United States District Court, E.D. California
FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS [Doc. 10]
MICHAEL J. SENG, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent is represented in this action by Andrew R. Woodrow, of the Office of the Attorney General for the State of California.
Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Los Angeles, upon being convicted on April 4, 1995 of second degree murder. (See Pet. at 1.) Petitioner was sentenced to an indeterminate state prison term of twenty (20) years to life. (Id.) On September 27, 2007, Petitioner was convicted of possession of a weapon in state prison and was sentenced to a consecutive, determinate term of eight years. (Mot. to Dismiss, Ex. 1.)
In 2012, the California Department of Corrections and Rehabilitation (CDCR) issued Petitioner a rules violation report for possessing inmate-manufactured alcohol. (Mot. to Dismiss, Ex. 2.) At the disciplinary hearing on May 12, 2012, the hearing officer found Petitioner guilty of the charge and assessed a 30-day loss of custody credits. (Id.) After seeking relief administratively, Petitioner sought habeas relief in the Kern County Superior Court alleging that he was denied the opportunity to call a witness. (Id. at Ex.2.) Following briefing, the superior court found some evidence to support the hearing officer's decision, determined that Petitioner failed to properly raise his witness claim, and regardless, that any error did not "undermine confidence in the outcome" of the disciplinary decision and denied the petition. (Id.) Petitioner then filed petitions in the California Court of Appeal and the California Supreme Court. Both petitions were summarily denied. (Mot. to Dismiss, Exs. 3-4.)
Petitioner filed the instant petition on September 9, 2014. (Pet., ECF No. 1.) On November 26, 2014, Respondent filed a Motion to Dismiss the petition for failure to state a cognizable claim. (Mot. to Dismiss, ECF No. 10.) Petitioner did not file an opposition.
A. Procedural Grounds for Motion to Dismiss
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Rule 4 of the Rules Governing Section 2254 Cases.
The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n. 12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F.Supp. at 1194 & n. 12.
Moreover, the Advisory Committee Notes to Rule 8 of the Rules Governing Section 2254 Cases indicates that the court may dismiss a petition for writ of habeas corpus either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. See, e.g., Miles v. Schwarzenegger, 2008 U.S. Dist. LEXIS 72056, 2008 WL 3244143, at *1 (E.D. Cal. Aug. 7, 2008) (dismissing habeas petition pursuant to respondent's motion to dismiss for failure to state a claim). However, a petition for writ of 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).
B. Cognizability of Petitioner's Claim
1. Habeas Corpus Jurisdiction
A writ of habeas corpus is the appropriate federal remedy when "a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to an immediate or speedier release from that imprisonment." Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Challenges to prison disciplinary convictions in which the inmate has lost time credits must be raised in a federal habeas corpus action unless the credits have been restored or the disciplinary conviction set aside. Edwards v. Balisok, 520 U.S. 641, 644 (1997). Federal habeas corpus jurisdiction also exists when a prisoner seeks "expungement of a disciplinary finding from his record if expungement is likely to accelerate the prisoner's eligibility for parole." Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (citing McCollum v. Miller, ...