United States District Court, E.D. California
ORDER DISMISSING CASE FOR FAILURE TO STATE A CLAIM
COGNIZABLE IN A FEDERAL HABEAS ACTION (Docs. 1 and
K. OBERTO UNITED STATES MAGISTRATE JUDGE
Art Gerardo is a state prisoner proceeding pro se
with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. He seeks to set aside his validation as a
prison gang member and confinement in a security housing unit
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
Procedural and Factual Background
26, 2009, California prison officials validated Petitioner as
an active associate of the Mexican Mafia prison gang based on
seven source items indicative of gang membership, as set
forth in applicable state regulations. By December 2009,
Petitioner was aware that his administrative challenge had
been rejected as untimely. Petitioner then waited over four
years before filing a state habeas petition. In the absence
of any explanation for Petitioner’s delay in seeking
habeas relief, the Kings County Superior Court denied the
petition as untimely on April 2, 1014.
November 2, 2015, Petitioner filed a state habeas petition in
the California Court of Appeal. The Court of Appeal summarily
denied the petition on December 18, 2015. The California
Supreme Court summarily denied the habeas petition on April
3, 2016, Petitioner filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
failure timely to pursue state habeas remedies raises
multiple procedural issues, including the question of whether
his claims were properly exhausted. Because the Court
concludes that the federal petition fails to allege a
cognizable federal claim, it need not analyze these issues.
“If a state prisoner alleges no deprivation of a
federal right, § 2254 is simply inapplicable.”
Engle v. Isaac, 456 U.S. 107, 120 n. 19 (1982).
No Federal Jurisdiction Over Gang
of an inmate as a member of a prison gang, properly referred
to as a “security threat group, ” is a process
governed by California state law. A security threat group
(STG) is an “ongoing formal or informal organization,
association, or group of three or more persons which has a
common name or identifying sign or symbol whose members
and/or associates, individually or collectively, engage or
have engaged, on behalf of that organization, association, or
group, in two or more acts which include planning,
organizing, threatening, financing, soliciting or committing
unlawful acts, or acts of misconduct.” Cal. Code Regs.
Tit. 15, § 3000. Validation is the formal and objective
process for identifying and documenting STG affiliates in
California state prisons. Cal. Code Regs. Tit. 15,
§§ 3000; 3378.2. Source items for validation may
include symbols distinctive to specific STGs, association,
informants, debriefing reports, written materials,
photographs, staff information, other agency information,
visitors, communication, self-admission, offenses, tattoos or
other body markings, and legal documents. Cal. Code Regs.
Tit. 15, § 3378.2. Each category of source item is
assigned a points value by which it is weighted to permit an
objective assessment in the validation process. Cal. Code
Regs. Tit. 15, § 3378.2. The record indicates that
Petitioner’s validation was predicated on seven source
federal habeas action, Petitioner bears the burden of
alleging specific facts showing that a federal right is
involved. Blackledge v. Allison, 431 U.S. 63, 75 n.
7 (1977). In his claim, Petitioner fails to allege these
facts and merely challenges the ...