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Avalos v. Frauenheim

United States District Court, E.D. California

June 5, 2015

RICHARD AVALOS, Petitioner,
v.
SCOTT FRAUENHEIM, Respondent.

ORDER DISMISSING PETITION FOR FAILURE TO STATE A COGNIZABLE FEDERAL CLAIM (Docs. 1 and 2) SCREENING ORDER

BARBARA A. McAULIFFE, Magistrate Judge.

Petitioner, a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserts a single claim: that his constitutional right to due process was violated when prison officials illegally disciplined him for his cellmate's possession of manufactured alcohol (pruno). Because the petition fails to state a cognizable federal claim, the Court dismisses it.[1]

I. Preliminary Screening

Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the petition... that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A petition for 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 to be granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

II. Procedural and Factual Background

At 7:00 a.m. on July 31, 2012, Correctional Officer A. Mercado detected a strong odor of inmate manufactured alcohol (pruno) coming from the cell occupied by Petitioner and his cellmate Rios. In a subsequent search of the cell, Officer Mercado discovered approximately 2 ½ gallons of pruno in a plastic bag in a common area of responsibility of both inmates.

At an institutional hearing on August 11, 2012, Rios pleaded guilty to the charge of a Division C Offense of "Possession of Inmate Manufactured Alcohol (Pruno)." Rios stated, "It's all me. It's all my fault." Doc. 1 at 56.

Later on August 11, 2012, Petitioner personally appeared at an institutional hearing and pled not guilty to the charge of a Division C Offense of "Possession of Inmate Manufactured Alcohol (Pruno)." At the hearing, Plaintiff partly admitted guilt: "... I knew that morning it was in the cell." Doc. 1 at 50. The Senior Hearing Officer (SHO) found Petitioner guilty and assessed a credit forfeiture of 120 days and loss of privileges.

Petitioner appealed the decision, contending (1) that he was misquoted and that he actually stated that he knew that the pruno had been found in his cell when he returned from breakfast and (2) that he was wrongly disciplined for the actions of his cellmate. Denying the appeal at the second level, the Appeals Coordinator wrote:

Mr. Avalos, a cell search was conducted of your assigned cell. Inmate manufactured alcohol was found in your assigned cell. The making of alcohol takes several days before it reaches the state as it was found in your cell. The Officer could smell the odor of alcohol outside your cell with the door closed; therefore it is hard to believe you had no knowledge of the alcohol with this strong odor permeating from your cell. You are reminded that you will be held responsible and accountable for your living area at all times. Your claims in this appeal have been proven false and your guilty finding will not be changed. Doc. 1 at 39.

On December 14, 2012, following review at the third level, the appeal was again denied. The Appeals Examiner wrote:

The appellant claims that he did not possess the alcohol which was discovered in his cell. The alcohol was found in a common area of the cell, possessed a strong odor, was of large quantity, and the sergeant verified that it was alcohol. The cellmate's claim of ownership does not eliminate the appellant's culpability in this matter. The appellant had the ability to be proactive in his dissociation from the situation. He did not choose to exercise this option, and must in light of the evidence, share responsibility for the rule violation. The appellant asserts that he is not responsible for the actions of his cell partner. The evidence presented by the Reporting Employee leads a reasonable person to believe that appellant was aware of the presence of the contraband in the cell and he gave his implied consent to allow the alcohol into the cell.
Doc. 1 at 38.

The Appeals Examiner concurred in the finding that Petitioner was aware of the pruno and exercised constructive control over it. He found no evidence to support Petitioner's contention that the SHO misquoted Petitioner. He declined to address various issues and requests first presented at the third level of appeal. Finally, the Appeals Examiner concluded that Petitioner was provided with all necessary administrative protections throughout the hearing and appeals process and that the evidence supported the findings and disposition.

Petitioner filed a petition for writ of habeas corpus in state court on February 19, 2013. On March 21, 2013, the Fresno County Superior Court dismissed Petitioner's habeas corpus petition for failure to state a prima facie case for relief. The Superior Court held that the requirements for federal due process are satisfied if some evidence supports the prison disciplinary board's decision to revoke good time credits. Evaluating the standard of review, said the court, does not require examination of the record as a whole, independent assessment of the witnesses' credibility, or weighing of the evidence. The California Court of Appeal for the Fifth Appellate District summarily denied the petition on May 23, 2013. The Supreme Court of California summarily denied the petition on February 18, 2015.

On April 1, 2015, Petitioner filed a timely § 2254 petition in this Court along with a motion for judicial notice of Brown ...


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