The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS THE PETITION FOR FAILURE TO STATE A COGNIZABLE CLAIM ) (DOCS. 14, 1)
FINDINGS AND RECOMMENDATIONS TO DENY A CERTIFICATE OF APPEALABILITY AND TO DIRECT THE CLERK TO SEND PETITIONER A CIVIL RIGHTS COMPLAINT FORM
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. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the Respondent's motion to dismiss the petition filed on November 9, 2010.
Petitioner, an inmate of Pleasant Valley State Prison, challenges a disciplinary finding made in March 2008 that Petitioner failed to comply with count procedures in violation of Cal. Code Regs. tit. 15, § 3017, which provides, "Inmates must be present at designated times and places for counts, and must present themselves for count in the manner set forth in institution procedures." (Pet. 7, 37, 19.)
In the petition filed on October 26, 2009, Petitioner initially alleged 1) he was innocent of the violation because of insufficient evidence of the prohibited conduct and of willfulness; 2) the offense of failure to comply with count procedures was not an offense, was not a lesser included offense of the originally charged violation of delaying a peace officer while performing his duties, and was not a serious rules violation; 3) Cal. Code. Regs. tit. 15, § 3017 granted excessive discretion to prison authorities and resulted in false charges of violations and wrongful convictions; and 4) the disciplinary finding violated Petitioner's right to due process guaranteed under the Fourteenth Amendment of the United States Constitution. (Pet. 7-16.) Petitioner seeks the reversal of the guilty finding and expungement of references to it in Petitioner's central file, modification of the state regulation, and restoration of thirty (30) days of lost credit. (Pet. 14.)
By this Court's order filed on September 2, 2010, Petitioner's claims concerning the interpretation of the offense of failure to comply with count procedures, its status as a serious rules violation or as a lesser included offense of the originally charged violation, the extent of discretion entrusted to prison officials under Cal. Code. Regs. tit. 15, § 3017, and any violation of due process of law premised solely on the state constitution were dismissed because they were state law claims not cognizable in a proceeding pursuant to 28 U.S.C. § 2254. Insofar as Petitioner claimed a violation of federal due process of law because of the absence of some evidence to support a finding of a violation of the pertinent disciplinary rules, the Respondent was ordered to file a response to the petition. Respondent filed the motion to dismiss on November 9, 2010. On November 24, 2010, Petitioner filed opposition to the motion to dismiss. No reply was filed.
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 only 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); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam). Petitioner alleges that he suffered a constitutional violation as a result of the challenged disciplinary proceedings.
Further, the decision challenged arises out of conduct of prison officials at a prison located within the jurisdiction of this Court. 28 U.S.C. §§ 2254(a), 2241(a), (d).
Accordingly, this Court has jurisdiction over this action.
III. The Propriety of a Motion to Dismiss
In the motion to dismiss the petition, Respondent argues that Petitioner has failed to state a case or controversy cognizable pursuant to 28 U.S.C. § 2254. Respondent argues that Petitioner has failed to establish a basis for habeas relief because Petitioner's allegations do not concern the fact or duration of his confinement.
The filing of a motion to dismiss instead of an answer was authorized by the Court's order of September 8, 2010, which referred to the possibility of Respondent's filing a motion to dismiss and set forth a briefing schedule for any such motion. (Doc. 10, 3.) It is established that the filing of a motion to dismiss is authorized by Rule 4 of the Rules Governing Section 2254 Cases in the District Courts. Rule 4, Advisory Committee Notes, 1976 Adoption and 2004 Amendments.
Here, the reason for the motion filed by Respondent was an absence of a basis for granting federal habeas because the Petitioner's complaint did not affect the legality or duration of his confinement. This Court has limited jurisdiction and is mindful of its continuing duty to determine its own subject matter jurisdiction and to dismiss an action where it appears that the Court lacks jurisdiction. Fed. R. Civ. P. 12(h)(3); CSIBI v. Fustos, 670 F.2d 134, 136 n.3 (9th Cir. 1982) ...