The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RE: RESPONDENT'S MOTION TO DISMISS THE PETITION (DOCS. 22, 1, 11)
FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO
DISMISS, DISMISS THE ACTION, AND DECLINE TO ISSUE A CERTIFICATE OF
APPEALABILITY (DOC. 1)
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. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is Respondent's motion to dismiss the petition on the grounds of a failure to exhaust state court remedies and procedural default. The motion was filed on June 18, 2012, and Petitioner filed opposition with a declaration on July 9, 2012. No reply was filed.
I. Proceeding by a Motion to Dismiss
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).
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court...."
The Ninth Circuit has allowed respondents to file motions to dismiss pursuant to Rule 4 instead of answers if the motion to dismiss attacks the pleadings by claiming that the petitioner has failed to exhaust state remedies or has violated the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss a petition for failure to exhaust state remedies).
Further, a respondent may file a motion to dismiss after the Court orders the respondent to respond, and the Court should use Rule 4 standards to review a motion to dismiss filed before a formal answer. See, Hillery v. Pulley, 533 F. Supp. 1189, 1194 & n.12 (C.D.Cal. 1982).
In this case, upon being directed to respond to the petition by way of answer or motion, Respondent filed the motion to dismiss. The material facts pertinent to the motion are to be found in the pleadings and in copies of the official records of state prison and judicial proceedings which have been provided by the parties, and as to which there is no factual dispute.
The Court will therefore review Respondent's motion to dismiss pursuant to its authority under Rule 4.
Petitioner, an inmate of the California Correctional Institution at Tehachapi, California (CCI), challenges his validation as an associate of the Black Guerrilla Family (BGF), which occurred on December 31, 2009, while Petitioner was an inmate of the California State Prison at Sacramento (CSP-SAC). (Pet., doc. 1, 18.)
Petitioner raises the following claims in the petition: 1) officials of the California Department of Corrections and Rehabilitation (CDCR) have abused the prison gang validation procedure as a ruse to punish the Petitioner for exercising his constitutional right to file complaints regarding staff's criminal behavior within the CDCR (id. at 5, 21,); 2) CDCR and prison officials illegally read Petitioner's confidential legal materials and work product concerning pending litigation against other CDCR agents in order to start a prison gang validation proceeding as a ruse to punish the Petitioner for filing grievances (id. at 7, 25); 3) CDCR and prison officials corruptly conspired to abuse the prison gang validation procedures as a ruse to punish the Petitioner for filing inmate grievances against CCI staff in violation of the First Amendment and without a legitimate or valid penological purpose (id. at 29-30, 69-70);
4) prison officials used the gang validation procedure as a ruse to punish Petitioner for reading Black militant literature which Petitioner had a First Amendment right to read (id. at 31); 5) CDCR and prison officials corruptly conspired to have Petitioner validated as an active associate of the BGF and to retain him in the Security Housing Unit (SHU) based on false, unreliable, and misleading information, knowing that it would subject Petitioner to a risk of retaliation and retribution from other groups in prison who are opposed to the BGF, which resulted in the change of Petitioner's release date from June 2013 to October 2016 (id. at 32, 54); 6) Petitioner has a protected liberty interest not to be placed into the SHU for an indeterminate term based on a false and retaliatory prison gang validation which resulted from inadequate procedural safeguards in the validation process and in the procedures governing periodic review of inmates assigned to indeterminate terms in the SHU for gang affiliation, and Petitioner's right to due process of law was violated by an indeterminate placement in the SHU without a determination that the information relied upon had some indicia of reliability, without the support of some evidence in the record, and without an opportunity to present his views to the decision maker (id. at 55, 57-58, 66-68); and 7) Petitioner was subjected to an ex post facto law by the application to him of Cal. Pen. Code §§ 2933(A)-(B) and 3057(D), as effective on January 25, 2010, which rendered gang-validated SHU inmates ineligible to earn time credits (id. at 56, 61-62).
Petitioner requests the following relief: expungement from his "C" file of the false, unreliable and insufficient information used to validate his active association with the BGF; release from the SHU; and return of various materials allegedly taken wrongfully by CDCR agents. (Pet. 72-73.)
III. State Administrative and Judicial Proceedings In 2010, Petitioner filed in prison what he described as a citizen's complaint concerning employee conduct pursuant to Cal. Pen. Code § 832.5 and Cal. Code Regs., tit. 15, §§ 3004 and 3391.*fn1 The complaint was filed against Correctional Officers Tyree, Turmezei, and unnamed "Does" for conspiring to retaliate against Petitioner for having reported staff misconduct by wrongfully having Petitioner placed into administrative segregation based on false and misleading information concerning prison gang activities. (Mot., Ex. A, doc. 22-4 at 22.) Petitioner requested that the matter be investigated by state and federal authorities and that Petitioner be awarded two million dollars in damages for retaliation. (Id.) Petitioner also asked that the matter be processed as a staff complaint. (Id. at 30-31.)
Petitioner's complaint was denied at the second level on March 8, 2010. (Id. at 23, 32.) A memorandum dated March 8, 2010, that was directed to Petitioner concerning the response informed Petitioner that the appeal was being processed as a staff complaint appeal inquiry. (Id. at 32.) An interview with Petitioner and a confidential inquiry into the validation information was conducted, and thus the appeal was partially granted; however, the conclusion was that staff did not violate CDCR policy. The memorandum informed Petitioner that all staff personnel matters were confidential in nature and that if Petitioner wished to appeal the decision, he had to appeal through the Director's level of review. (Id.)
Petitioner indicated his dissatisfaction and requested a Director's Level Review. (Id. at 23-27.) At the Director's Level, Petitioner's appeal was denied. (Mot., ex. A, doc. 22-4 at 45, doc. 22-5 at 1.)
Petitioner filed a petition for writ of habeas corpus in the Superior Court of the State of California for the County of Kern (KCSC) on July 22, 2010, in which he challenged the 2009 gang validation. (Mot., ex. F.) The grounds stated in the petition were 1) prison officials abused the gang validation procedure to retaliate against Petitioner for complaints concerning CDCR staff misconduct; 2) CDCR staff illegally read and searched Petitioner's confidential legal materials and work product in order to start a prison gang validation procedure as a ruse to punish the Petitioner for having filed grievances; 3) the abuse of the prison gang validation procedure violated Petitioner's First Amendment right to read any literature that did not affect a legitimate penological interest, including Black militant literature; and 4) CDCR prison officials corruptly conspired to have Petitioner validated as an active prison gang associate of the BGF and retained him in the SHU based on false, unreliable, and misleading information. Petitioner requested that the false and unreliable information be expunged from his "C" file, his literature be returned, and that Petitioner be released from the SHU. (Mot., ex. F, doc. 22-14 at 2-19.)
The KCSC denied the petition. (Mot., Ex. E, Ord. dated September 22, 2010 at 3-4.) In the order denying the petition, the KCSC concluded that various items of evidence were useable sources to sustain the gang validation. (Id. at 2.) Near the end of the court's discussion of the evidence used to validate Petitioner's gang association, the KCSC stated the following:
Other staff complaints (sic) found no evidence of retaliation against petitioner by corrections officials. Moreover, petitioner failed to exhaust his administrative remedies concerning the gang validation. Pursuit of and exhaustion of administrative remedies is a prerequisite to seeking habeas corpus relief. In re Dexter (1979) 25 Cal.3d 921, 925, In re Muszalski (1975) 52 Cal.3d 500, 508. The June 16, 2010 Directors' Level decision dealt with a staff complaint regarding fabrication of the gang validation by Officers Turmezei and Sgt. Tyree. That decision opined that petitioner is not privy to staff complaint investigatory findings since they are privileged under P.C. Sections 832.7 and 832.8 due to their (sic) confidential personnel decisions.
It did not directly address the evidence to sustain the validation. However, even if petitioner exhausted his administrative remedies, the court finds more than sufficient evidence to sustain the gang validation.
So long as there is evidence to sustain the gang validation, this court will not disturb it.
In re Lucero (1992) 4 Cal.App.4th 572, 575, Cato v. Rushen (1987) 824 F.2d 703, 705 (9th Cir.). Contrary to petitioner's allegation that he cannot belong to two gangs, the evidence shows otherwise.
On the basis of the foregoing, the petition for writ of habeas corpus is accordingly denied. (Id.)
Petitioner sought reconsideration, which the KCSC denied on November 29, 2010, ruling that no new evidence was submitted to warrant a change of position, and noting that the court was aware of no authority that permitted a court to ...