The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS WITHOUT LEAVE TO AMEND (DOC. 1) ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY AND DIRECTING THE CLERK TO CLOSE THE ACTION
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. 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 December 6, 2012 (doc. 5). Pending before the Court is the petition, which was filed on November 15, 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; 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). However, 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 of the California Substance Abuse Treatment Facility serving a sentence of "30 years to life, plus life, plus 16 years" imposed in the Superior Court of the State of California, County of San Diego, on January 4, 1991. (Pet., doc. 1, 1, 16.) Petitioner does not indicate whether his life term is with or without parole. Petitioner was assessed a loss of 360 days of good time credit as a result of having been found guilty of possessing an inmate-manufactured weapon in prison. Petitioner challenges the adequacy of the notice given to him of the re-issued disciplinary alleging the notice was a violation of his right to due process of law because it was one day late under the time limit established by California law, namely, Cal. Admin. Code, tit. 15, § 3320(a).*fn1 Petitioner affirmatively states that he does not contend that he was prejudiced in any respect by the allegedly late delivery of the notice. (Id. at 20.)
II. Failure to State Facts Entitling Petitioner to Relief for a Violation of the Due Process Clause 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 in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
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. - , 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). 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) (an ex post facto claim challenging state court's discretionary decision concerning application of state sentencing law presented only state law issues and was not cognizable in a proceeding pursuant to 28 U.S.C. § 2254); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). The Court accepts a state court's interpretation of state law. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). In a habeas corpus proceeding, this Court is bound by the California Supreme Court's interpretation of California law unless the interpretation is deemed untenable or a veiled attempt to avoid review of federal questions. Murtishaw v. Woodford, 255 F.3d 926, 964 (9th Cir. 2001).
Here, Petitioner argues that the state law time limit for service of the disciplinary report was violated. Petitioner cites Hicks v. Oklahoma, 447 U.S. 343 (1980) as authority for the proposition that a state's failure to follow its own law results in a due process violation. (Pet. at 20.) However, Hicks may be distinguished from the present case because there the petitioner was deprived of a statutory entitlement to the exercise of the jury's discretion with respect to the penalty to be imposed for commission of a crime. Here, the matter in dispute is an extra day's notice that is acknowledged not to have been prejudicial. Further, absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief. Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). Thus, Hicks is not determinative.
Here, no fundamental unfairness appears in the instant case to transform what is essentially a state law violation into a prejudicial violation of due process. Thus, Petitioner's state law claim concerning a failure of one day's notice of a disciplinary violation will be dismissed.
Because the defect in Petitioner's state law notice claim is based not on a dearth of any factual allegations, but rather on the nature of the claim, it does not appear that Petitioner could allege a tenable claim for relief in a proceeding pursuant to § 2254 if leave to amend were granted. ...