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Michael Mccann v. Rick Hill

December 21, 2011

MICHAEL MCCANN, PETITIONER,
v.
RICK HILL, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 4, 2011, respondent filed a motion to dismiss, arguing that the claims set forth in the federal habeas petition pending before this court fail to state a cognizable claim for habeas relief and are unexhausted and procedurally barred. Petitioner has filed an opposition to the motion, and respondent has filed a reply.

BACKGROUND

On May 19, 2011, petitioner commenced this action by filing a petition for writ of habeas corpus, challenging a prison rules violation report ("RVR") and a thirty-day time credit forfeiture he received in 2009 following a prison disciplinary conviction on the charge of over-familiarity towards staff. Petitioner claims, inter alia, that there was no reliable evidence presented to support the finding by prison officials that he was guilty of that prison disciplinary violation. In terms of relief, petitioner seeks dismissal of the RVR. (Pet. at 5.)

Petitioner unsuccessfully challenged the RVR by filing an administrative appeal at his institution of incarceration. Subsequently, he filed three petitions for writ of habeas corpus in state court. First, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court. That court denied the petition as procedurally barred and for failure to state a prima facie case for relief. Next, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. The state appellate court denied that petition on the merits. Finally, petitioner filed a petition for writ of habeas corpus with the California Supreme Court. The California Supreme Court denied that petition with a citation to In re Dexter, 25 Cal. 3d 921, 925 (1979). (Resp't's Mot. to Dismiss Exs. 3-7.) As noted above, on May 19, 2011, petitioner filed his federal habeas petition in this court.

RESPONDENT'S MOTION TO DISMISS

I. Respondent's Motion

Respondent moves to dismiss the pending petition, arguing that the claims set forth therein fail to state a cognizable claim for federal habeas relief. Respondent also argues that the California Supreme Court did not reach the merits of petitioner's claims as reflected by that court's citation to In re Dexter, 25 Cal. 3d 921, 925 (1979) in denying relief, and therefore, petitioner has failed to properly exhaust his habeas claims in state court. Finally, respondent argues that the claims set forth in the pending federal petition are procedurally barred because the California courts rejected those claims based on California's administrative exhaustion rule, an independent and adequate state law ground. (Resp't's Mot. to Dismiss at 3-10.)

II. Petitioner's Opposition

In opposition to respondent's motion to dismiss, petitioner argues that his petition states cognizable claims for federal habeas corpus relief. Petitioner also argues that he has done all that he can do within the state judicial process to obtain habeas relief. Finally, petitioner argues that the RVR at issue in this action was not supported by any evidence and should be dismissed. (Petn'r's Opp'n to Resp't's Mot. to Dismiss at 5-13.)

III. Respondent's Reply

In reply, respondent argues that petitioner has failed to refute any of the grounds for dismissal set forth in the pending motion to dismiss. Respondent also reiterates that petitioner's claims are not cognizable, petitioner has failed to properly exhaust his claims in state court and petitioner's claims are procedurally barred. (Resp't's Reply at 1-3.)

ANALYSIS

Even assuming for the sake of argument that the claims set forth in the pending petition are cognizable, the court will nevertheless recommend that the petition be dismissed because petitioner's claims are ...


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