The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a former state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges that his due process rights were violated by an April 4, 2009 prison disciplinary violation finding him guilty of threat of force or violence against a public official/peace officer. (Dkt. No. 1 at 4-6.) Pending before the court is respondent's motion to dismiss the petition pursuant to Rule 4 of the Rules Governing § 2254 Cases. Petitioner filed an opposition, and respondent did not file a reply. For the reasons stated below, the court recommends that respondent's motion to dismiss be denied.
On April 4, 2009, petitioner was issued a rules violation report for threatening staff pursuant to California Code of Regulations, title 15, section 3003. (Dkt. No. 27-1 at 2.)
On May 8, 2009, petitioner attended a parole revocation hearing for threats against public officials, which was charged under California Code of Regulations, title 15, section 3003. (Dkt. No. 27 at 2.) The Board found that the behavior was improperly classified because correctional officers are not elected officials or other persons described under section 3003. (Id.) The charges were dismissed, but the Board noted that petitioner's threats could have been coded under other sections of the California Code. (Id. at 2-3.)
On May 15, 2009, the rules violation hearing continued, and petitioner appeared. (Dkt. No. 27-1 at 5.) Petitioner was informed that the evidence given in the disciplinary report also justified the charges of threatening staff under § 3005, and petitioner was offered a postponement of 24 hours to consider this additional information. (Id.) Petitioner waived any delay, stating that he understood the reports as well as these charges, and that he was prepared to begin the hearing. (Id.) Petitioner also stated that the Board "had already explained to him that the CCR of 3003 on his [rules violation report] should have been 3005." (Id.) Petitioner was found guilty of threat of force or violence against a public official/peace officer under an alternative section, California Code of Regulations, title 15, section 3005, and assessed a 150-day credit forfeiture. (Dkt. No. 27-1 at 5.)
On February 7, 2010, petitioner appealed the rules violation. (Dkt. No. 27-1 at 10.) The appeal was denied in a Director's Level Decision issued July 28, 2010. (Id. at 15.) On March 2, 2011,*fn1 petitioner filed a petition for writ of habeas corpus in the Kings County Superior Court, alleging due process violations in connection with the rules violation. (Dkt. No. 27-1 at 18-23.) On May 27, 2011, the petition was transferred to the Marin County Superior Court, because the petition should have been filed in the county of petitioner's incarceration where the alleged incidents occurred. (Dkt. No. 27-1 at 116.)
The petition for writ of habeas corpus was filed in the Marin County Superior Court on June 7, 2011. (Dkt. No. 27-1 at 18.) On July 1, 2011, the Marin County Superior Court denied the petition, stating petitioner failed to state a prima facie case for relief, citing People v. Duvall, 9 Cal. 4th 464, 474 (1995).*fn2
Petitioner did not file a petition in the California Court of Appeals.
Petitioner filed a petition for writ of habeas corpus*fn3
in the California Supreme Court on August 24, 2011. (Dkt. No.
27-2 at 2-8.) On September 21, 2011, the California Supreme Court
denied the petition without comment. (Dkt. No. 1 at 19; 27-2 at
The instant petition was filed on October 13, 2011. (Dkt. No. 1 at 7.)
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." Rule 4, Rules Governing Section 2254 Cases; see also White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (meritorious motions to dismiss permitted under Rule 4); Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) (Rule 4 "explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated"). However, a petition for writ of 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). "Summary dismissal is appropriate ...