Gregory Joseph Ott v. Terri Gonzalez

Filing 4

ORDER SUMMARILY DISMISSING CASE by Judge Philip S. Gutierrez. (See document for details.) Case Terminated. Made JS-6. (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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GREGORY JOSEPH OTT,

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Petitioner,

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vs.

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TERRI GONZALEZ, Warden,

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Respondent.

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CASE NO. CV 11-04225 PSG (RZ)
ORDER SUMMARILY DISMISSING
PETITION

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The petitioner in this habeas corpus action pursuant to 28 U.S.C. § 2254,

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Gregory Joseph Ott, is a state inmate. He challenges a 2008 prison disciplinary finding

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whereby, in addition to other punishments, he lost “good time” credit towards completion

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of his sentence. Petitioner explains that an attorney, appointed to assist him in challenging

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that finding in a state trial court in Napa County, failed to file a traverse in that court, thus

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causing Petitioner to lose that challenge. Petitioner asserts here that he was denied

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effective assistance of counsel in violation of his federal constitutional rights. Because

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that claim is clearly legally infirm, as explained below, the Court will dismiss the action

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summarily.

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Rule 4 of the Rules Governing Section 2254 Cases in the United States

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District Courts provides in part that “[i]f it plainly appears from the face of the petition and

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any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the

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judge shall make an order for its summary dismissal and cause the petitioner to be

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notified.”

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Absent a constitutional right to counsel in the first place, there can be no

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deprivation of any right to effective assistance of counsel. See Wainwright v. Torna, 455

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U.S. 586, 587-88, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982) (per curiam). Inmates have no

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right to retained or appointed counsel at prison disciplinary proceedings. See Baxter v.

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Palmigiano, 425 U.S. 308, 315, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). Because Petitioner

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had no right to counsel at (or after) his disciplinary proceedings, he cannot demonstrate a

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violation of such a right. His ineffective-assistance claim fails as a matter of law.

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For the foregoing reasons, the Court DISMISSES this action.

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IT IS SO ORDERED.

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DATED: May 27, 2011

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PHILIP S. GUTIERREZ
UNITED STATES DISTRICT JUDGE

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