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Hung Duong Nguon v. James Walker

August 5, 2011



Petitioner is a state prisoner proceeding pro se with an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging a prison disciplinary conviction finding him guilty of indecent exposure. Before the court is respondent's motion to dismiss this action due to petitioner's failure to state a cognizable claim and for failing to first exhaust his habeas claims by fairly presenting them to the California Supreme Court. Petitioner has filed an opposition to the motion.


I. Respondent's Motion

A. The Amended Habeas Petition Fails to State a Cognizable Claim

Respondent argues that petitioner failed to meet the heightened pleading requirements applicable to federal habeas petitions when he failed to allege substantive facts in support of his claims. (Doc. No. 11 at 3.) Specifically, according to respondent petitioner failed to include the date of the prison disciplinary hearing at issue and failed to attach a copy of the rules violation report as an exhibit to his petition. (Id.)*fn1

Next, respondent argues that in this case petitioner's 90-day loss of time credits imposed as a result of the disciplinary conviction does not impact the fact or duration of petitioner's confinement. (Id. at 3-4.) According to respondent, petitioner is serving an indeterminate term of life in prison with the possibility of parole and that by 2008 petitioner had passed his minimum eligible parole date (MERD) and had received his first initial parole consideration hearing. (Id. at 4-5.) Thus, respondent argues, the statutory time credit earnings and losses do not affect the duration of petitioner's incarceration. (Id. at 5.) Respondent contends that when petitioner is released from prison depends solely on when the Board of Parole Hearings ("Board") finds him suitable for parole, what base term is set, and how much post-conviction credit the board elects to apply to the base term. (Id.) Therefore, respondent argues, petitioner is challenging a condition of his confinement, not the validity or length of his sentence. (Id.)

B. The Amended Petition is Unexhausted

Respondent next argues that petitioner failed to exhaust his habeas claims in state court because the habeas petition he filed with the California Supreme Court is procedurally deficient. (Id. at 6.) Respondent notes that in denying petitioner habeas relief the California Supreme Court cited to its decisions in In re Swain, 34 Cal. 2d 300, 304 (Cal. 1949) and People v. Duvall, 9 Cal. 4th 464, 474 (Cal. 1995). (Id.) Respondent argues that citation to those cases indicate that habeas relief is being denied by the state court based on the insufficiency of the pleading and due to the petitioner's failure to provide reasonably available documentary evidence to support his claims. (Id.) Respondent argues that petitioner could have cured these pleading defects by filing an amended petition with the California Supreme Court but failed to do so. (Id.) Because the California Supreme Court was not given a fair opportunity to address the merits of the claims, respondent argues, the pending amended federal habeas petition should be dismissed as unexhausted. (Id. at 7.)

II. Petitioner's Opposition (Doc. No. 12)

In response to respondent's assertion that he was assessed a 90-day loss of time credits due to the challenged prison disciplinary conviction, petitioner points out that he was also assessed nine months in the segregated housing unit (SHU) which, according to petitioner, was a form of "torture[.]" (Opp'n at 1.) As to respondent's argument that the prison rules violation has no impact on his life term confinement, petitioner argues that the prison disciplinary conviction impacts his eligibility for release on parole. (Id.) Petitioner notes that under current state law the denial of parole can result in another fifteen years of imprisonment before he is again considered for parole. (Id. at 1-2.) Petitioner asserts that a "90 days lost [sic] of credit may be construed as meaningless for a Lifer, but in Petitioner's case, this lost [sic] of 90-day is an astronomical factor that will eventually lead to a 15 years [sic] denial of parole." (Id. at 2.)

Finally, as to respondent's argument that he failed to exhaust his claims in state court, petitioner asserts that he is not an attorney and that he did his best under the circumstances to present his claims to the California Supreme Court. (Id. at 3.)


The exhaustion of claims in state court is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). The United States Supreme Court has held that a federal district court may not entertain a petition for habeas corpus unless the petitioner has exhausted state remedies with respect to each of the claims raised. Rose v. Lundy, 455 U.S. 509 (1982). A mixed petition containing both exhausted and unexhausted claims must be dismissed. Id.

A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1986). The state court has had an opportunity to rule on the merits when the ...

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