WILLIAM Q. HAYES, District Judge.
The matter before the Court is the Report and Recommendation (ECF No. 23) issued by United States Magistrate Judge Karen S. Crawford recommending that the Court grant Respondent's Motion to Dismiss (ECF No. 21) and dismiss the First Amended Petition for Writ of Habeas Corpus (ECF No. 19) with prejudice.
Petitioner Ruben Dario Garcia, Jr. is currently serving a prison term of seven and one-half years plus life without the possibility of parole for state court convictions of first degree murder, attempted voluntary manslaughter, kidnaping, attempted kidnaping, forcible rape, and two counts of assault. (Lodgment No. 1; ECF No. 15 at 2).
On November 10, 2009, at a prison disciplinary hearing, Petitioner was found guilty of wearing state-issued pants with "manufactured pockets" in violation of Section 3011 of the California Code of Regulations. (Lodgment No. 2; ECF No. 15 at 2). Petitioner was assessed the following penalties: (1) a forfeiture of thirty days of work time credit; and (2) a fine of $15.55 for the replacement of the damaged pants. Id.
On July 19, 2011, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, alleging deprivation of due process at the prison disciplinary hearing. (ECF No. 1). On October 25, 2011, Respondent Neotti filed a Motion to Dismiss, contending that Petitioner failed to state a federal claim. (ECF No. 7). On November 16, 2011, Petitioner filed an opposition. (ECF No. 9).
On September 11, 2012, the Court issued an Order adopting a Report and Recommendation issued by the Magistrate Judge. (ECF No. 18). The Order concluded:
Respondent's Motion to Dismiss (ECF No. 7) is GRANTED. It is further ordered that the Petition is DISMISSED with leave to amend Ground One, to the extent it alleges a violation of due process based on a liberty interest that affects the duration of the sentence.' (ECF No. 15 at 13). The remainder of the Petition is DISMISSED without leave to amend. No later than sixty (60) days from the date this Order is filed, Petitioner may file an amended petition.
Id. at 3.
On October 18, 2012, Petitioner filed the First Amended Petition for Writ of Habeas Corpus ("Petition"). (ECF No. 19). Petitioner alleges one claim for deprivation of due process on the basis that he was denied a fair prison disciplinary hearing. Petitioner contends that the hearing officer's decision to find him guilty of the prison violation "directly affects the duration of Petitioner's sentence" because the decision could reduce the possibility of the Governor of the State of California commuting his sentence to life with the possibility of parole. Id. at 8, 13.
On December 21, 2012, Respondent filed the Motion to Dismiss, contending that the Petition should be dismissed because it "fails to allege a violation of due process based on a liberty interest that affects the duration of Petitioner's sentence." (ECF No. 21 at 4). On January 17, 2013, Petitioner filed an opposition. (ECF No. 22).
On August 14, 2013, the Magistrate Judge issued the Report and Recommendation. (ECF No. 23). The Magistrate Judge recommended that the Court grant the Motion to Dismiss with prejudice because "Petitioner's argument about the potential impact of the disciplinary proceeding on his sentence is too speculative to establish federal habeas corpus jurisdiction." Id. at 4.
On August 29, 2013, Petitioner filed ...