The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS WITHOUT LEAVE TO AMEND (DOC. 1)
ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND DIRECTING THE CLERK TO CLOSE THE CASE
Petitioner is a state prisoner proceeding pro se 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 May 11, 2012 (doc. 4). Pending before the Court is the petition, which was filed on May 1, 2012.
I. 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 at 491.
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). 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).
Petitioner alleges that he is an inmate of the Avenal State Prison (ASP) located at Avenal, California, serving a sentence of twenty-six years to life imposed in the Superior Court of the State of California, County of San Diego, for his 1991 conviction of first degree murder in violation of Cal. Pen. Code § 187. (Pet. 1.) Petitioner challenges a prison disciplinary finding that on September 27, 2009, he possessed a cellular phone, which resulted in the loss of thirty (30) days of time credit. (Id. at 9, 38.)
Petitioner alleges the following claims in the petition: 1) the failure to assign Petitioner an investigative employee pursuant to Cal. Code of Regs., tit. 15, § 3315(d) violated his rights to due process of law, equal protection of the laws, and California statutes and regulations; 2) the failure to permit Petitioner to call Correctional Officers Puente and Pedone as witnesses violated his rights to due process of law, equal protection of the laws, and California statutes and regulations; 3) the failure to admit the telephone as evidence at the hearing denied Petitioner's right to due process of law; 4) the hearing officer conducted a confusing, one-stage hearing in violation of a departmental operations manual and Petitioner's rights to due process of law and equal protection; 5) the hearing officer was biased because he a) stated that his officers did not lie, and b) made a highly subjective determination that inmate Escoto had not told the truth and was not believed by the other officers; and 6) Petitioner's rights to due process and equal protection under the Fifth and Fourteenth Amendments were violated when Petitioner was erroneously found guilty of a rules violation despite overwhelming evidence demonstrating Petitioner's innocence. (Pet. 4, 11-16.)
Petitioner alleges that on September 27, 2009, Correctional Officers Bradley, Puente, and Pedone searched Petitioner's dormitory area and the persons of all occupants of the area, including Petitioner. Petitioner alleges that although this was unknown to him, as searching staff members approached, inmate Escoto removed a cellular phone from his possession and tossed it over a bunk and into a lidless box placed under Petitioner's bunk. (Pet. 9.) When the telephone was discovered, Escoto explained to staff that he had placed the phone where it was found. Escoto also offered to demonstrate ownership of the phone with information concerning its security code and personal pictures stored on the telephone. Escoto described the telephone, and the inmates were told that Escoto would be charged with possessing it in violation of the rules. (Id. at 9-10.)
Petitioner was charged with the violation. Correctional Officer T. Bradley wrote a rules violation report in which he stated he found the telephone "secreted in a box of legal material owned by Inmate Dakessian" that was located between Petitioner's locker and his assigned bunk. (Pet. 35.) Petitioner's request for an investigative employee was denied because the issues were not complex, Petitioner's housing status was not adversely affected, and Petitioner had the opportunity to collect and present evidence necessary for an adequate presentation of a defense. (Id. at 36.) Petitioner's request for witnesses was granted.
Inmate Escoto was asked regarding the possession of a telephone. Escoto testified he was visiting the dorm when officers entered, which caused him to become afraid and throw the phone around his bunk area. (Id.) Correctional Officer Bradley also testified. When asked if he had seen the telephone in Petitioner's hand, Bradley replied that he had not. (Id.) The hearing officer stated that the telephone had been lost. (Id. at 41.)
Following the conclusion of the hearing, Petitioner complained that he had additional questions to ask Officer Bradley; he was allowed to question Bradley further. Bradley testified that he, not Officer Puente, had found the phone; Officer Bradley assumed that Petitioner's locker was across, not by, his bed; Petitioner's legal material was in a box; it was possible that if the telephone had been thrown, it could have fallen into the box; and inmate Escoto had approached Officer Bradley and had claimed ownership of the telephone. (Id. at 37-38.) The hearing officer indicated that he considered the additional testimony and determined that there was no evidence to warrant overturning the guilty finding. (Id. at 38.)
The hearing officer found Petitioner guilty of the violation based on Officer Bradley's written report of finding the telephone secreted in Petitioner's box of legal materials. With respect to Escoto's claim of ownership of the telephone, the hearing officer wrote the following:
Although Inmate Escoto testified, alleging the phone was his, all the surrounding circumstances as to how things transpired indicate that neither the Reporting Employee nor the other officers believed the witnesses (sic) allegations, and therefore; (sic) issued the Rules Violation Report to Inmate Dakessian after the phone was discovered secreted in a box of legal material belonging to inmate Dakessian. (Id. at 37.)
Petitioner attempted to exhaust administrative remedies, but his administrative appeal was deemed untimely. Despite the prison's rejection of his appeal, Petitioner sought to complete the administrative review process because he was limited by ill health and had been the victim of an assault, which caused him to be moved to a different facility and ultimately resulted in the loss of pertinent paperwork. (Id. at 43-52.)
Petitioner sought habeas corpus from the state courts. The Kings County Superior Court denied the petition on the grounds that some evidence supported the decision. (Id. at 18-19.) The Court of Appeal denied the petition and further stated that Petitioner failed to exhaust his administrative remedies. *fn1 The California Supreme Court denied a habeas petition summarily. (Id. at 20-24.)
III. Failure to State Facts Warranting Relief
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 to the petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997).
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 only 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); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam). Federal habeas relief is not available to retry a state issue that does not rise to the level of a federal constitutional violation. Wilson v. Corcoran, 562 U.S. at 16; Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Thus, alleged errors in the application of state law are not cognizable in federal habeas corpus. Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002). In a habeas proceeding, this Court is bound by the California Supreme Court's interpretation of California law unless it is determined that the interpretation is untenable or a veiled attempt to avoid review of federal questions. Murtishaw v. Woodford, 255 F.3d 926, 964 (9th Cir. 2001).
Title 28 U.S.C. § 2254 provides in pertinent part:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence ...