Taylor v. Yates

Filing 8

FINDINGS and RECOMMENDATIONS Recommending to DISMISS State Law Claims and to Require a Response with Respect to Petitioner's Due Process Claim 1 , signed by Magistrate Judge Sheila K. Oberto on 7/13/2010, Referred to Judge Wanger. Objections to F&R due by 8/16/2010.(Marrujo, C)

(HC) Taylor v. Yates

Doc. 8

1 2 3 4 5 6 7 8 9 10 MARK JAMES TAYLOR, 11 Petitioner, 12 13 14 15 16 17 Petitioner is a state prisoner proceeding pro se and in 18 forma pauperis with a petition for writ of habeas corpus pursuant 19 to 28 U.S.C. § 2254. 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 21 Rules 302 and 304. 22 which was filed on October 26, 2009. 23 I. Screening the Petition 24 Rule 4 of the Rules Governing § 2254 Cases in the United 25 States District Courts (Habeas Rules) requires the Court to make 26 a preliminary review of each petition for writ of habeas corpus. 27 The Court must summarily dismiss a petition "[i]f it plainly 28 1
Dockets.Justia.com

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

v. JAMES A. YATES, Respondent.

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1:09-cv--01876-OWW-SKO-HC FINDINGS AND RECOMMENDATION TO DISMISS STATE LAW CLAIMS AND TO REQUIRE A RESPONSE WITH RESPECT TO PETITIONER'S DUE PROCESS CLAIM (DOC. 1) OBJECTIONS DEADLINE: THIRTY (30) DAYS

The matter has been referred to the

Pending before the Court is the petition,

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appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all

grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 adoption;

O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition

that are vague, conclusory, or palpably incredible are subject to summary dismissal. Cir. 1990). Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule Hendricks v. Vasquez, 908 F.2d 490, 491 (9th

8, 1976 adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001). II. The Petition

Petitioner, an inmate of Pleasant Valley State Prison, challenges a disciplinary finding made in March 2008 that Petitioner failed to comply with count procedures in violation of Cal. Code Regs. tit. 15, § 3017, which provides, "Inmates must be present at designated times and places for counts, and must present themselves for count in the manner set forth in 2

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institution procedures."

(Pet. 7, 37, 19.)

Petitioner forfeited Petitioner alleges

thirty (30) days of credit for the offense.

1) he is innocent of the violation because of insufficient evidence of the prohibited conduct and of wilfulness; 2) the offense of failure to comply with count procedures was not an offense, was not a lesser included offense of the originally charged violation of delaying a peace officer while performing his duties, and was not a serious rules violation; 3) Cal. Code. Regs. tit. 15, § 3017 grants excessive discretion and results in false charges of violations and wrongful convictions; and 4) Petitioner thereby suffered a violation of due process guaranteed under both the state constitution and the Fourteenth Amendment of the United States Constitution. III. (Pet. 7-16.)

Claims Involving Only State Law A. Legal Standards

Federal habeas relief is available to state prisoners only to correct violations of the United States Constitution, federal laws, or treaties of the United States. 28 U.S.C. § 2254(a).

Federal habeas relief is not available to retry a state issue that does not rise to the level of a federal constitutional violation. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

Alleged errors in the application of state law are not cognizable in federal habeas corpus. Souch v. Schiavo, 289 F.3d 616 (9th

Cir. 2002) (a claim challenging state court's discretionary decision concerning application of state sentencing law presented only state law issues and was not cognizable in a proceeding pursuant to 28 U.S.C. § 2254); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). The Court accepts a state court's 3

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interpretation of state law. 1389 (9th Cir. 1996).

Langford v. Day, 110 F.3d 1380,

In a habeas corpus proceeding, this Court

is bound by the California Supreme Court's interpretation of California law unless it is determined that the interpretation is untenable or a veiled attempt to avoid review of federal questions. 2001). B. Analysis of Petitioner's Claims Murtishaw v. Woodford, 255 F.3d 926, 964 (9th Cir.

Issues two through three raised by Petitioner involve the interpretation and application of the state statutory and regulatory law that created and calibrated the disciplinary rules violations. To the extent that Petitioner in claim four alleges

a violation of due process based upon the state constitution, the issue is purely one of state law. These claims are not Therefore, they

cognizable in a proceeding pursuant to § 2254. must be dismissed.

However, claims one and four, when liberally read, allege a cognizable claim of a violation of due process of law because of the absence of some evidence to support a finding of a violation of the pertinent disciplinary rules. cognizable in a § 2254 proceeding. IV. Recommendation Thus, these claims are

Accordingly, it is RECOMMENDED that: 1) Petitioner's claims concerning the interpretation of the offense of failure to comply with count procedures, its status as a serious rules violation or as a lesser included offense of the originally charged violation, the extent of discretion entrusted in prison officials under Cal. Code. Regs. tit. 15, § 3017, and 4

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any violation of due process of law premised solely on the state constitution be DIMISSED because they are not cognizable in a proceeding pursuant to 28 U.S.C. § 2254; and 2) Insofar as Petitioner claims a violation of due process of law because of the absence of some evidence to support a finding of a violation of the pertinent disciplinary rules, the Respondent should be ordered to file a response to the petition. These findings and recommendations are submitted to the United States District Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after

being served with a copy, any party may file written objections with the Court and serve a copy on all parties. Such a document

should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies to the objections shall be served

and filed within fourteen (14) days (plus three (3) days if served by mail) after service of the objections. The Court will

then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file

objections within the specified time may waive the right to appeal the District Court's order. 1153 (9th Cir. 1991). Martinez v. Ylst, 951 F.2d

IT IS SO ORDERED. Dated: ie14hj July 13, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE

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