Gerardo v. Stainer

          ORDER DISMISSING CASE FOR FAILURE TO STATE A CLAIM COGNIZABLE IN A FEDERAL HABEAS ACTION (Docs. 1 and 2)

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE

         Screening Order

         Petitioner Art Gerardo is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.^[1] He seeks to set aside his validation as a prison gang member and confinement in a security housing unit (“SHU”).

         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 (9^th 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 (9^th Cir. 1971).

         II. Procedural and Factual Background ^[2]

         On May 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.

         On 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 13, 2016.

         On June 3, 2016, Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         III. Procedural Complications

         Petitioner’s 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).

         IV. No Federal Jurisdiction Over Gang Validation

         Validation 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 items.

         In a 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 ...