Ybarra v. CCI Warden

Filing 8

ORDER DISMISSING 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Michael J. Seng on 3/26/2012. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HUMBERTO YBARRA,
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Petitioner,
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v.
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CCI Warden,
Respondent.

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1:11-cv-00698 MJS HC
ORDER DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS
(Doc. 1)

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Petitioner is a state prisoner proceeding pro se with a Petition for Writ of Habeas

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Corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has

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consented to the jurisdiction of the United States Magistrate Judge. Local Rule 305(b).

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I.

BACKGROUND

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Petitioner is currently in the custody of the California Department of Corrections. On

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September 23, 2008, the Institutional Gang Unit concluded that there was sufficient evidence

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to validate Petitioner as an associate of the 'Mexican Mafia (EME)' prison gang. (Pet. at 82,

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ECF No. 1.) Petitioner asserts that the validation process violated his constitutional rights. (Id.)

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U.S. District Court
E. D. California

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II.

DISCUSSION

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A.

Screening Standard

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Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a

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petition if it "plainly appears from the petition and any attached exhibits that the petitioner is

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not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254

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Cases.

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The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an

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answer if the motion attacks the pleadings for failing to exhaust state remedies or being in

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violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th

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Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state

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remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural

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grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp.

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1189, 1194 & n. 12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss

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after the court orders a response, and the Court should use Rule 4 standards to review the

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motion. See Hillery, 533 F. Supp. at 1194 & n. 12.

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Moreover, the Advisory Committee Notes to Rule 8 of the Rules Governing Section

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2254 Cases indicates that the court may dismiss a petition for writ of habeas corpus either on

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its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an

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answer to the petition has been filed. See, e.g., Miles v. Schwarzenegger, 2008 U.S. Dist.

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LEXIS 72056, 2008 WL 3244143, at *1 (E.D. Cal. Aug. 7, 2008) (dismissing habeas petition

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pursuant to respondent's motion to dismiss for failure to state a claim). However, a petition for

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writ of habeas corpus should not be dismissed without leave to amend unless it appears that

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no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d

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13, 14 (9th Cir. 1971).

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B.

Cognizability of Petitioner's Claim
1.

Habeas Corpus Jurisdiction

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A writ of habeas corpus is the appropriate federal remedy when "a state prisoner is

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challenging the very fact or duration of his physical imprisonment, and the relief he seeks is

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E. D. California

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a determination that he is entitled to an immediate or speedier release from that

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imprisonment." Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Challenges to prison

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disciplinary convictions in which the inmate has lost time credits must be raised in a federal

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habeas corpus action unless the credits have been restored or the disciplinary conviction set

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aside. Edwards v. Balisok, 520 U.S. 641, 644 (1997). Federal habeas corpus jurisdiction also

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exists when a prisoner seeks "expungement of a disciplinary finding from his record if

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expungement is likely to accelerate the prisoner's eligibility for parole." Bostic v. Carlson, 884

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F.2d 1267, 1269 (9th Cir. 1989) (citing McCollum v. Miller, 695 F.2d 1044, 1047 (7th Cir.

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1982)); see also Docken v. Chase, 393 F.3d 1024, 1028-29, 1031 (9th Cir. 2004) (challenging

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state parole board's refusal to provide petitioner with annual review of his suitability for parole).

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In Docken v. Chase, the Ninth Circuit clarified Bostic's definition of the word "likely" in

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this context. 393 F.3d at 1031. Expungement of a disciplinary finding is "likely" to accelerate

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a prisoner's eligibility for parole when his claim has "a sufficient nexus to the length of

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imprisonment so as to implicate, but not fall squarely within the 'core' challenges identified by

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the Preiser Court." Docken, 393 F.3d at 1031. An inmate's claim strikes at the core of habeas

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corpus when it "attack[s] the very duration of [his] physical confinement itself" and seeks

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"immediate release or speedier release from that confinement." Preiser, 411 U.S. at 487-88,

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498. The Ninth Circuit has concluded that a "sufficient nexus" exists, and therefore habeas

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jurisdiction, where a prison inmate "seek[s] only equitable relief in challenging aspects of [his]

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parole review that . . . could potentially affect the duration of [his] confinement." Docken, 393

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F.3d at 1031 (emphasis in original). "The likelihood of the effect on the overall length of the

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prisoner's sentence . . . determines the availability of habeas corpus." Id. at 1028 (quoting

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Ramirez, 334 F.3d at 858).

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Language in Ramirez v. Galaza potentially heightens the standard. Ramirez held that

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habeas jurisdiction does not exist if a successful petition does not necessarily shorten

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Petitioner's sentence. See 334 F.3d at 859 ("habeas jurisdiction is absent, and a § 1983 action

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proper, where a successful challenge to a prison condition will not necessarily shorten the

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prisoner's sentence."). Subsequently, in Docken the Ninth Circuit explained that such

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E. D. California

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distinction applied to 28 U.S.C. § 1983 cases, and did not likewise limit habeas corpus cases.

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Docken, 393 F.3d at 1028.1

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procedures and the administrative segregation that resulted from it. Ramirez's suit did not deal

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with the fact or duration of his confinement." See, e.g., Docken, 393 F.3d at 1030 n.4. Docken

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rejected the premise that habeas and section 1983 jurisdiction are mutually exclusive. Id. at

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1031 ("As outlined above, the question of the relationship between habeas and § 1983 relief

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has only explicitly come up before in converse form: whether claims are not cognizable under

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§ 1983 because their resolution will necessarily impact the fact and duration of confinement.

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In the only instance where the Supreme Court addressed whether habeas and § 1983 are

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necessarily mutually exclusive, the suggestion was that they are not. We agree.") (emphasis

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in original; citations omitted.).

"Ramirez concerned a challenge to internal disciplinary

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In summary, the Ninth Circuit’s discussion of habeas corpus jurisdiction is open to

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interpretation. However, it is possible that habeas corpus jurisdiction exists if a successful

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claim could potentially affect the duration of confinement.
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Does Petitioner's Gang Validation Affect the Duration of His
Confinement?

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The Court notes that Petitioner's challenge to his gang validation, even if successful,
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may not necessarily accelerate his release from prison. Instead, Petitioner will be subject to
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segregated confinement and other limitations. Federal courts have struggled with whether
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such clams are cognizable by way of habeas corpus.
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The Ninth Circuit, in an unpublished opinion, held that such a claim is not cognizable
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as it does not affect the duration of a petitioner's sentence as required under Preiser v.
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Rodriguez and Ramirez v. Galaza. See Burton v. Adams, No. 10-15668 (9th Cir. Feb. 23,
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"Thus, although Supreme Court case law makes clear that § 1983 is not available where a prisoner's
claim 'necessarily' implicates the validity or duration of confinement, it does not set out any mirror-image limitation
on habeas jurisdiction. The Court's central concern, in all of the cases cited above, has been with how far the
general remedy provided by § 1983 may go before it intrudes into the more specific realm of habeas, not the other
way around." Docken, 393 F.3d at 1028.

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E. D. California

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2011).2 Further, several district courts have also found that such claims are not cognizable in

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habeas. See e.g., Burton v. Adams, 2010 U.S. Dist. LEXIS 22960 (E.D. Cal. Feb. 25, 2010);

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Garcia v. Horel, 2010 U.S. Dist. LEXIS 108720 (N.D. Cal. Sept. 20, 2010); Perez v. McDonald,

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2011 U.S. Dist. LEXIS 40449 (E.D. Cal. April 6, 2011).

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However, other courts have found such claims cognizable. See Flores v. Jacquez, 2010

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U.S. Dist. LEXIS 106928 at *4 (N.D. Cal. Oct. 5, 2010) ("A further review of California federal

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cases reveals that the courts have been inconsistent regarding whether a challenge to an

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indeterminate sentence to administrative segregation based on a gang-validation can be

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properly addressed in a habeas petition."). For example, in Larriva v. Watson, 2008 U.S. Dist.

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LEXIS 10287 at *9 (E.D. Cal. Feb. 12, 2008), the court denied such grounds as a basis of a

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motion to dismiss as the Respondent did not show as a matter of law that the claim could not

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be presented. In Waco v. Gonzales, 2010 U.S. Dist. LEXIS 2141 at *14 n2 (C.D. Cal. Jan. 6,

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2010), the court declined to address whether the claim was foreclosed and proceeded to the

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merits of the claim. The court reasoned it was possible such placement in segregation could

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have affected petitioner's release date by affecting his ability to earn good time credits. Id.

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Further, in Maldonado v. Scribner, 2008 U.S. Dist. LEXIS 2415 (E.D. Cal. Jan. 11, 2008), the

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court declined to adopt the recommendation of the magistrate judge to dismiss the petition as

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the potential deprivation of good time credits provided a possible basis for cognizability. Still

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other courts have not addressed whether the claim was cognizable, and addressed the merits

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of the claim. See O'Neal v. Horel, 2009 U.S. Dist. LEXIS 24437 (N.D. Cal. March 13, 2009);

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Garibay v. Horel, 2011 U.S. Dist. LEXIS 55186 (N.D. Cal. May 24, 2011).

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As described above, courts have grappled with whether gang validation sufficiently

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impacts the duration of a petitioner's sentence to present a cognizable habeas claim. Some

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district courts have found such claims are not cognizable. It is possible, as some courts have

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found, that the claims are cognizable by way of habeas corpus. Accordingly, this Court finds

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judicial efficiency dictates that the Court determine the merits of the petition rather than

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While the Ninth Circuit does not prohibit or restrict the citation of unpublished opinions issued after
January 1, 2007, such opinions are not precedential. 9th Cir. R. 36-3.

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E. D. California

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continue to struggle with the more difficult issue of the cognizability of Petitioner's claims.
B.

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Merits of Petitioner's Claim
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Standard of Review

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Federal courts may review habeas corpus petitions "in behalf of a person in custody

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pursuant to the judgment of a State court only on the ground that he is in custody in violation

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of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petition

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may not be granted with respect to any claim that was adjudicated on the merits in state court

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unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary

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to, or involved an unreasonable application of, clearly established Federal law, as determined

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by the Supreme Court of the United States; or (2) resulted in a decision that was based on an

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unreasonable determination of the facts in light of the evidence presented in the State court

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proceeding." 28 U.S.C. § 2254(d).

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"Under the 'contrary to' clause, a federal habeas court may grant the writ if the state

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court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question

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of law or if the state court decides a case differently than [the] Court has on a set of materially

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indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S. Ct. 1495, 146 L. Ed.

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2d 389 (2000).

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"Under the 'unreasonable application' clause, a federal habeas court may grant the writ

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if the state court identifies the correct governing legal principle from [the] Court's decision but

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unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal

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habeas court may not issue the writ simply because that court concludes in its independent

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judgment that the relevant state-court decision applied clearly established federal law

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erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A

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federal habeas court making the "unreasonable application" inquiry should ask whether the

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state court's application of clearly established federal law was "objectively unreasonable." Id.

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at 409.

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E. D. California

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2.

No Clearly Established Federal Law Protects Petitioner's Claimed Right

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"Clearly established federal law, as determined by the Supreme Court of the United

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States" refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as

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of the time of the relevant state-court decision." Williams, 529 U.S. at 412; Norris v. Morgan,

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622 F.3d 1276, 1285 (9th Cir. 2010). If there is no Supreme Court precedent that controls on

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the legal issue raised by a petitioner in state court, the state court's decision cannot be

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contrary to, or an unreasonable application of, clearly-established federal law. Carey v.

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Musladin, 549 U.S. 70, 77, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006).

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The Supreme Court holdings on prisoners' rights in administrative segregation

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placement decisions are quite limited and are most recently found in Sandin v. Conner, 515

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U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), which set out the criteria for determining

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whether there is a protected liberty interest, and Wilkinson v. Austin, 545 U.S. 209, 125 S. Ct.

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2384, 162 L. Ed. 2d 174 (2005), which held that an indefinite placement in a harsh

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administrative segregation unit deprived inmates of a protected liberty interest; the latter case

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also summarized the procedural protections for such a deprivation that already had been

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identified by the Supreme Court.

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The Due Process Clause of the Fourteenth Amendment of the U.S. Constitution

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protects individuals against governmental deprivations of life, liberty or property without due

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process of law. Deprivations closely related to the expected terms of confinement may amount

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to deprivations of a procedurally protected liberty interest, provided that state statutes or

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regulations narrowly restrict the power of prison officials to impose the deprivation and that the

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liberty in question is one of "real substance." Sandin v. Conner, 515 U.S. at 484-87. An

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interest of "real substance" generally will be limited to freedom from restraint that imposes

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"atypical and significant hardship on the inmate in relation to the ordinary incidents of prison

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life" or "will inevitably affect the duration of [a] sentence." Id. The Supreme Court later held that

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indefinite placement in a restrictive "supermax" facility, where inmates are not eligible for

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parole consideration, imposes an "atypical and significant hardship within the correctional

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context." See Wilkinson, 545 U.S. at 223-25.

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When placement in administrative segregation implicates a protected liberty interest,

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the next step is to determine what process is due. In Wilkinson, the Court explained that

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administrative segregation placement requires less procedure "than in cases where the right

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at stake is the right to be free from confinement at all." Wilkinson, 545 U.S. at 225 (referring

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to the requirements set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed.

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2d 935 (1974), and Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 33 L. Ed. 2d 484

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(1972)). "Where the inquiry draws more on the experience of prison administrators, and where

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the State's interest implicates the safety of other inmates and prison personnel, the informal,

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nonadversary procedures set forth in [Greenholtz v. Inmates of Neb. Penal and Correctional

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Complex, 442 U.S. 1, 15, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979), and Hewitt v. Helms, 459

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U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983)], provide the appropriate model." Wilkinson,

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545 U.S. at 228-29. In Greenholtz, the Court had determined that the level of process due in

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parole suitability decision included an opportunity to be heard and notice of any adverse

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decision; in Hewitt, the Court had determined that the level of process due for inmates being

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transferred to administrative segregation included some notice of the charges and an

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opportunity to be heard. Wilkinson, 545 U.S. at 229. "[T]hese cases remain instructive for their

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discussion of the appropriate level of procedural safeguards." Id. Accordingly, the "clearly

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established federal law" for purposes of § 2254(d) requires that an inmate being transferred

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to administrative segregation that amounts to an atypical and significant hardship must be

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provided with (1) notice of the charges or reasons such placement is being considered, (2) an

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opportunity to be heard, and (3) notice of any adverse decision.

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The Supreme Court has not held that the procedural protections include any evidentiary

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sufficiency requirement for the decision to place an inmate in administrative segregation. In

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a prison disciplinary hearing, due process requires that there be an evidentiary basis for the

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prison officials' decision. See Superintendent v. Hill, 472 U.S. 445, 455, 105 S. Ct. 2768, 86

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L. Ed. 2d 356 (1985) (standard is met if there is "some evidence" from which the conclusion

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of the administrative tribunal could be deduced). The Supreme Court has not extended

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Superintendent v. Hill to the administrative segregation placement context. Cf. Swarthout v.

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E. D. California

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Cooke, 131 S. Ct. 859, 862, 178 L. Ed. 2d 732 (2011) (implicitly declining to find, for purposes

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of section 2254(d) habeas analysis, that constitutional protections required for parole denial

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included any evidentiary sufficiency requirement). While not required based on Supreme Court

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precedent, the Ninth Circuit and district courts within the circuit have applied the "some

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evidence" standard to an inmate's placement in Secured Housing Unit ("SHU") for gang

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affiliation. See, e.g., Bruce v. Ylst, 351 F.3d 1283, 1287-88 (9th Cir. 2003).

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3.

Petitioner Received His Constitutionally Protected Procedural Rights

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Based on the law as described above, Petitioner has a protected liberty interest at issue

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with regard to indefinite placement in SHU housing. SHU conditions are severe and may affect

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a Petitioner's eligibility for parole. Accord Wilkinson, 545 U.S. at 224 (necessity of harsh

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conditions in light of danger that high-risk inmates pose to prison officials and other inmates

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does not diminish "conclusion that conditions give rise to a liberty interest in their avoidance").

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The potential to spend years in the harsh conditions of the SHU presents an atypical and

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significant hardship and therefore amounts to a deprivation of a protected liberty interest.

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In light of the absence of Supreme Court authority imposing any evidentiary sufficiency

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requirement or any requirement for the reliability of evidence, federal habeas relief cannot be

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granted to Petitioner on the basis of a claim that the placement decision is based on

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insufficient evidence or evidence that lacks sufficient indicia of reliability. Much of Petitioner's

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claims relate to the sufficiency of the evidence used by the institutional gang investigator at

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California Correctional Institution Tehachapi to find Petitioner as an associate of the Mexican

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Mafia (EME) Prison gang. (See Pet. at 26-31.) Petitioner's due process claim based on

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sufficiency and reliability of the evidence therefore must be denied.

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4.

Some Evidence Supported the Administrative Decision

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Assuming Superintendent v. Hill did apply to an administrative segregation placement

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decision, Petitioner's claim fails. Sufficient evidence exists to support the decision to validate

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him as a gang associate. (Pet. at 82-107.) Five pieces of evidence were used by prison

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officials to conclude that Petitioner met the criteria for validation as an associate of the EME

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prison gang. The five pieces of evidence - individually and collectively - provided some

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E. D. California

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evidence to support the validation decision. According to the Kern County Superior Court, the

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decision was based on evidence in the form of communications with known gang members,

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a monitored phone call where a known gang member stated Petitioner has contact with the

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gang, the use of Petitioner’s sister’s address as a mail drop for gang communication,

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information from the Los Angeles County Sheriff’s Department that Petitioner is running an

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outside street gang, and information contained in a letter from gang members in Pelican Bay

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State Prison identifying Petitioner as a gang member. (Pet. at 55-58.) The Kern County

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Superior Court found all the sources but the use of Petitioner’s sister’s address to be reliable.

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Determinations of a factual issue by a state court shall be presumed to be correct. 28 U.S.C.

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§ 2254(e)(1). While Petitioner claims that the evidence relied upon did not meet the

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requirements of the relevant California Code of Regulations, he does not explain how the

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evidence is otherwise unreliable. See 15 Cal. Code Regs. § 3378.

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Thus, even if Superintendent v. Hill's some evidence requirement was a constitutionally

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required procedural protection for administrative segregation placement, the California court's

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rejection of his due process claim would not have been not contrary to or an unreasonable

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application of such requirement. Petitioner is not entitled to relief on this claim. As it appears

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not tenable claims for relief can be pleaded the claim shall be dismissed without leave to

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amend. Jarvis, 440 F.2d 13, 14.

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5.

Petitioner’s First Amendment Rights

Plaintiff alleges that housing him in the SHU based on his status as an associate of a
gang, infringes on plaintiff's First Amendment right to associate. (Pet. at 5.)

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To the extent that plaintiff is purporting to raise a claim pursuant to the First

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Amendment, freedom of association is necessarily curtailed in the prison context. See Dunn

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v. Castro, 621 F.3d 1196, 1202 (9th Cir. 2010) (quoting Overton v. Bazzetta, 539 U.S. 126,

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131-32, 123 S. Ct. 2162, 156 L. Ed. 2d 162 (2003) ("freedom of association is among the

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rights least compatible with incarceration")). In considering a claim based on a prison rule or

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regulation restricting a prisoner's First Amendment rights, the Court applies the factors set

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forth in Turner v. Safley. 482 U.S. 78, 89, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987); see also

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E. D. California

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Johnson v. California, 543 U.S. 499, 510, 125 S. Ct. 1141, 160 L. Ed. 2d 949 (2005) (noting

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that prison regulations that restrict a prisoner's First Amendment rights are not unconstitutional

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if they are reasonably related to legitimate penological interests). The prison rule or regulation

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"must be found reasonable in light of four factors: (1) whether there is a 'valid, rational

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connection' between the regulation and a legitimate government interest put forward to justify

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it; (2) 'whether there are alternative means of exercising the right that remain open to prison

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inmates'; (3) whether accommodation of the asserted constitutional right would have a

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significant impact on guards and other inmates; and (4) whether ready alternatives are absent

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(bearing on the reasonableness of the regulation)." Pierce v. County of Orange, 526 F.3d

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1190, 1209 (9th Cir. 2008) (citing Turner, 482 U.S. at 89-90). As discussed above, it is clear

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that prison officials "have a legitimate penological interest in stopping prison gang activity."

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Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003). Petitioner’s allegations are altogether

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insufficient to raise a reasonable inference that prison rules that permit prison officials to

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sequester a validated gang associate with other validated gang members are not reasonably

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related to a legitimate penological interest.
Accordingly, Petitioner’s First Amendment claim fails.

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III.

CONCLUSION

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As explained above, while Petitioner's claim is potentially cognizable in federal habeas,

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the claim fails on the merits and must be denied as Petitioner received constitutionally

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adequate safeguards at his gang validation proceeding. The Court therefore orders that the

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petition be summarily dismissed.

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IV.

CERTIFICATE OF APPEALABILITY

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A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal

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a district court’s denial of his petition, and an appeal is only allowed in certain circumstances.

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Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining

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whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:

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(a) In a habeas corpus proceeding or a proceeding under section 2255 before
a district judge, the final order shall be subject to review, on appeal, by the court
of appeals for the circuit in which the proceeding is held.

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(b) There shall be no right of appeal from a final order in a proceeding to test the
validity of a warrant to remove to another district or place for commitment or trial
a person charged with a criminal offense against the United States, or to test the
validity of such person’s detention pending removal proceedings.

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(a)

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(1) Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from–

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(A) the final order in a habeas corpus proceeding in
which the detention complained of arises out of
process issued by a State court; or

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(B) the final order in a proceeding under section
2255.
(2) A certificate of appealability may issue under paragraph (1)
only if the applicant has made a substantial showing of the denial
of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall
indicate which specific issue or issues satisfy the showing required
by paragraph (2).

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If a court denies a petitioner’s petition, the court may only issue a certificate of

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appealability “if jurists of reason could disagree with the district court’s resolution of his

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constitutional claims or that jurists could conclude the issues presented are adequate to

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deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529

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U.S. 473, 484 (2000). While the petitioner is not required to prove the merits of his case, he

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must demonstrate “something more than the absence of frivolity or the existence of mere good

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faith on his . . . part.” Miller-El, 537 U.S. at 338.

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In the present case, the Court finds that no reasonable jurist would find the Court’s

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determination that Petitioner is not entitled to federal habeas corpus relief wrong or debatable,

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nor would a reasonable jurist find Petitioner deserving of encouragement to proceed further.

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Petitioner has not made the required substantial showing of the denial of a constitutional right.

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Accordingly, the Court hereby DECLINES to issue a certificate of appealability.

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ORDER

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Accordingly, IT IS HEREBY ORDERED:

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1) The petition for writ of habeas corpus is DISMISSED with prejudice;

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2) The Clerk of Court is DIRECTED to enter judgment and close the case; and

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E. D. California

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3) The Court DECLINES to issue a certificate of appealability.

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IT IS SO ORDERED.

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Dated:
ci4d6

March 26, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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U.S. District Court
E. D. California

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