The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS THE INSTANT PETITION FOR WRIT OF HABEAS CORPUS [Doc. 13]
Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner challenges a disciplinary conviction on the grounds that the disciplinary was improperly classified, resulting in the loss of 120 days credit, instead of 30 days. Petitioner seeks relief for alleged violations of state law. Petitioner does not dispute the facts underlying his disciplinary conviction. Rather, he contends that the disciplinary was erroneously classified as a division C offense instead of a division F offense.
During a search of petitioner's prison cell, a brown/reddish pulpy substance that smelled of alcohol was found under the bottom bunk, in a plastic bag, in a cardboard box. The substance was determined to be inmate manufactured alcohol, also referred to as pruno. Petitioner was issued a CDC 115, Rules Violation Report charging him with possession of inmate manufactured alcohol. Petitioner appeared before a senior hearing officer for a hearing on the charge of possession of inmate manufactured alcohol. He was given the opportunity to be heard, and stated "[i]t was not alcohol, I had materials for pruno." Petitioner was found guilty of the rule violation, and he was assessed a 120 day loss of credit consistent with a division C offense under the California Code of Regulations, section 3323(e)(10).
Petitioner filed a petition challenging the classification of the disciplinary as a division C offense in Superior Court. The Superior Court denied the petition finding that the decision by the hearing officer was supported by "some evidence."
Petitioner next filed a petition raising the same claims in the California Court of Appeal. The California Court of Appeal for the Fourth District issued the last reasoned decision denying the claim stating:
The petition for writ of habeas corpus has been read and considered by Justices Benke, Huffman and Nares.
Petitioner is an inmate at Calipatria State Prison. During a search of his cell, officials found one gallon of inmate manufactured alcohol under the bottom bunk in a plastic bag. On March 31, 2010, petitioner was found guilty of a serious rules violation for possession of inmate manufactured alcohol, and was assessed 120 days forfeiture of credits.
Petitioner does not challenge the sufficiency of the violation, but contends that the offense should have been classified as a division "F" offense, resulting in a loss of only 30 days credit, instead of a division "C" offense. Petitioner contends that under the regulations, "fermentation or distillation of materials in a manner consistent with the production of alcohol" is a division "F' offense. (Cal. Code Regs., tit. 15, § 3323, subd. (h)(6).) However, petitioner was charged with and found guilty of "possession of inmate manufactured alcohol." The regulations provide that "[t]he physical possession of alcohol in an institution/facility" is a division "C" offense, with an attendant forfeiture of up to 120 days of credits." (Id., at § 3323, subd. (e)(10).) Petitioner fails to state a prima facie case for relief. (People v. Duvall (1995) 9 Cal.4th 464, 475.)
Finally, Petitioner filed a petition in the California Supreme Court challenging the disciplinary on the grounds that it was unlawfully classified as a division C offense instead of a division F offense. The Petition was summarily denied.
Petitioner filed this federal habeas petition, which raises the same challenge raised in the petitions filed in the state courts. Petitioner challenges the fact that the disciplinary was classified as a division "C" offense resulting in the loss of 120 days of credit, instead of a division "F" offense which carried a 30 day loss of credit.
On March 23, 2012, Respondent filed a motion to dismiss the petition for failure to state a cognizable claim. Petitioner did not file an opposition.
Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the face of the petition . . . that the petition is not entitled to relief." Rule 4 of the Rules ...