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Post v. On Habeas Corpus

United States District Court, E.D. California

July 11, 2017

ALEXANDER K. POST, Petitioner,
v.
ON HABEAS CORPUS, Respondent.

          ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE

          Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE.

         Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation serving a fifteen-year sentence for his conviction in Los Angeles County of attempted second degree murder, robbery, and use of a firearm. He challenges a finding in a disciplinary hearing held on November 10, 2014, in which he was found guilty of battery on an inmate with the use of a weapon and assessed a loss of 360 days of good time credit. Upon review of the petition, it is clear that Petitioner is not entitled to habeas relief. Therefore, the Court will order the petition be SUMMARILY DISMISSED.

         DISCUSSION

         A. Preliminary Review of Petition

         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 Advisory Committee Notes to Rule 8 indicate 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. Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001).

         B. Facts [1]

         On August 31, 2014, Officer Macias was in a control booth when he heard an alarm sound from the yard. As he looked out, he witnessed Petitioner and Inmate Portis punching Inmate Wagner in the upper torso and facial area. Officer Macias yelled to Petitioner and Portis to stop and fired a 40mm impact round at the inmates, but they continued to batter Wagner. Portis then wrapped his legs around Wagner's waist and held Wagner's arms behind his back while Petitioner began striking Wagner in the facial area. Officer Macias ordered Petitioner to get down with negative results. Officer Macias fired a second 40mm round at Petitioner. Petitioner and Portis continued their attack on Wagner. Staff then arrived and all inmates assumed a prone position. Upon processing the crime scene, an inmate-manufactured weapon fashioned from clear melted plastic and sharpened to a point was discovered near the incident. Wagner suffered injuries including a “cut/laceration/slash” to his right ear. Officers took photographs of Wagner's head wrapped in bandages with blood on the bandages, blood covering Wagner's chest, and Petitioner covered in blood.

         C. Procedural History

         On September 14, 2014, Petitioner was issued a rules violation report for battery on an inmate with a weapon and with a gang nexus. (Doc. No. 1, Ex. B.) On September 13, 2014, an investigative employee was assigned. (Doc. No. 1, Ex. C.) He conducted an investigation and completed his report of the incident. (Doc. No. 1, Ex. C.) On November 9, 2014, a staff assistant was assigned to Petitioner. (Doc. No. 1, Ex. C.) The staff assistant met with Petitioner and explained the nature of the charges, the disciplinary process, and the evidence against him.

         On November 10, 2014, a disciplinary hearing was held. (Doc. No. 1, Ex. C.) Petitioner entered a plea of not guilty and provided the following statement: “That guy wasn't stabbed.” (Doc. No. 1, Ex. C.) Upon consideration of the evidence, the Senior Hearing Officer concluded that Petitioner was guilty of battery on an inmate with a weapon with a gang nexus. (Doc. No. 1, Ex. C.)

         Petitioner filed administrative appeals, and the appeals were denied at all administrative levels. (Doc. No. 1, Ex. I.) He then sought relief in the state courts. On November 6, 2015, he filed a petition for writ of habeas corpus in the Kern County Superior Court. (Doc. No. 1, Ex. A1.) The petition was denied in a reasoned decision on January 25, 2016. (Doc. No. 1, Ex. A1.) On April 18, 2016, he filed a petition for writ of habeas corpus in the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). (Doc. No. 1, Ex. I.) The Fifth DCA denied the petition concluding that “Petitioner fail[ed] to demonstrate the disciplinary decision [wa]s not supported by at least ‘some evidence.' (Superintendent v. Hill (1985) 472 U.S. 445, 455-456.)” (Doc. No. 1, Ex. I.) He filed a habeas petition in the California Supreme Court on November 14, 2016, and the petition was denied without comment on January 11, 2017. (Doc. No. 1, Ex. A2.)

         D. AEDPA Standard

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

         Under AEDPA, a petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the petitioner can show that the state court's adjudication of his claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that “was based on an unreasonable determination of the facts in light of the evidence presented in ...


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