The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISMISSING THE PETITION FOR
WRIT OF HABEAS CORPUS WITHOUT LEAVE TO AMEND (DOC. 1)
ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
ORDER DIRECTING THE CLERK TO CLOSE THE ACTION
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. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on April 9, 2012 (doc. 6).
Pending before the Court is the petition, which was filed on February 21, 2012. Petitioner alleges that he is an inmate of the Avenal State Prison (ASP), which is located within the Eastern District of California. He is serving a sentence of fifteen years to life imposed by the Los Angeles Superior Court in 1984 for second degree murder. Petitioner challenges a disciplinary finding made by the authorities at ASP that on July 16, 2009, Petitioner wilfully engaged in a riot there in violation of Cal. Code Regs., tit. 15, § 3005(d)(3). Petitioner argues that he suffered a denial of due process of law because not all relevant evidence was considered, and consideration of relevant evidence would exonerate Petitioner. Petitioner complains of the hearing officer's failure to consider various matters, including another inmate's having been charged on the basis of the same evidence; a report concerning an inmate named Reyes that was authored by Officer Lewis, who reported on a fight between inmates Reyes and Castro; and medical reports that showed that Petitioner suffered no injuries, whereas all participants in the riot suffered injuries. Petitioner argues he was mistaken for one of the two fighting inmates. (Pet. 1-4.)
Petitioner seeks to have the disciplinary finding reversed and expunged from his prison record as well to have ninety (90) days of earned behavior credit restored. (Pet. 19.)
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 in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
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 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).
Plaintiff claims that in the course of the proceedings resulting in the disciplinary finding, he suffered violations of his constitutional rights. Because violations of the Constitution are alleged, it is concluded that the Court has subject matter jurisdiction over the instant petition.
Petitioner names the warden of his institution of confinement and thus has named as a respondent a person who has custody of the Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
Accordingly, this Court has jurisdiction over this action and over Respondent James D. Hartley, Warden of Avenal State Prison.
II. Screening the Petition
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient. Rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
The Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001). However, a petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
Here, the Court has reviewed the petition and exhibits, which include apparently complete documentation of the disciplinary proceedings and Petitioner's exhaustion of the administrative remedies available to him within the California Department of Corrections and Rehabilitation (CDCR). (Pet. 24-51.) It also includes the decisions of the Kings County Superior Court (KCSC) and the California Court of Appeal for the Fifth Appellate District (CCA) denying Petitioner's petition for writ of habeas corpus as well as the summary denial of Petitioner's habeas petition by the California Supreme Court (CSC). (Id. at 52-62.)
Other than Petitioner's denial of having participated in the riot, there do not appear to be any disputed material facts with respect to the disciplinary proceedings or the evidence underlying the finding. Petitioner has provided an apparently complete record of the proceedings in question and has set forth multiple arguments concerning the proceedings and the evidence. A sufficient record of the decisions of the state courts has been provided. It does not appear ...