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Levi Besheer v. Fernando Gonzalez

November 6, 2012

LEVI BESHEER,
PETITIONER,
v.
FERNANDO GONZALEZ, WARDEN, CALIFORNIA CORRECTIONAL INSTITUTION, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS WITHOUT ) LEAVE TO AMEND (DOC. 1) ORDER DENYING PETITIONER'S MOTION FOR APPOINTMENT OF COUNSEL (DOC. 1) ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY ORDER DIRECTING THE CLERK TO SEND TO PETITIONER A CIVIL RIGHTS COMPLAINT FORM AND TO CLOSE THE CASE

Petitioner is a state prisoner proceeding pro se 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 November 5, 2012 (doc. 4). Pending before the Court is the petition, which was filed on September 13, 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.

Further, 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).

Here, Petitioner alleges that he is an inmate housed indeterminately in the security housing unit (SHU) of the California Correctional Institution at Tehachapi, California (CCI) serving a fifteen-year sentence imposed in 2008 in the Superior Court of the State of California, County of San Bernardino. (Pet., doc. 1 at 1, 3, 20, 28.) Petitioner complains of limitations on his credit-earning capacity and his conditions of confinement resulting from Petitioner's validation in 2009 as a gang member or associate within the California Department of Corrections and Rehabilitation (CDCR).

Petitioner alleges that since the enactment of Cal. Pen. Code § 2933.6, Petitioner's previously calculated release date in 2018 was extended to June 2020. (Id. at 22, 28, 44-45.) Petitioner alleges the following claims in the petition: 1) the CDCR unlawfully applied Cal. Pen. Code § 2933.6(a) in violation of the prohibition against ex post facto laws to Petitioner, who was validated as a gang member before the statute took effect; 2) application of § 2933.6 to Petitioner violated Petitioner's right to due process of law guaranteed by the Fourteenth Amendment because it interfered with sentencing orders, subjected Petitioner to forfeiture of credits, and resulted in loss or limitation of Petitioner's privileges, including visitation, property and canteen, employment or training, communications, and recreation and thereby denied Petitioner life and liberty; 3) Petitioner's right to due process of law was violated because the CDCR failed to allege or prove that any of the communications used to support Petitioner's gang validation resulted in criminal conduct, which caused the gang validation to be invalid; 4) the gang validation and resulting loss of credit-earning status violated double jeopardy because Petitioner's association is being used twice to punish Petitioner on a sentence already imposed; 5) Petitioner was deprived of due process of law because the gang validation was not true, and there was no substantial allegation of any association with a specific, valid gang member, or substantiating evidence, but rather only speculation and general allegations based on hearsay and false allegations of the associated gang; 6) Petitioner's right to due process of law was violated because Petitioner was not given notice that what was protected conduct of association could cause him to be criminally responsible; 7) Petitioner's right to due process of law was violated because depriving Petitioner of credits in the absence of criminal conduct does not affect the safety and security of the institution; 8) gang validation and deprivation of the opportunity to earn credit violated Petitioner's state constitutional protections; 9) deprivation of good time credit offends due process unless it is based on a finding that the prisoner had committed serious misconduct; and 10) validating a prisoner as a gang member and then requiring him to "debrief" violates Petitioner's rights under the Fifth Amendment. (Pet. 6-17.) Petitioner seeks an order vacating the validation finding, restoring Petitioner's release date of December 18, 2018, and expunging from Petitioner's C-file all references to the validation. (Id. at 18.)

Documents attached to the petition show that Petitioner's ex post facto claim was presented to the Superior Court of the State of California, County of Kern; the Court of Appeal of the State of California, Fifth Appellate District; and the California Supreme Court. (Pet. 22-26.)

II. Legal Standards

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).

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 presented in the State court proceeding.

Clearly established federal law refers to the holdings, as opposed to the dicta, of the decisions of the Supreme Court as of the time of the relevant state court decision. Cullen v. Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362, 412 (2000). It is thus the governing legal principle or principles set forth by the Supreme Court at the pertinent time. Lockyer v. Andrade, 538 U.S. 71-72.

A state court's decision contravenes clearly established Supreme Court precedent if it reaches a legal conclusion opposite to, or substantially different from, the Supreme Court's or concludes differently on a materially indistinguishable set of facts. Williams v. Taylor, 529 U.S. at 405-06. The state court need not have cited Supreme Court precedent or have been aware of it, "so long as neither the reasoning nor the result of the state-court decision contradicts [it]." Early v. Packer, 537 U.S. 3, 8 (2002). A state court unreasonably applies clearly established federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable. Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002); see, Williams, 529 U.S. at 407. An application of clearly established federal law is unreasonable only if it is objectively unreasonable; an incorrect or inaccurate application is not necessarily unreasonable. Williams, 529 U.S. at 410.

A state court's determination that a claim lacks merit precludes federal habeas relief as long as it is possible that fairminded jurists could disagree on the correctness of the state court's decision. Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011). Even a strong case for relief does not render the state court's conclusions unreasonable. Id. In order to obtain federal habeas relief, a state prisoner must show that the state court's ruling on a claim was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87. The standards set by § 2254(d) are "highly deferential standard[s] for evaluating state-court rulings" which require that state court decisions be given the benefit of the doubt, and the Petitioner bear the burden of proof. Cullen v. Pinholster, 131 S. Ct. at 1398. Further, habeas relief is not appropriate unless each ground supporting the state court decision is examined and found to be unreasonable under the AEDPA. Wetzel v. Lambert, ---U.S.--, 132 S.Ct. 1195, 1199 (2012).

In assessing under section 2254(d)(1) whether the state court's legal conclusion was contrary to or an unreasonable application of federal law, "review... is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S. Ct. at 1398. Evidence introduced in federal court has no bearing on review pursuant to § 2254(d)(1). Id. at 1400. Further, 28 U.S.C. § 2254(e)(1) provides that in a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. A state court decision that was on the merits and was based on a ...


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