The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a federal prisoner proceeding without counsel, has filed a habeas corpus petition pursuant to 28 U.S.C. § 2241. Petitioner is incarcerated at the Federal Correctional Institution in Herlong, California. Petitioner claims that his due process rights were violated in connection with a prison disciplinary hearing, and that there was insufficient evidence to support the guilty finding. Petitioner seeks an order expunging the disciplinary hearing report.
Pending before the court is respondent's motion to dismiss filed July 18, 2011. Respondent argues that this action should be dismissed because petitioner received all the process to which he was entitled, and the decision was supported by some evidence. After carefully reviewing the record, the undersigned recommends that the motion to dismiss be construed as an answer, and the petition for writ of habeas corpus be denied.
II. Exhaustion of Remedies
Petitioner has exhausted his administrative remedies. (Dkt. No. 1 at 41.)
Respondent filed a motion to dismiss the petition. Along with the motion, respondent submitted several exhibits, many of which are duplicates of those petitioner appended to the original petition. In the motion, respondent argues the merits of petitioner's claims rather than any procedural deficiency (such as lack of exhaustion or federal jurisdiction).
In dictum, the Supreme Court characterized as inappropriate a motion brought pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure in a habeas corpus proceeding. Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 269 n.14 (1978). However, motions to dismiss under Rule 4 of the Federal Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254, are expressly authorized. White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989). Rule 4 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. . . ." Rule 4, Fed. R. Governing § 2254 Cases.*fn2 The Ninth Circuit has allowed a respondent to file a motion to dismiss in lieu of an answer if the motion attacks the pleadings for a failure to exhaust state remedies or alleged violations of 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 motion to dismiss petition for failure to exhaust state remedies); White, 874 F.2d at 602-03 (using Rule 4 as procedural grounds to review 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 can file a motion to dismiss after the court orders a response. See Hillery, 533 F. Supp. at 1194 & n.12.
Rule 7 permits the court to direct the parties to expand the record by submitting additional materials relating to the petition and to authenticate such materials, which may include documents, exhibits, affidavits, and answers under oath to written interrogatories propounded by the judge. Rule 7(a), (b), Fed. R. Governing § 2254 Cases. One purpose of expanding the record is to enable the court to dispose of some habeas petitions that are not dismissed on the pleadings, but to do so without the time and expense required for an evidentiary hearing. Rule 7 Advisory Committee's Note, Fed. R. Governing § 2254 Cases. Here, respondent appended exhibits to the motion to dismiss which were not included with the petition. Accordingly, the court expands the record to include respondent's exhibits.
Review of the motion to dismiss and the opposition demonstrates that
there are no disputed issues of fact; rather, both parties' arguments
are based on application of the law. Therefore, the expansion of the
record permits summary disposition of the petition without a full
evidentiary hearing. See Garcia v. Chavez, 2010 WL 3715514, *2 (E.D.
Cal., Sept. 16, 2010)*fn3 (citation omitted) (28 U.S.C.
§ 2254 petition expanded to include document appended to motion to
dismiss). In view of the absence of a material issue of fact
concerning the authenticity or contents of the instant record, the
court will consider the merits of the petition. Accordingly, the court
construes the motion to dismiss to be an answer that responds to the
petition. Conde-Rodriguez v. Adler, 2010 WL 2353522, *4 (E.D. Cal.,
June 9, 2010) (motion to dismiss construed as an answer).*fn4
Thus, in resolving the instant action, the court considers
the petition, the motion to dismiss, and petitioner's
On December 18, 2009, petitioner was issued an incident report for "Possession of a Hazardous Tool (Homemade Charger)," in violation of 28 C.F.R. § 541.13.*fn5 (Dkt. No. 1 at 23.) Correctional Officer K. Wilson described the incident as follows. (Id.) "[A] homemade cell phone charger was found inside the personal locker assigned to [petitioner] . . . inside [petitioner's] laundry bag concealed in a sock." (Id.) Petitioner was provided written notice of the incident report on December 19, 2009. (Id.)
On March 3, 2010, petitioner was advised of his rights in connection with the disciplinary hearing for the incident report. (Dkt. No. 1 at 25.) On that same day, petitioner was given notice that the disciplinary hearing was delayed due to the referral of the incident report to the United ...