legality or duration of [Petitioner's] confinement." Id. On February 24, 2010, Petitioner filed an opposition to the motion, see Pet'r's Opp'n, Feb. 24, 2010, ECF No. 23, and Respondent filed a reply on March 5, 2010. See Resp't's Reply, Mar. 5, 2009, ECF No. 24. On March 30, 2010, Petitioner also filed three requests for judicial notice. See Pet'r's Reqs., Mar. 30, 2010, ECF Nos. 25-27.
On July 1, 2010, the Honorable Craig M. Kellison, the assigned magistrate judge at the time, issued findings and recommendations denying the second motion to dismiss because "[e]xpungement of [Petitioner's] conviction for the rules violation, if warranted, is both likely to accelerate his eligibility for parole, and could potentially affect the duration of [his] confinement." Findings and Recommendations 3, July 1, 2010, ECF No. 29 (internal citations and quotation marks omitted). The district court adopted the findings and recommendations in full on July 28, 2010. See Order 1-2, July 28, 2010, ECF No. 30. On August 25, 2010, Respondent filed an answer, to which Petitioner filed a traverse on October 8, 2010.
III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under 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); see also Peltier 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)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359, 362 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also 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); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, ...