United States District Court, N.D. California
ALBERT A. ONTIVEROS, Petitioner,
RALPH DIAZ, Respondent.
ORDER TO SHOW CAUSE DOCKET NOS. 1, 2, 7
M. CHEN UNITED STATES DISTRICT JUDGE.
A. Ontiveros, an inmate at the Pelican Bay State Prison,
filed this pro se action for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. His petition is now before
the court for review pursuant to 28 U.S.C. §2243 and
Rule 4 of the Rules Governing Section 2254 Cases.
petition and attachments thereto provide the following
Ontiveros is serving a sentence of 13 years eight months
imposed by the Alameda County Superior Court on August 23,
2010. Docket No. 1 at 1. In this action, he challenges a loss
of time credits that will affect the duration of his
2011, Mr. Ontiveros was found guilty of violating California
Code of Regulations Title 15 section 3016(a), which prohibits
the misuse of alcohol and drugs. Although Mr. Ontiveros was
found guilty of the disciplinary offense in 2011, the loss of
time credits was not assessed until six years later, on
January 31, 2017.
Ontiveros filed unsuccessful petitions for writ of habeas
corpus in the California courts challenging the disciplinary
decision. He then filed this action.
district court considering an application for a writ of
habeas corpus shall “award the writ or issue an order
directing the respondent to show cause why the writ should
not be granted, unless it appears from the application that
the applicant or person detained is not entitled
thereto.” 28 U.S.C. § 2243. Summary dismissal is
appropriate only where the allegations in the petition are
vague or conclusory, palpably incredible, or patently
frivolous or false. See Hendricks v. Vasquez, 908
F.2d 490, 491 (9th Cir. 1990).
court may entertain a petition for writ of habeas corpus
“in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a). A
federal court may not grant habeas relief for state law
errors. Swarthout v. Cooke, 131 S.Ct. 859, 861
Ontiveros alleges three “claims” in his petition.
First, he contends that he was denied an opportunity to be
heard at a meaningful time and in a meaningful manner because
prison officials did not comply with the CDCR's
Department Operations Manual § 52080.5.7, which required
that any credit loss be assessed at the “next scheduled
meeting” with the Classification Committee following
the completion of the disciplinary process. Docket No. 1 at
5. This claim must be dismissed because it alleges an error
under state law. “[I]t is only noncompliance with
federal law that renders a State's criminal
judgment susceptible to collateral attack in the federal
courts.” Wilson v. Corcoran, 562 U.S. 1, 5
(2010). The Supreme Court has repeatedly held that federal
habeas relief is unavailable for violations of state law or
for alleged error in the interpretation or application of
state law. See Swarthout v. Cooke, 562 U.S. at 220.
The state law error claim is dismissed.
Mr. Ontiveros claims that prison officials impeded his
efforts to exhaust administrative remedies because his
property was confiscated and then was slow to get back to
him. Id. Whether prison officials impeded his
efforts to exhaust administrative remedies might be relevant
to a determination of whether his claims are procedurally
default due to nonexhaustion of administrative remedies. (The
California Supreme Court rejected his habeas petition for
failing to exhaust administrative remedies. See
Docket No. 1 at 9.) But the contention does not state a claim
upon which federal habeas relief may be granted because any
impediment to the prisoner's ability to exhaust
administrative remedies does not imply that the prisoner is
in custody in violation of the Constitution, laws, or
treaties of the United States. In other words, the exhaustion
or nonexhaustion of administrative remedies does not show
that he is in custody in violation of the Constitution, laws,
or treaties of the United States. The second claim is
Mr. Ontiveros claims that the taking of time credits six
years after the disciplinary hearing violates due process.
Docket No. 1 at 5, 7. The claim does not appear to be