Tyrone T. Turner v. J. Soto

Filing 4

ORDER DISMISSING PETITION WITH LEAVE TO AMEND by Magistrate Judge Robert N. Block. (mt)

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(CV69 also mailed)

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Petitioner

7/30/14

klh

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July 30, 2014

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K
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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TYRONE T. TURNER,

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Petitioner,

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vs.

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J. SOTO, Warden,

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Respondent.

) Case No. CV 14-5845-CAS (RNB)
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) ORDER DISMISSING PETITION WITH
) LEAVE TO AMEND
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The Court’s review of the Petition for Writ of Habeas Corpus, lodged for filing

18 herein on July 25, 2014, reveals that it suffers from the following pleading
19 deficiencies.
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Under 28 U.S.C. § 2254(a), petitioner may only seek habeas relief if he is

21 contending that he is in custody in violation of the Constitution or laws or treaties of
22 the United States. Here, it appears from the face of the Petition that petitioner is not
23 challenging his underlying conviction or sentence. Rather, it appears that the Petition
24 is directed to the outcome of a prison disciplinary proceeding that was held in 2012
25 and that resulted inter alia in the loss of custody credits.
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The Supreme Court has held that “[p]rison disciplinary proceedings are not part
27 of a criminal prosecution, and the full panoply of rights due a defendant in such
28 proceedings does not apply.” See Wolff v. McDonald, 418 U.S. 539, 556, 94 S. Ct.
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1 2963, 41 L. Ed. 2d 935 (1974). As summarized by the Ninth Circuit in Zimmerlee
2 v. Keeney, 831 F.2d 183, 186 (9th Cir. 1987), cert. denied, 487 U.S. 1207 (1988):
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“Due process in a prison disciplinary hearing is satisfied if the

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inmate receives written notice of the charges, and a statement of the

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evidence relied on by the prison officials and the reasons for disciplinary

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action. [citation omitted.] The inmate has a limited right to call

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witnesses and to present documentary evidence when permitting him to

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do so would not unduly threaten institutional safety and goals. [citation

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omitted.] Due process does not require that an informant’s identity be

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revealed to an inmate. [citations omitted.] Findings that result in the

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loss of liberty will satisfy due process if there is some evidence which

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supports the decisions of the disciplinary board. [citations omitted.]”

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Here, petitioner has not expressly alleged in any of his three grounds for relief

15 a violation of any of the foregoing rights. Instead:
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1.

In Ground one of the Petition, petitioner is alleging a

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violation of certain state procedural rights.

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cognizable on federal habeas review.

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2.

Such a claim is not

In Ground two of the Petition, petitioner is claiming a

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denial of his right to present a defense, but he fails to specify what

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defense he was denied the right to present. If, by this claim, petitioner

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means that the evidence before the hearing officer did not even satisfy

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the “some evidence” standard, petitioner should expressly have so

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alleged. The Court notes in this regard that ascertaining whether the

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“some evidence” standard is satisfied “does not require examination of

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the entire record, independent assessment of the credibility of witnesses,

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or weighing of the evidence.” See Superintendent v. Hill, 472 U.S. 445,

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455, 105 S. Ct. 2768, 2774, 86 L. Ed. 2d 356 (1985). “The relevant
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question is whether there is any evidence in the record that could

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support the conclusion reached.” See id. at 455-56.

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3.

In Ground three of the Petition, petitioner purports to allege

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a constitutional claim relating to the processing of petitioner’s

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administrative appeal. However, the Ninth Circuit has held that a

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prisoner has no constitutional right to an effective grievance or appeal

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procedure. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003),

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cert. denied, 541 U.S. 1063 (2004); Mann v. Adams, 855 F.2d 639, 640

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(9th Cir. 1988). Moreover, such a claim constitutes a claim directed to

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petitioner’s conditions of confinement and may not properly be asserted

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in a habeas petition or as part of a habeas petition. See Preiser v.

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Rodriguez, 411 U.S. 475, 498-500, 93 S. Ct. 1827, 36 L. Ed. 2d 439

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(1973). Thus, Ground three also fails to state a federal constitutional

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claim upon which habeas relief may be granted.

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For the foregoing reasons, the Petition is dismissed with leave to amend. If

17 petitioner still desires to pursue this action, he is ORDERED to file an amended
18 petition rectifying the deficiencies discussed above on or before September 2, 2014.
19 The clerk is directed to send petitioner’s counsel a blank Central District habeas
20 petition form for this purpose.
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The amended petition should reflect the same case number, be clearly labeled

22 “First Amended Petition,” and be filled out completely. In ¶ 8 of the First Amended
23 Petition, petitioner should specify separately and concisely each federal
24 constitutional claim that he seeks to raise herein and answer all of the questions
25 pertaining to each such claim. (If petitioner attaches a supporting memorandum of
26 points and authorities, the arguments therein should correspond to the claims listed
27 in ¶ 8 of the habeas petition form and not include any additional claims.) If petitioner
28 contends that he exhausted his state remedies in a Petition for Review to the
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1 California Supreme Court, he should list such filing in ¶ 4 of the habeas petition form
2 and provide all of the other called for information. If petitioner contends that he
3 exhausted his state remedies in a habeas petition to the California Supreme Court, he
4 should list such filing in ¶ 6 of the habeas petition form and provide all of the other
5 called for information. For each filing listed in ¶¶ 4 and 6, petitioner should be sure
6 to specify all of the grounds raised by him in such filing, along with the case number,
7 the date of decision, and the result.
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Finally, petitioner is cautioned that his failure to timely file a First Amended

9 Petition in compliance with this Order will result in a recommendation that this action
10 be dismissed without prejudice for failure to prosecute.
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12 DATED: July 30, 2014
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ROBERT N. BLOCK
UNITED STATES MAGISTRATE JUDGE

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