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Bull v. Beard

United States District Court, S.D. California

April 11, 2014

EMMANUEL TYRONE BULL, OBJECTIONS; Petitioner,
v.
JEFFREY BEARD, Warden, Respondent.

ORDER 1) OVERRULING PETITIONER'S 2) ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE; 3) DENYING PETITION FOR WRIT OF HABEAS CORPUS; and 4) DENYING A CERTIFICATE OF APPEALABILITY. (Doc. Nos. 21, 16, and 1, respectively)

ANTHONY J. BATTAGLIA, District Judge.

On March 12, 2013, Petitioner Emmanuel Tyrone Bull ("Petitioner"), a California inmate proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner alleges two grounds for relief: (1) deprivation of his procedural due process rights; and (2) subjection to cruel and unusual punishment. Respondent filed a Motion to Dismiss opposing any habeas relief (Doc. No. 8), and Petitioner filed a Response (Doc. No. 14). For the reasons set forth below, Petitioner's objections are OVERRULED, and the Court ADOPTS Magistrate Judge William V. Gallo's Report and Recommendation ("R&R") in its entirety.

I. BACKGROUND

In 1992 a jury convicted Petitioner of Murder in the Second Degree (CAL. PENAL CODE § 187), Robbery (CAL. PENAL CODE § 212.5(b)), and Use of a Firearm During the Commission of a Felony (CAL. PENAL CODE § 12022.5 (a)). (Doc. No. 14 at 18.) Petitioner was sentenced to nineteen years to a life sentence. (Doc. No. 1 at 7; Doc. No. 14 at 18.) Petitioner seeks habeas relief not from his initial convictions, but instead challenges a Rules Violation Report he incurred while in custody.

On April 6, 2012, Officer J. Alvarez filed a California Department of Corrections ("CDC") Form 128-A, documenting Petitioner's violation of Inmate Cell Standards (15 C.C.R. § 3064) and Operational Procedure 4006. (Doc. No. 1 at 51.) Inmates are required to "keep their quarters and surroundings neat, clean and sanitary. Inmates may not alter their quarters or equipment without specific authorization to do so." 15 C.C.R. § 3064. Officer Alvarez reported that Petitioner's cell contained a "curtain made out of a State issued sheet... fastened to the bunk, " which "impedes visibility into the cell and presents a hazard to Facility security and necessitates the Floor Officer to respond to the cell, disrupting the operation of the Housing Unit." ( Id. ) On April 13, 2012, Petitioner was notified of the CDC 128-A and a copy was placed into his C-File. ( Id. at 18:6-9; 51.) On April 16, 2012, Petitioner filed an appeal pursuant to 15 C.C.R. § 3084, disputing the CDC 128-A filed against him. ( Id. at 45-48.) On June 8, 2012, that appeal was denied because the record indicated the Officer "observed the violation." ( Id. at 49-50.) This denial exhausted all of Petitioner's administrative remedies available with the California Department of Corrections and Rehabilitation ("CDCR"). ( Id. at 50.) On June 14, 2013, Petitioner attempted to appeal that denial because "[i]nterviewer P. Alaniz and the reviewer G. J. Janda deliberately, maliciously, [and] arbitrarily acted to interview the wrong correctional officer J. Ortega, and improperly, unlawfully acted to rely on J. Ortega's report as evidence, who is not the reporting employee." ( Id. ) On July 18, 2012, the CDCR Office of Appeals, acting as the third level of review, responded by advising Petitioner the appeal issue was considered exhausted at the second level of review. ( Id. at 44.)

Petitioner filed a Petition for Writ of Habeas Corpus in the California Superior Court, which was denied on October 25, 2012. ( Id. at 8.) Petitioner filed a Petition for Writ of Habeas Corpus in the California Court of Appeal, which was denied on December 19, 2012. ( Id. at 9.) Petitioner filed a Petition for Writ of Habeas Corpus with the California Supreme Court, which was denied on February 13, 2013. ( Id. )

On March 12, 2013, having exhausted all of his state court remedies, Petitioner filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. ( Id. ) On May 20, 2013, Respondent moved for dismissal of the Petition under 28 U.S.C. § 2254, Rule 4, because the Petition's claims failed to invoke federal habeas corpus jurisdiction. (Doc. No. 8.) On August 23, 2013, Petitioner filed a Response in Opposition to the Motion to Dismiss. (Doc. No. 14.) On August 26, 2013, Magistrate Judge Gallo issued an R&R recommending this Court deny Petitioner's Writ of Habeas Corpus in its entirety, (Doc. No. 13), but that R&R was withdrawn later the same day, (Doc. No. 15). Two days later, on August 28, 2013, Magistrate Judge Gallo issued the operative R&R also recommending this Court deny Petitioner's Writ of Habeas Corpus in its entirety. (Doc. No. 16.) On October 28, 2013, the Court adopted the operative R&R in its entirety, granted Respondent's Motion to Dismiss, and denied Petitioner's Writ of Habeas Corpus with prejudice. (Doc. No. 18.) On November 14, 2013, Petitioner filed a Motion for Reconsideration, stating that he did not object to the operative R&R "because Petitioner believed that the Judge ruled in Petitioner's favor when [Magistrate Judge Gallo] withdrew his report." (Doc. No. 20.) On November 19, 2013, in the interest of fairness, the Court withdrew the prior order and granted Petitioner thirty days to file his objections to the R&R. (Doc. No. 21.) On January 21, 2014, Petitioner filed his Objections to the R&R. (Doc. No. 24.)

II. LEGAL STANDARDS

A. Review of the Report and Recommendation

Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) provide district judges' duties regarding a magistrate judge's R&Rs. The district court judge should "make a de novo determination of those portions of the report to which the objection is made, " and "may accept, reject, or modify in whole or in part, the finding or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).

B. Habeas Corpus Relief

A federal court "shall entertain an application for a Writ of Habeas Corpus on behalf of a person in custody pursuant to the judgment of a state court only on the ground he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). "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 unless it appears that the applicant has exhausted the remedies available in the courts of the State[.]" 28 U.S.C. § 2254(b)(1)(A). Rule 4 of the Rules Governing § 2254 Cases governs dismissal in habeas corpus cases. Rule 4, 28 U.S.C. foll. § 2254 advisory committee's note; White v. Lewis, 874 F.2d 599, 602-03 (1989); O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.1990). "A writ of habeas corpus is available under 28 U.S.C. § 2254(a) only on the basis of some transgression of federal law binding on the state courts." Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir.1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A writ of habeas corpus is not available "for alleged error in the interpretation or application of state law." Middleton, 768 F.2d at 1085. To withstand a dismissal, Petitioner must "state facts that point to a real possibility of constitutional error.'" O'Bremski, 915 F.2d at 420 (citation omitted).

III. DISCUSSION

Petitioner objects to Magistrate Judge Gallo's R&R on the same two grounds as his Petition: (1) the issuance of the CDC 128-A deprived Petitioner of his procedural due process rights; and (2) the conditions of Petitioner's confinement constitute cruel and unusual punishment. Petitioner seeks to have the Court (1) order the CDC 128-A expunged from his C-File, (2) hold an ...


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