The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS FOR FAILURE TO STATE A COGNIZABLE CLAIM (DOC. 1) AND DIRECTING THE CLERK TO CLOSE THE ACTION
ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on December 23, 2010 (doc. 5). Pending before the Court is the petition, which was filed on December 6, 2010.
Petitioner, who is an inmate of Kern Valley State Prison (KVSP) serving a sentence of over eight years, challenges a prison disciplinary finding made at California State Prison at Solano (CSP) on October 20, 2006, that Petitioner possessed an inmate-manufactured weapon in violation of Cal. Code Regs., tit. 15, §3006(a), which resulted in a forfeiture of 181 days of earned time credits. (Pet. 4-6, 24.) Petitioner seeks dismissal of the charge, restoration of credits, and release. (Pet. 21.)
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000).
Plaintiff claims that in the course of the proceedings resulting in the disciplinary finding, he suffered violations of his right to equal protection and due process of law guaranteed by the Fourteenth Amendment. Because violations of the Constitution are alleged, it is concluded that the Court has subject matter jurisdiction over the instant petition.
Further, Petitioner names as Respondent "Harrington." (Pet. 1.) Reference to the facilities website of the California Department of Corrections and Rehabilitation (CDCR) reflects that the warden of KVSP is Kelly Harrington. Petitioner has thus named as Respondent a person who has custody of the Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
Accordingly, this Court has jurisdiction over this action and over Respondent Harrington, Warden of KVSP.
II. Screening the Petition
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).
Here, a review of the petition demonstrates that Petitioner has included apparently complete documentation of the challenged disciplinary proceedings and Petitioner's exhaustion of the administrative remedies available to Petitioner within the CDCR. (Pet. 1-48, 30-32, 44.)
Petitioner claimed in the disciplinary proceedings and alleges in the petition that he did not possess the weapon, which was found in a vent over the sink in the cell he shared with another inmate, because he did not have access to it or knowledge of its presence. He contended that he had only recently moved into the cell in question. (Pet. 16, 25.) Other than Petitioner's denial that he possessed the weapon, there do not appear to be any disputed material facts with respect to the disciplinary proceedings or the evidence underlying the finding that Petitioner possessed the weapon.
Accordingly, the Court will proceed to determine whether Petitioner's allegations state a cognizable claim for habeas corpus relief.
Correctional Sergeant D. Whitson reported in a rules violation report dated September 18, 2006, that during a cell search, a single-edged razor in a Bugler case with tattoo needles and a note of a type associated with northern Hispanic gangs were discovered in Petitioner's cell. Pet. 24.) The razor blade had cellophane at one end to be used as a handle. (Id.) Whitson gave a consistent statement concerning the weapons and their discovery via telephone at the hearing on the charge. (Pet. 26.) Correctional Lieutenant Jackson, the hearing officer, reported that Whitson stated that she had seen both Petitioner and his cell mate moving around in their cell while throwing things into the toilet, and during a subsequent cell search the razor blade was discovered in the air vent. (Pet. 25.)
With respect to the procedures relating to the disciplinary hearing, Petitioner was given notice of the charges. (Pet. 24.) Petitioner pled not guilty. (Pet. 24.)
Following Petitioner's request for an investigative employee (IE), Officer Parks was assigned and subsequently accepted by Petitioner. (Pet. 28.) Parks interviewed Whitson on September 28, 2006. Parks reported that Whitson stated that during a cell search the cell door was jammed; Petitioner and cell mate Dunlap were scrambling to get rid of contraband in the toilet and vent above the sink; after restraint of both inmates, the razor blade, tattoo gun with needles, and a mini note were found in the cell. (Pet. 28.)
The petition shows that Whitson's rules violation report was given to Petitioner on September 21, 2006; the crime incident report dated September 18, 2006, was issued to Petitioner on the same date; and the IE's report, dated September 27, 2006, was issued to Petitioner on October 3, 2006. (Pet. 25.)
Although the IE's report reflects that Petitioner told Parks that he did not want Whitson or any staff or inmate witnesses at the hearing (Pet. 28-29), the report of the hearing officer reflects that Petitioner requested that Sgt. Whitson be made available. She gave a statement by telephone. (Pet. 25.) Petitioner did not object to Whitson's telephonic presence at the hearing. (Pet. 26.)
The evidence presented at the hearing was Whitson's report, the crime incident report, Whitson's telephonic statement, and the investigative employee's report. The hearing officer found Petitioner guilty based on a preponderance of the evidence, including Whitson's report of the ...