(HC) Rood v. Department of Corrections

Filing 32

FINDINGS and RECOMMENDATIONS recommending that Respondent's Motion to Dismiss 20 be granted and the petition be DISMISSED; Petitioner be DENIED a Certificate of Appealability re 20 Motion to Dismiss ; referred to Judge Ishii, signed by Magistrate Judge Helena M. Barch-Kuchta on 03/16/2021. 9to F&R due within 30-Day Deadline)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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COLTON JAMES ROOD,

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Plaintiff,

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v.

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DEPARTMENT OF CORRECTIONS,

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Defendant.

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No. 1:20-cv-01018-AWI-HBK

FINDINGS AND RECOMMENDATIONS TO
GRANT RESPONDENT’S MOTION TO
DISMISS1
OBJECTIONS DUE IN THIRTY DAYS
(Doc. No. 20)

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Petitioner Colton James Rood, a state prisoner, has pending a pro se petition for writ of

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habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1). After being directed to show cause why the

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petition should not be granted, respondent filed a motion to dismiss. (Doc. No. 20). Petitioner

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filed an opposition to the motion to dismiss and respondent filed a reply. (Doc. Nos. 23, 28). For

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the reasons stated below, the undersigned recommends that respondent’s motion to dismiss be

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granted and the petition be dismissed as unexhausted.

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I.

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BACKGROUND
Petitioner initiated this case on June 28, 2019 by filing the instant petition. (Doc. No. 1).

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This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302
(E.D. Cal. 2019).

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Petitioner is currently serving a term of years prison sentence for his conviction for committing a

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lewd act with a child under the age of 14. (Doc. 20-1 at 8). While incarcerated, petitioner was

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charged with indecent exposure and was issued a prison rule violation report. (Doc. No. 1 at 1).

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At the July 1, 2018 rule violation hearing, petitioner was found guilty of the violation and was

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sanctioned with the loss of 150 days of good time credit. (Id.). Petitioner claims that his rule

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violation hearing was unfair. (See generally Doc. 1). Specifically, petitioner claims that the

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prison staff was biased against him, that false information was presented at the hearing, that he

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was prevented from presenting witnesses in his defense, and that the hearing officer used the

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incorrect standard of review. (Id. at 5-10). As relief, petitioner seeks to have his finding of guilt

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to the rule violation overturned and expunged from his record, as well as monetary damages for

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“this injustice.” (Id. at 15).2
Petitioner appealed his guilty finding to the third level of his prison’s administrative

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review process. (Id. at 6). While petitioner filed two unrelated state habeas petitions in the state

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court,3 he acknowledges that he did not seek state court review of his claims concerning his rule

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violation hearing. (Id. at 5). Respondent moves to dismiss the petition on the grounds that

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petitioner has failed to exhaust his claims before the state courts. (See generally Doc. No. 20).

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II.

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APPLICABLE LAW AND ANALYSIS
A petitioner in state custody who wishes to proceed on a federal petition for a writ of

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habeas corpus must exhaust state judicial remedies. See 28 U.S.C. § 2254(b)(1). Exhaustion is a

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“threshold” matter that must be satisfied before the court can consider the merits of each claim.

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Day v. McDonough, 547 U.S. 198, 205 (2006). The exhaustion doctrine is based on comity and

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permits the state court the initial opportunity to resolve any alleged constitutional deprivations.

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See Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982).

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Money damages are not available in a habeas action. To the extent petitioner contends his constitutional
rights were violated and seeks monetary damages, he must file a civil rights complaint under 42 U.S.C. §
1983. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Muhammad v. Close, 540 U.S. 749, 750
(2004).

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In his unrelated state court habeas petitions, petitioner attacks his underlying criminal conviction on Sixth
Amendment right to counsel grounds. (See Doc. No. 20-1 at 2-23, 38-59, 61-79).
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To satisfy the exhaustion requirement, petitioner must provide the highest state court with a full

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and fair opportunity to consider each claim before presenting it to the federal court. See

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O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 U.S. 364, 365 (1995).

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The burden of proving exhaustion rests with the petitioner. Darr v. Burford, 339 U.S. 200, 218

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(1950) (overruled in part on other grounds by Fay v. Noia, 372 U.S. 391 (1963)). A failure to

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exhaust may only be excused where the petitioner shows that “there is an absence of available

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State corrective process” or “circumstances exist that render such process ineffective to protect

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the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(i)-(ii).

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In California, inmates challenging prison disciplinary sanctions must exhaust both their

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administrative remedies at their place of incarceration and their judicial remedies through state

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writs of habeas corpus before seeking federal habeas relief. See Johnson v. Mojica, No.

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H042496, 2016 Cal. App. Unpub. LEXIS 6178, at *26 (Cal. App. 4th 2016) (“There is an

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adequate remedy in the ordinary course of law for inmate challenges to prison discipline after

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the exhaustion of administrative remedies: a writ of habeas corpus.”); Roundtree v. Carey, No.

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CIV S-05-2061-LKK-CMK-P, 2005 U.S. Dist. LEXIS 31522, at *5 (E.D. Cal. 2005) (“Petitioner

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must first seek to have the rules violation determination invalidated via state habeas proceedings

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before returning to the federal court.”).

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Here, petitioner concedes that did not exhaust his claims in the state court. (Doc. No. 1 at

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5). Petitioner claims he did not seek state court review of his claims because he feared that

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certain state court judges would retaliate against him for seeking relief and he would not get a fair

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hearing. (Ibid.). Petitioner’s explanation based on his unsubstantiated distrust in the state judicial

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process does not excuse his failure to exhaust his claims—he has neither shown there is an

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absence of state corrective process, nor has he shown that circumstances exist that render the state

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habeas process ineffective. If petitioner has proof that might persuade the court to find otherwise,

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he should present such evidence in his response to these findings and recommendations. Because

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petitioner has failed to exhaust his claims, the undersigned recommends the respondent’s motion

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to dismiss be granted and the petition be dismissed.

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III.

CERTIFICATE OF APPEALABILITY
A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district

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court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253;

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Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing § 2254 Cases requires a

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district court to issue or deny a certificate of appealability when entering a final order adverse to a

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petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th

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Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial

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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires

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the petitioner to show that “jurists of reason could disagree with the district court’s resolution of

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his 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; accord Slack v.

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McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made a substantial showing of the

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denial of a constitutional right. Thus, the court recommends that the court not issue a certificate

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of appealability.

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Accordingly, it is RECOMMENDED:

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1. Respondent’s motion to dismiss (Doc. No. 20) be granted and the petition be dismissed.

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2.

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Petitioner be denied a certificate of appealability.
NOTICE TO PARTIES

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These findings and recommendations will be submitted to the United States district judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30)

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days after being served with these findings and recommendations, a party may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Parties are advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:
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March 16, 2021
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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