The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
) FINDINGS AND RECOMMENDATIONS TO ) DISMISS SOME CLAIMS IN THE ) PETITION (DOC. 1) WITHOUT LEAVE ) TO AMEND, DISMISS ONE CLAIM WITH ) LEAVE TO AMEND, AND GRANT ) PETITIONER LEAVE TO FILE A FIRST ) AMENDED PETITION ) OBJECTIONS DEADLINE: THIRTY (30) DAYS
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 through 304. Pending before the Court is the petition, which was filed in this Court on August 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; 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).
II. Standard of Decision and Scope of Review 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. at 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 an objectively unreasonable manner, or 2) extends or fails to extend a clearly established legal principle to a new context in an objectively unreasonable manner. 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 on the merits based on a factual determination will not be overturned on factual grounds unless it was objectively unreasonable in light of the evidence presented in the state proceedings. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Petitioner alleges he is an inmate of the California Correctional Institution at Tehachapi, California (CCIT), serving a sentence of twenty-eight years imposed on or about May 7, 1999. (Pet., doc. 1, 1.) On or about May 14, 2008, Petitioner was determined by prison authorities to be an associate of the Mexican Mafia (EME) prison gang. His validation as a gang associate resulted in his placement in the Secured Housing Unit (SHU) until he exercises his option to "debrief." (Id. at 31, 4.) When validated, Petitioner's release date was September 7, 2022. (Id. at 7.) Thereafter, a prison classification committee cancelled Petitioner's credits earned between January 25, 2010 and February 22, 2010 because pursuant to Cal. Penal Code 2933.6, Petitioner was not eligible to earn credits while housed in the SHU; before placement in the SHU, he was eligible to earn credits at a rate of fifteen percent. (Id. at 4, 7, 30.) Petitioner's release date was changed to November 30, 2024. (Id. at 24.)
Petitioner challenges the forfeiture and denial of credit he has suffered since January 25, 2010, as a result of the passage of an amendment to Cal. Pen. Code § 2933.6 that took effect on that date. (Id. at 31.) He contends that the duration of his confinement has been increased by over two years, or approximately twenty-seven months. (Id. at 8.)
Petitioner raises the following claims in the petition: 1) application of Cal. Pen. Code § 2933.6, as amended and effective as of January 25, 2010, to Petitioner, whose crime predated the amendment of the section, is a violation of the prohibition against ex post facto laws; 2) restrictions of privileges and forfeiture of credit not for actual misconduct, but rather solely for Petitioner's alleged association and communication with gang members, created an atypical and significant hardship on Petitioner in relation to the normal incidents of prison life and violated the First Amendment; 3) causing a loss of credit and extending the duration of Petitioner's confinement for the alleged misconduct of gang validation, both at the time of the validation and later at the time credit was forfeited, without first affording Petitioner specified procedures required by Wolff v. McDonnell, 418 U.S. 539 (1974) (notice of the consequences of gang association or validation, notice of the misconduct via charges or a rule violation report, an opportunity to investigate and collect documentary evidence or to present such evidence for his defense, an investigative employee because of his placement in solitary confinement, a reasonable opportunity to call witnesses in his behalf or question adverse witnesses through a telephone or through an assigned investigative employee, a hearing before a detached body such as a senior hearing officer to determine the facts of specified allegations of misconduct, and advice in writing of any guilty finding of specified misconduct with specification of the evidence relied upon and the credit loss for a specific act of misconduct) violated Petitioner's right to due process of law guaranteed by the Fourteenth Amendment; *fn1 and 4) because similarly situated groups of gang-validated inmates are housed in general population or other facilities where prison programming is available and are not deprived of their time credit or of procedural due process, singling out Petitioner and his "class," (id. at 10) violated Petitioner's right to the equal protection of the law guaranteed by the Fourteenth Amendment. (Id. at 4-14.)
Petitioner seeks a declaration from this Court that prison gang validations in California are punitive in nature and that Cal. Pen. Code § 2933.6 will be applied only to prison gang validations occurring after its effective date. He asks the Court to recognize a liberty interest in avoiding indefinite detention in the SHU and the deprivation of earned credit, and to declare that gang membership alone or simple association does not warrant a credit loss or an indefinite SHU term unless specific misconduct committed by Petitioner on behalf of the gang is identified. He seeks to require the California Department of Corrections and Rehabilitation (CDCR) to afford him full procedural due process with respect to prison gang validation or required source items relied on for validation, and to declare that religious and cultural symbols and expressions are not misconduct which can result in a credit loss. Petitioner seeks a restoration of his credits since January 25, 2010 and of his release date of September 7, 2022. Alternatively, he seeks a declaration that § 2933.6 is unconstitutional. (Id. at 15-16.)
The Court takes judicial notice of this court's docket in Tommy Corral v. F. Gonzalez, Warden, et al., case number 1:10-cv-00699-LJO-SMS-HC, which reflects that Petitioner filed a previous petition for writ of habeas corpus in this Court on April 21, 2010. *fn2 (Doc. 1, 1.) In the petition, Petitioner challenged the 2008 decision of the CDCR that validated him as an active prison gang affiliate. (Petition, doc. 1; findings and recommendations regarding Respondent's motion to dismiss, doc. 28, 1:23-24.) On January 20, 2011, the petition was dismissed with prejudice on Respondent's motion on the ground that the petition was untimely because filed beyond the statutory limitations period. (Doc. 28 at 2-7; order adopting, doc. 33.) Judgment for the Respondent was entered on the same date. (Doc. 34.)
IV. Successive Petition regarding Gang Validation Because the present 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).
Under the AEDPA, a federal court must dismiss a second or successive petition that raises the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). The Court must also dismiss a second or successive petition raising a new ground unless the petitioner can show that 1) the claim rests on a new, retroactive, constitutional right or 2) the factual basis of the claim was not previously discoverable through due diligence, and the new facts establish by clear and convincing evidence that but for the constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B).
However, it is not the district court that decides whether a second or successive petition meets these requirements, which allow a petitioner to file a second or successive petition. Section 2244(b)(3)(A) provides, "Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." In other words, a petitioner must obtain leave from the Ninth Circuit before he or she can file a second or successive petition in district court. See, Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must dismiss any claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application unless the Court of Appeals has given Petitioner leave to file the petition. 28 U.S.C. § 2244(b)(1). This limitation has been characterized as jurisdictional. Burton v. Stewart, 549 U.S. 147, 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001).
A disposition is "on the merits" if the district court either considered and rejected the claim, or determined that the underlying claim would not be considered by a federal court. McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (citing Howard v. Lewis, 905 F.2d 1318, 1322 (9th Cir. 1990)). A dismissal of a federal habeas petition on the ground of untimeliness is a determination "on the merits" for purposes of the rule against successive petitions, and a further petition challenging the same conviction is "second or successive" for purposes of 28 U.S.C. § 2244(b). McNabb v. Yates, 576 F.3d at 1029-30. Such a dismissal is a permanent and incurable bar to federal review of the underlying claims. Id. at 1030.
Here, the first petition concerning Petitioner's gang validation was dismissed on the ground that it was untimely. Thus, the petition was adjudicated on the merits. Petitioner present claims generally relate to the later conduct of CDCR staff in 2010 concerning conduct credits and the application of the amendment of Cal. Pen. Code § 2933.6 that took effect that year. However, in Petitioner's third claim, a procedural due process claim, Petitioner asserts that the procedures used at the gang validation were in violation of due process requirements. Thus, this claim, which refers to procedures at the time of the gang validation, includes at least in part a challenge to the constitutionality of Petitioner's gang validation. Such a claim is a successive claim to the extent it relates to the procedures observed in Petitioner's 2008 gang validation.
Petitioner's fourth claim relates to the allegedly unequal application of the gang validation statutes and regulations with respect to the segregated housing to which some gang validated prisoners are allegedly assigned. Although the extent to which this claim actually relates to Petitioner's previous gang validation proceeding is unclear, to the extent Petitioner's equal protection claim challenges Petitioner's 2008 gang validation, it is successive.
Petitioner makes no showing that he has obtained prior leave from the Ninth Circuit to file a successive petition attacking the 2008 gang validation. Accordingly, this court has no jurisdiction to consider Petitioner's renewed application for relief from the 2008 gang validation under section 2254 and must dismiss the petition to the extent it challenges the validation. See, Felker v. Turpin, 518 U.S. 651, 656-57; Burton v. Stewart, 549 U.S. 147, 152; Cooper v. Calderon, 274 F.3d 1270, 1274. If Petitioner desires to proceed in bringing these claims in a petition for writ of habeas corpus, he must file for leave to do so with the Ninth Circuit. See 28 U.S.C. § 2244(b)(3).
Accordingly, to the extent that the present petition challenges Petitioner's 2008 gang validation, it will be recommended that the petition be dismissed as successive.
V. Ex Post Facto Claim concerning Cal. Pen. Code
Petitioner argues that the application of Cal. Pen. Code § 2933.6 that took effect on January 25, 2010, violates the prohibition of ex post facto laws because his crime and gang validation ...