ORDER TO SHOW CAUSE
THELTON E. HENDERSON, District Judge.
Petitioner Wilbur Floyd, an inmate currently incarcerated at Salinas Valley State Prison (SVSP) filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging an October 24, 2010 disciplinary hearing at California State Prison, Centinela (CEN).,  Petitioner has paid the $5.00 filing fee, therefore, his motion to proceed in forma pauperis (IFP) is denied as moot. Doc. #5. Petitioner also moves for discovery and an evidentiary hearing. Doc. #6. The Court orders Respondent to show cause why the petition should not be granted and denies the motion for discovery and an evidentiary hearing.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA) this Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). It shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." Id . § 2243.
Petitioner challenges his disciplinary hearing resulting in a guilty finding that he had an inmate-manufactured weapon hidden in his mattress. As a result of the guilty finding, Petitioner lost 181 days of behavioral credits and served eight months in the Secured Housing Unit. Petitioner contends his due process rights were violated because the disciplinary hearing was not held within the requisite time period. Petitioner also contends that his rights to Equal Protection, due process and double jeopardy were violated because he had two disciplinary hearings for the same offense.
Liberally construed, Petitioner's due process claim warrants a response. See Wolff v. McDonnell , 418 U.S. 539, 564-67 (1974) (discussing disciplinary hearing procedures necessary to comport with due process).
However, even liberally construed, Petitioner's allegations that he had two disciplinary hearings do not state a claim for a constitutional violation. Petitioner merely alleges that: (1) he asked that Officer Soto be present at his disciplinary hearing; (2) Officer Soto could not be located, so Petitioner was told to go back to his cell; and (3) about thirty minutes later, Petitioner was called out to have the disciplinary hearing with Lt. Rodriguez. Petitioner characterizes the hearing with Lt. Rodriguez as a "second hearing for the same charge." However, Petitioner never had a first hearing, it was just postponed. Furthermore, Petitioner does not allege that he was sentenced twice as a result of having two hearings. Therefore, the hearing with Lt. Rodriguez was his only hearing on the charge of possessing an inmate-manufactured weapon. Accordingly, Petitioner' second claim based on allegations of two hearings is not cognizable and does not warrant a response from Respondent.
Petitioner moves for discovery and an evidentiary hearing on his second claim based on two disciplinary hearings. Because Petitioner's second claim is not cognizable, this motion is denied as moot. See West v. Ryan , 608 F.3d 477, 485 (9th Cir. 2010) (citing Schriro v. Landrigan , 550 U.S. 465, 474 (2007)) (under AEDPA, court presented with request for evidentiary hearing must determine whether a factual basis exists in the record to support the claim); see also Cullen v. Pinholster , 131 S.Ct. 1388, 1400-01 (2011) ("If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court.").
For the foregoing reasons and for good cause shown,
1. Petitioner's request to proceed in forma pauperis is DENIED as moot because Petitioner has paid ...