The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2007 disciplinary action taken against him for possession of a cell phone. Pending is respondent's July 7, 2011 motion to dismiss the petition for failure to state a cognizable federal habeas claim and, alternatively, for untimeliness. Petitioner has filed an opposition and respondent has filed a reply. For the reasons discussed below, the undersigned will recommend that respondent's motion be granted.
Petitioner is serving a state prison term of 17 years to life, plus five years, following a jury trial and conviction of second degree murder in the Fresno County Superior Court. (Dkt. No. 1 ("Ptn.") at 18*fn1 .)
In December 2007, petitioner was convicted in prison disciplinary proceedings of possessing a cell phone and sentenced to 60 days' forfeiture of credits.*fn2 (Ptn. at 30-32.) Plaintiff claimed that the phone was not his, and that he merely picked it up and handed it to a correctional officer at the officer's request. He requested the assistance of an investigative employee or staff assistant to help him develop his defense, but these requests were denied. (Id.) Petitioner alleges that prison officials denied him due process by not appointing him an investigative employee or a staff assistant and by finding him guilty based on insufficient evidence. He also claims that prison officials retaliated against him and violated his due process property rights by improperly confiscating his property, a television and a radio. Petitioner concedes that this property was later returned. (Ptn. at 2.) He seeks expungement of the 2007 disciplinary conviction, among other relief. (Ptn. at 16-28.)
Prison records indicate that, by the time the December 2007 credit loss was assessed, petitioner had already passed his minimum eligible parole date. (Dkt. No. 12-3 at 2-5.) In August 2008, petitioner was denied parole for two years. (Dkt. No. 12-3 at 3.) In August 2010, petitioner was denied parole for three years. (Dkt. No. 12-3 at 2.)
Petitioner administratively appealed the 2007 disciplinary action. His appeal was denied at the highest level of review on August 1, 2008. (Dkt. No. 12-2 at 37-42.) On November 12, 2008, petitioner filed a petition for habeas corpus challenging the 2007 conviction in the Solano County Superior Court; it was denied on January 8, 2009. (Dkt. Nos 12-2, 12-6 at 2.) On February 18, 2009, he filed a habeas petition in the California Court of Appeal, First District; it was summarily denied on February 26, 2009. (Dkt. No. 12-4, 12-6 at 6.) On May 14, 2009, petitioner filed a habeas petition in the California Supreme Court, which was denied as procedurally deficient on October 14, 2009. (Dkt. No. 12-6 at 9-29.)
On November 14, 2009, petitioner filed his first federal habeas corpus petition challenging the 2007 disciplinary conviction. In March 2010, he voluntarily dismissed that petition after respondent filed a motion to dismiss for failing to exhaust state remedies. Young v. Sisto, CIV S-09-3279 MCE CMK (E.D. Cal., closed March 26, 2010).
On May 18, 2010, petitioner filed a second habeas petition in the California Supreme Court, which was summarily denied on November 17, 2010. (Dkt. No. 12-7 at 2-67.)
On January 19, 2011, petitioner filed the instant petition.
III. Respondent's Motion to Dismiss
A. No cognizable federal habeas claim
Respondent first moves to dismiss the petition pursuant to Rule 4 of the Rules Governing § 2254 Cases. This court has authority under Rule 4 to dismiss a petition if it "plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court[.]"*fn3 Respondent argues that, as none of petitioner's claims affect the fact or duration of his confinement, petitioner is not entitled to federal habeas relief.
Specifically, as to petitioner's due process claim that prison officials improperly confiscated his property, respondent argues that the relief petitioner requests -- return of the property -- has already occurred, as petitioner concedes. Respondent further argues that petitioner's property claim "obviously does not relate to the fact or duration of his confinement, and therefore is not cognizable under § 2254." (Dkt. No. 12 ("Mtn.") at 3.)
As to petitioner's claim that he was improperly denied a staff assistant or investigative employee to assist in his defense to the 2007 charge of possessing a cell phone, respondent argues that plaintiff had no federal constitutional right to such assistance, citing Wolf v. McDonnell, 418 U.S. 539 (1974). In Wolf, the Supreme Court held that "[w]here an illiterate inmate is involved" or "the complexity of the issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case, he should be free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate substitute aid in the form of help from the staff or from a sufficiently competent inmate designated by the staff." Id. at 570. Here, ...