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Gregory Joseph Ott v. Terri Gonzalez

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


May 27, 2011

GREGORY JOSEPH OTT, PETITIONER,
v.
TERRI GONZALEZ, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Philip S. Gutierrez United States District Judge

ORDER SUMMARILY DISMISSING PETITION

The petitioner in this habeas corpus action pursuant to 28 U.S.C. § 2254, Gregory Joseph Ott, is a state inmate. He challenges a 2008 prison disciplinary finding whereby, in addition to other punishments, he lost "good time" credit towards completion of his sentence. Petitioner explains that an attorney, appointed to assist him in challenging that finding in a state trial court in Napa County, failed to file a traverse in that court, thus causing Petitioner to lose that challenge. Petitioner asserts here that he was denied effective assistance of counsel in violation of his federal constitutional rights. Because that claim is clearly legally infirm, as explained below, the Court will dismiss the action summarily.

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts provides in part that "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified."

Absent a constitutional right to counsel in the first place, there can be no deprivation of any right to effective assistance of counsel. See Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982) (per curiam). Inmates have no right to retained or appointed counsel at prison disciplinary proceedings. See Baxter v. Palmigiano, 425 U.S. 308, 315, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). Because Petitioner had no right to counsel at (or after) his disciplinary proceedings, he cannot demonstrate a violation of such a right. His ineffective-assistance claim fails as a matter of law.

For the foregoing reasons, the Court DISMISSES this action. IT IS SO ORDERED.

20110527

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