FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Therein, petitioner challenges his 2007 prison disciplinary conviction for possessing a cell phone. Before the court is respondent's motion to dismiss the petition on exhaustion grounds.
PETITION FOR WRIT OF HABEAS CORPUS
Petitioner contends that on November 30, 2007, he was found guilty of a prison rules violation for being in possession of a cell phone and forfeited sixty-days of time credits as a result. Petitioner challenges that prison disciplinary action on the grounds that: (1) he has a liberty interest under the Fifth and Fourteenth Amendments that affords him due process protections, (2) his due process rights were violated when his request that three witnesses be called at his disciplinary hearing was denied, and (3) the disciplinary hearing decision was not supported by evidence satisfying either the preponderance of the evidence standard or the "some evidence" standard.
Respondent argues that petitioner failed to exhaust his claim that he was denied
the opportunity to call witnesses at his disciplinary hearing. Respondent acknowledges that petitioner raised this claim in the habeas petition he filed with the Solano County Superior Court but notes that in denying relief that court made the following finding:
Regarding his claims that he was denied witnesses, Petitioner has failed to state a prima facie case for relief. (People v. Duvall (1995) 9 Cal.4th 464, 475.) Petitioner has not indicated to what each of these three witnesses would testify, so the Court cannot determine whether a violation of due process occurred. Furthermore, based on what is known about what one witness would have stated, Petitioner has not shown that his hearing was prejudiced. A due process violation does not require reversal unless prejudice is shown. (Chapman v. California (1967) 386 U.S. 18, 24; In re Angela (2002) 99 Cal.App.4th 389, 391.)
(MTD (Doc. No. 15-1) at 2-3.) Respondent states that petitioner filed essentially identical habeas petitions with the California Court of Appeal and the California Supreme Court. Because those petitions were summarily denied by those courts, respondent argues that the denials also indicate a finding that petitioner failed to state a prima facie case for relief. (Doc. No. 15 at 3-4.)
Respondent contends that a citation to Duvall means that petitioner has failed to comply with California's procedural pleading standards requiring that a state habeas application be pled with sufficient particularity. Respondent argues that a procedurally deficient habeas petition filed with the California Supreme Court does not constitute fair presentation of the claims set forth therein. Respondent asserts that because petitioner could have filed a state habeas petition that cured the pleading deficiency, he has not exhausted the claim in question in state court.
Finally, respondent argues that this court should not grant petitioner stay and abeyance to allow him the opportunity to exhaust his claim that he was denied the opportunity to call witnesses at his disciplinary hearing. In this regard, respondent asserts that petitioner has not shown good cause for his failure to exhaust his claim by properly presenting it to the highest state court, nor has he demonstrated that the claim in question is not plainly meritless. (Id. at 5.) Thus, according to respondent, the pending habeas petition should be dismissed.
In his opposition to the motion to dismiss, petitioner argues that he has exhausted his claim regarding the denial of witnesses at his disciplinary hearing. Petitioner represents that in his state habeas petitions he informed the state courts as to what each of his witnesses would have testified to if he had been allowed to call them. In this regard, petitioner states that in ...