ORDER GRANTING MOTION TO DISMISS PETITION FOR HABEAS CORPUS AND ADOPTING REPORT AND RECOMMENDATION
MARILYN L. HUFF, District Judge.
Carl Gray ("Petitioner"), proceeding pro se and in forma pauperis, filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On July 10, 2013, the magistrate judge issued report and recommendation to deny the petition and to deny the Respondent's motion to dismiss. After the Court granted extensions for objections, on August 21, 2013, Respondent filed an objection arguing that the Court should dismiss the petition on alternative grounds. (Doc. No. 33.) On August 29, 2013, Petitioner filed his objection to the report and recommendation. For the reasons set forth below, the Court adopts the report and recommendation and overrules both Petitioners' and Respondents' objections.
Petitioner is currently serving a twenty-seven years to life sentence in state prison pursuant to a November 10, 1983, conviction of one count of first degree murder with the use of a firearm, one count of second degree murder, and one count of kidnapping. (Doc. No. 1.) In 1989 and 1990, while Petitioner was housed at Folsom State Prison, two different confidential informants identified him as a suspected "Blood disruptive group member with the alias of Killer.'" (Lodgment No. 1, In re Gray, Case No. D061190, Att'y Gen. Informal Resp. Ex. 3, Confidential Information Disclosure Form CDC 1030 (Aug. 10, 2010).) As early as 1990, CDCR began documenting Petitioner as a suspected member of the Blood disruptive group. (Id. Ex. 4, Notice of Critical Case Information - Safety of Persons Forms CDC 812; id. Ex. 5, General Chrono (Nov. 27, 1990).) Petitioner contends that he is not a member of the Bloods. (Lodgment No. 1, In re Gray, Case No. D061190, Att'y Gen. Informal Resp. 2.)
On May 10, 2009, Petitioner filed an administrative appeal requesting an investigation into his current gang association status and that the results of the investigation be provided to the ICC. (Doc. No. 13 "Resp't's Mot. Dismiss" at 8; see Lodgment No. 1, In re Gray, Case No. D061190, Att'y Gen. Informal Resp. Ex. 24, Inmate/Parolee Appeal Form (submitted May 10, 2009).) Sergeant Williams conducted an investigation into Petitioner's gang status and found no current evidence of a gang association. (Lodgment No. 1, In re Gray, Case No. D061190, Att'y Gen. Informal Resp. Ex. 25, Informational-Gang Chrono (June 8, 2009).) Williams referred the matter to "ICC/UCC to make any appropriate changes regarding Inmate Gray's gang status." (Id.) Williams' response indicated that an investigation had been conducted, and a chrono was placed in Petitioner's file. (Id. Ex. 24 at 1 (dated June 10, 2009).)
On April 24, 2010, Petitioner constructively filed a petition for writ of habeas corpus in state court alleging that prison officials failed to purge his C-file of any information relating to his association with the Bloods after determining, on June 8, 2009, that Petitioner was not associated with the Bloods. (Lodgment No. 2, Gray v. Uribe, Case No. EHC01359 (Cal. Super. Ct. Imperial Cnty. filed Apr. 30, 2010) (Petition at 3-5).) Petitioner challenged a December 3, 2009 ICC review that referred to him as a "Bloods" associate. (Id. at 11.) The superior court denied Petitioner's petition on July 21, 2010, finding that Petitioner did not exhaust his administrative remedies because he never appealed the December 3, 2009 ICC decision. (Lodgment No. 3, In re Gray, Case No. EHC01359, at 2.)
On July 29, 2010, Gray submitted another administrative appeal contending that the ICC at Centinela improperly noted on July 8, 2010, that he is a member of the Bloods. (Lodgment No. 1, In re Gray, Case No. D061190, Att'y Gen. Informal Resp. Ex. 26, Inmate/Parolee Appeal Form (July 29, 2010).) He relied on the findings from the 2009 investigation and requested the ICC to make "the appropriate changes" regarding his gang status. (Id.) Petitioner's appeal was screened out at the informal level as untimely. (Id.)
Petitioner attempted to submit his administrative appeal to the next level of review on August 11, 2010. (Id.; Lodgment No. 4, Gray v. Uribe, Case No. EHC01560 (Cal. Super. Ct. Imperial Cnty. filed Nov. 3, 2011) (Petition Ex. H).) Petitioner explained that it was difficult for him to challenge CDCR's documentation of Petitioner as a Blood gang member because he lacked education to address the complex matter. (Lodgment No. 4, Gray v. Uribe, Case No. EHC01560 (Petition Ex. J).)
The appeals coordinator addressed the screening on August 16, 2010, and stated, "[I]f you would like to pursue this matter further, you must submit an explanation and supporting documentation explaining why you did not or could not file your appeal timely." (Lodgment No. 1, In re Gray, Case No. D061190, Att'y Gen. Informal Resp. Ex. 27, Memorandum Re: Screening at the Informal Level (Aug. 16, 2010).) Petitioner persisted and on August 29, 2010, he stated that "it has been beyond the scope of my intellectual ability prior to 03/30/09 to address this [timeliness] issue." (Lodgment No. 4, Gray v. Uribe, Case No. EHC01560 (Petition Ex. J).) Respondent states that after August 16, 2010, prison officials at Centinela did not accept Petitioner's appeal for further processing. (Doc. No. 13, Resp't's Mot. Dismiss at 5.)
On October 24, 2011, Petitioner constructively filed a second petition for writ of habeas corpus in state court challenging the reliability of confidential information in his central file and contending that prison officials designated him as a member of the Bloods based on unreliable and insufficient information. (Lodgment No. 4, Gray v. Uribe, Case No. EHC01560 (Petition at 3-4).) Petitioner asserted that on July 8, 2010, he appeared before the ICC at Centinela and discovered that he was still being referred to as a Blood, even though on June 8, 2009, the investigator found no evidence of his affiliation with the Bloods. (Id.) On December 7, 2011, the court denied the petition. (Lodgment No. 5, In re Gray, Case No. EHC01560, order at 1 (Cal. Super. Ct. Imperial Cnty. Dec. 7, 2011).)
On January 4, 2012, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal; there, he alleged that prison officials violated prison rules, the Due Process Clause, and the Eighth Amendment by designating him as a Bloods gang member. (Lodgment No. 6, Gray v. Uribe, [Case No. D061190] (Cal.Ct.App. filed Jan. 10, 2012) (Petition at 3-4).) Respondent filed an informal response, and Petitioner filed an informal reply. (Lodgment No. 1, In re Gray, Case No. D061190, Att'y Gen. Informal Resp. 1; Lodgment No. 7, In re Gray, Case No. D061190.) On April 11, 2012, the court denied Petitioner's petition finding that he failed to explain why it took twenty years to challenge the gang designation. (Lodgment No. 7, In re Gray, Case No. D061190.) The court concluded that Petitioner's designation was for "identification purposes only"; he was not adversely affected by the designation; and he failed to show a constitutional violation or that he was entitled to habeas relief. (Id.) Petitioner filed a petition for review in the California Supreme Court complaining that prison officials did not comply with the California Code of Regulations in designating him a Blood disruptive group member. (Lodgment No. 8, Gray v. Uribe, Case No. S202008 (Cal. filed Apr. 25, 2012) (Petition at 5).) Petitioner also argued that being referred to as a Blood violated his liberty interest. (Id. at 6.) On June 27, 2012, the California Supreme Court summarily denied the petition. (Lodgment No. 9, In re Gray, Case No. S202008.)
I. Habeas Relief Pursuant to 28 U.S.C. § 2254
Respondent contends that Gray's Petition should be dismissed because the claims Petitioner asserts do not entitle him to federal habeas relief. (Doc. No. 13. Resp't's Mot. Dismiss at 11) Specifically, Respondent argues that Petitioner's designation as a disruptive group member within the CDCR does not adversely impact the legality or duration of his confinement. (Id.)
In his opposition, Petitioner alleges that his designation as a Blood disruptive group member affects the duration of his confinement because the Board of Parole Hearings is required to consider members of a disruptive group as a risk to public safety. (Doc. No. 19. Pet'r's Opp'n Mot. Dismiss at 8.) Petitioner claims that this designation ...