The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO ) DISMISS, DISMISS THE PETITION WITHOUT LEAVE TO AMEND, DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE (DOCS. 14, 1) OBJECTIONS DEADLINE: THIRTY (30) DAYS
Petitioner is a state prisoner proceeding pro se 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 Respondent's motion to dismiss the petition, which was filed and served by mail on Petitioner on March 29, 2011. No opposition to the motion was filed.
I. Proceeding by a Motion to Dismiss 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 to the petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997).
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).
Rule 4 of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules) allows a district court to dismiss a petition if 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 Ninth Circuit has allowed respondents to file motions to dismiss pursuant to Rule 4 instead of answers if the motion to dismiss attacks the pleadings by claiming that the petitioner has failed to exhaust state remedies or has violated the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss a petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to review a motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). Thus, a respondent may file a motion to dismiss after the Court orders the respondent to respond, and the Court should use Rule 4 standards to review a motion to dismiss filed before a formal answer. See, Hillery, 533 F. Supp. at 1194 & n.12.
In this case, upon being directed to respond to the petition by way of answer or motion, Respondent filed the motion to dismiss. The material facts pertinent to the motion are to be found in the pleadings and in copies of the official records of state parole and judicial proceedings which have been provided by the parties, and as to which there is no factual dispute. Because Respondent's motion to dismiss is similar in procedural standing to motions to dismiss on procedural grounds, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.
Petitioner alleged that he was an inmate of the Avenal State Prison at Avenal, California, serving a sentence for a conviction suffered in 2008. (Pet. 1.)
Petitioner was accused of having committed the disciplinary violation of undue familiarity with staff in violation of Cal. Code Regs., tit. 15, § 3400. Petitioner admitted during the investigation that he was involved in an overly familiar relationship, and he pled guilty at the disciplinary hearing. After Petitioner was found guilty of having committed the violation, Petitioner appealed on the ground that wrong code section had been used. The disciplinary authorities amended the finding to reflect a violation of § 3005(a) instead of § 3400 because the latter applied to misconduct by staff, whereas § 3005 applied to the conduct of inmates.
Petitioner argues that he suffered a violation of due process of law when the disciplinary authorities failed to re-issue the charge and permit Petitioner to defend himself because the new violation was not the same as the previous violation. Petitioner alleges that he would not have pled guilty to a violation of § 3005(a). (Pet. 5.) Petitioner alleges that he was deprived of notice of the elements of the violation and all the procedural due process prescribed by pertinent state regulations. Further, he contends that the amended charge was more severe.
Petitioner further argues that there was no evidence to find him guilty of violating § 3005(a). He also contends that state court decisions upholding the disciplinary finding involved unreasonable determinations of fact. He seeks a new hearing, dismissal of the finding, and its expungement from the file. (Pet. 5-6, 8.)
Documentation of the disciplinary proceedings reflects that in the course of an investigation, Petitioner admitted in an interview with a correctional agent on May 12, 2008, that he was involved in an overly familiar relationship. (Mot., Ex. 1, doc. 14-1, 14.) The reporting employee stated that evidence of the relationship was discovered, and that Petitioner admitted being involved in the relationship. (Id. at 15.) Petitioner was assigned an investigative employee on June 18, 2008, but Petitioner did not request any witnesses and declined to make a statement. (Id.)
Petitioner personally appeared at a disciplinary hearing held before a Senior Hearing Officer (SHO) on June 20, 2008, and confirmed that he had received all pertinent documentation at least twenty-four hours before the hearing and was ready to proceed. (Id. at 14-15.) Petitioner elected to plead guilty to the violation but declined to make a statement. (Id. at 16.) The SHO found Petitioner guilty of violating Cal. Code Regs., tit. 15, § 3400, because the violation was established by the preponderance of the evidence based on the investigation, Petitioner's admission in the interview and failure to make any statement in his defense, and Petitioner's credible guilty plea. (Id. at 16-17.) Petitioner forfeited thirty (30) days of behavior/work credit consistent with the schedule provided in Cal. Code Regs., tit. 15, § 3323 for a Division "F" offense. (Id. at 14, 17.)
Petitioner appealed on the ground that the specific rule that Petitioner was accused of violating was incorrect. At the second level of administrative appeal, the inmate appeals coordinator and warden agreed that the governing administrative code section was Cal. Code Regs., tit. 15, § 3005(a); however, because Petitioner had admitted to having an overly familiar relationship, the charge would not be dismissed. (Id. at 23-24.) A director's level appeal decision in January 2009 concluded that although Petitioner received all procedural due process in connection with the accusation and hearing, the wrong rule violation was cited. However, it was concluded that the error did not hinder Petitioner from preparing a defense to the charge and did not warrant dismissal of the charge. A modification was initiated to correct the designated administrative violation. (Mot., Ex. 1, doc. 14-1, 23-24.) On August 15, 2008, Petitioner's appeal was granted in part because the Chief Disciplinary Officer changed the designated rule that was violated to reflect conduct in violation of § 3005(a). (Id. at20.)
On February 13, 2009, the Riverside County Superior Court denied Petitioner's petition for writ of habeas corpus because the facts did not show a denial of due process; Petitioner had admitted the conduct that formed the basis of the disciplinary charge, and there was no evidence that his defense to that alleged conduct would have been different if the allegation had been that his conduct violated § 3005 rather than § 3400. (Pet. 21-27.)
Respondent argues that the case should be dismissed for failure to allege facts sufficient to state a due process claim.
The process due in a prison disciplinary proceeding includes: 1) written notice of the charges; 2) at least a brief period of time after the notice (no less than twenty-four hours) to prepare for the hearing; 3) a written statement by the fact finders as to the evidence relied on and reasons for the disciplinary action; 4) an opportunity for the inmate to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals; and 5) aid from a fellow inmate or staff member where an illiterate inmate is involved or where the complexity of the issues makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case. Wolff v. McDonnell, 418 U.S. 539, 564, 566, 570 (1974).
Further, where good-time credits are a protected liberty interest, the decision to revoke credits must be supported by some evidence in the record. Superintendent v. Hill, 472 U.S. 445, 454 (1985). The Court in Hill stated:
We hold that the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if "there was some evidence from which the conclusion of the administrative tribunal could be deduced...." United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S., at 106, 47 S.Ct., at 304. Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. See ibid.; United States ex rel. Tisi v. Tod, 264 U.S. 131, 133-134, 44 S.Ct. 260, 260-261, 68 L.Ed. 590 (1924); Willis v. Ciccone, 506 F.2d 1011, 1018 (CA8 1974).
Superintendent v. Hill, 472 U.S. at 455-56. The Constitution does not require that the evidence logically preclude any conclusion other than the conclusion reached by the disciplinary board; rather, there need only be some evidence in order to ensure that there was some ...