Alcala v. Martel

Filing 37

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 10/9/2014 RECOMMENDING that the 1 instant petition be deemed timely filed on the bases of equitable tolling; that relief be denied on the merits for the reasons stated in these findings and recommendations; and petitioner's federal habeas corpus petition be dismisses with prejudice. Referred to Judge Kimberly J. Mueller; Objections due within 21 days. (Yin, K)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10

JOSEPH G. ALCALA,

11

Petitioner,

12
13

No. 2:10-cv-03448 KJM AC P

v.

FINDINGS AND RECOMMENDATIONS

MIKE MARTEL, et al.,

14

Respondents.

15
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for

16
17

writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition challenges a 2008 prison

18

disciplinary proceeding for obstructing a peace officer in the performance of his duties. The

19

disciplinary violation involved petitioner’s refusal to accept a cellmate. ECF No. 1.

20

I.

21

Procedural History
A brief procedural history of the case is provided as context for the current position of the

22

parties. Respondents’ first motion to dismiss was denied on April 11, 2013, in an order finding

23

petitioner’s claims cognizable in a habeas corpus action. See ECF Nos. 21 (Findings and

24

Recommendation); 24 (Order). The remaining argument in the motion to dismiss was denied

25

without prejudice by Order of June 3, 2013. ECF No. 25. Respondents were allowed to renew

26

their argument if they could demonstrate that petitioner’s incarceration was unaffected by his 90

27

day loss of behavior credit and that the procedural due process protections of Wolff v.

28

McDonnell, 418 U.S. 539 (1974), did not apply to his disciplinary conviction. Id. at 2-3. In the
1

1

alternative, respondents were ordered to file an answer to the petition. Id. at 3.

2

On July 5, 2013, respondents renewed their argument that no clearly established federal

3

law prescribes what process is due for a prison disciplinary decision that does not deprive the

4

prisoner of credits that actually reduce his period of incarceration. After full briefing, the motion

5

to dismiss was once again denied on March 26, 2014. ECF Nos. 34 (Order); 32 (Findings and

6

Recommendations). Respondents were ordered to file an answer to the petition.

7

On May 27, 2014, respondents filed their answer, ECF No. 35, contending that (1) the

8

petition was untimely filed, (2) the court lacks jurisdiction over the petition because any relief

9

would not result in petitioner’s speedier release from custody,1 and (3) even on the merits

10

petitioner is not entitled to any relief because the state court decision was not contrary to nor an

11

unreasonable application of clearly established federal law. ECF No. 35. Petitioner filed his

12

traverse on June 18, 2014. ECF No. 36. Accordingly, the habeas petition is fully briefed and ripe

13

for adjudication.

14

II.

15

Federal Habeas Petition
Petitioner, who is serving a sentence of 15 years to life, alleges that on July 3, 2008

16

he returned to Mule Creek State Prison from a hospital where he was receiving chemotherapy

17

treatment for stage four lymphoma. Upon his return, he was placed in Administrative

18

Segregation (“Ad Seg”) on a “non-disciplinary” hold, instead of in the hospital’s infirmary. See

19

ECF No. 35-1 at 27. He asserts that he was held in Ad Seg without the benefit of having a

20

classification hearing to be classified as an “Inmate Medical Patient,” in violation of the due

21

process clause of the Fourteenth Amendment. Due to his medical condition, petitioner was

22

admitted to San Joaquin General Hospital on July 11, 2008 and discharged on July 21, 2008. See

23

ECF No. 35-3 at 23-25 (Transfer Summary from San Joaquin General Hospital). Following his

24

July 21, 2008 return to Ad Seg, petitioner claims that he received an improper rules violation

25

report (“RVR”) for refusing to accept a cell-mate. Petitioner was issued the RVR on July 25,

26

1

27
28

Respondents do not renew the jurisdictional argument, which was previously rejected by the
court, in their memorandum of points and authorities. Because the matter has been previously
adjudicated, the undersigned will not revisit the issue here. See ECF Nos. 21 (Findings and
Recommendation), 24 (Order).
2

1

2008 for his failure to comply with a direct order to double cell on July 24, 2008. See ECF No.

2

35-1 at 33 (copy of RVR). Although petitioner contends that he should have been exempt from

3

accepting a cell-mate in light of his medical condition, he was found guilty at the hearing on the

4

RVR on August 15, 2008. See ECF No. 35-1 at 34-35. He was assessed a 90 day loss of

5

behavior credit for the disciplinary violation. Petitioner, whose last RVR was in 1994, argues that

6

he suffered harm because he was denied parole in 2010 after the Board of Parole Hearings relied

7

on the 2008 RVR in finding that he was unsuitable for release on parole.

8

III.

9

Respondent’s Answer
As an initial basis to deny relief, respondents assert that the federal habeas petition was

10

untimely filed. ECF No. 35 at 4. Respondents contend that the statute of limitations commenced

11

on January 7, 2009, the day following the exhaustion of petitioner’s administrative remedies and

12

thus the date the factual predicate of his claim was discovered. Id. at 4 (citing Redd v. McGrath,

13

343 F.3d 1077, 1082 (9th Cir. 2003)). The statute of limitations then ran for a period of 69 days

14

until petitioner filed his first state habeas corpus petition in the trial court on March 17, 2009. Id.

15

Respondents concede that petitioner is entitled to statutory tolling until November 10, 2009 when

16

the California Supreme Court denied his state habeas petition. Id. Thus, by respondents

17

calculation, the federal habeas petition was filed 112 days late. Id. However, this calculation

18

does not acknowledge the possibility that equitable tolling could render the federal petition

19

timely.

20

The second ground upon which respondents rely is based on the merits of petitioner’s due

21

process claim. Respondents invoke CDCR regulations to assert that the due process protections

22

of Wolff v. McDonnell, 418 U.S. 539 (1974) and Superintendent v. Hill, 472 U.S. 445, 454

23

(1985), do not apply to petitioner because the credit loss resulting from his disciplinary hearing

24

will not affect his release date since he already passed his minimum eligible parole date. Id. at 6.

25

They further argue that petitioner is barred from relief under the AEDPA because granting the

26

instant petition would require extending the holding of Wolff to a situation where its application

27

is not clearly established. Id. at 7. Doing so, respondents contend, would lead to the conflicting

28

result that while a federal court cannot examine the substance of parole authorities’ ultimate
3

1

decision to deny parole pursuant to Swarthout v. Cooke, 562 U.S. 216 (2011), it can review the

2

substantive information relied upon by the parole board by applying a heightened level of due

3

process protections. Id.

4

IV.

5

Petitioner’s Traverse
With respect to respondent’s statute of limitations defense, petitioner contends that he was

6

diligent in pursuing his administrative, state, and federal remedies following his disciplinary

7

hearing. ECF No. 36 at 7-9. He commenced a federal habeas action challenging this disciplinary

8

conviction on December 8, 2009. Id. at 8. However, that original petition as well as a subsequent

9

one was both dismissed with leave to amend. Id. at 8-9. Petitioner merely followed the federal

10

district court’s instructions to proceed with his issues by filing a civil rights complaint pursuant to

11

42 U.S.C. § 1983. Id. at 9. It was not until October 26, 2010 that petitioner was instructed to file

12

a separate habeas corpus petition challenging his disciplinary conviction. Id. at 9. Once again,

13

petitioner followed the district court’s instructions and filed the instant federal habeas corpus

14

petition on December 22, 2010.2 Id.

15

On the merits of his due process claim, petitioner asserts that prison officials violated their

16

own rules and regulations by not affording him an Ad Seg classification hearing within 10 days of

17

his placement in that unit. ECF No. 36 at 5. In fact, he alleges that he was held in Ad Seg for 33

18

days without the benefit of any hearing conducted by the Classification Committee. Id. As a

19

result of this failure to determine whether petitioner’s ongoing Ad Seg placement was proper, he

20

received a RVR when he refused to double cell with another inmate who was placed in Ad Seg

21

for “fighting, violence and choking-out his previous cellmate.” Id. at 5. Petitioner alleges that he

22

had a liberty interest protected by the due process clause that was violated once this RVR was

23

relied upon by the Board of Parole Hearings to deny him release in 2010. Id. at 6.

24

V.

Statute of Limitations

25

The court will first address respondents’ argument that the instant federal petition should

26

be dismissed as time-barred. Section 2244(d)(1) of Title 28 of the United States Code contains a

27
28

2

Petitioner’s state and federal habeas petitions are entitled to the benefit of the prison mailbox
rule in determining their constructive filing date. See Houston v. Lack, 487 U.S. 266 (1988).
4

1

one year statute of limitations for filing a habeas petition in federal court. The one year clock

2

commences from one of several alternative triggering dates. See 28 U.S.C. § 2244(d)(1). The

3

parties agree that the triggering mechanism for challenges to prison disciplinary proceedings is

4

“the date on which the factual predicate of the claim or claims presented could have been

5

discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D); see also Redd v.

6

McGrath, 343 F.3d 1077, 1082 (9th Cir. 2003). In this case the statute of limitations commenced

7

on January 7, 2009, the day following the completion of the prison’s administrative appeal

8

process and thus the date the factual predicate of petitioner’s claims was discovered. The statute

9

of limitations expired one year later on January 7, 2010, absent any statutory or equitable tolling.

10

A.

11

Under the AEDPA, the statute of limitations is tolled during the time that a properly filed

Statutory Tolling

12

application for state post-conviction or other collateral review is pending in state court. 28 U.S.C.

13

§ 2244(d)(2). Petitioner filed his first state habeas corpus petition in the Amador County Superior

14

Court on March 17, 2009, thus tolling the statute of limitations. It remained tolled until

15

November 10, 2009, the day the California Supreme Court denied petitioner’s state habeas corpus

16

petition. Thus, with the added benefit of statutory tolling, the one year statute of limitations was

17

extended until September 3, 2010, rendering the federal petition untimely filed by 110 days.

18

B.

19

A habeas petitioner is entitled to equitable tolling of AEDPA's one-year statute of

20

limitations only if the petitioner shows: (1) that he has been pursuing his rights diligently; and (2)

21

that some extraordinary circumstance stood in his way and prevented timely filing. See Holland

22

v. Florida, 560 U.S. 631 (2010); Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). An

23

“extraordinary circumstance” has been defined as an external force that is beyond the inmate’s

24

control. Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). The diligence required for

25

equitable tolling purposes is “reasonable diligence,” not “maximum feasible diligence.” See

26

Holland, 560 U.S. at 2565; see also Bills v. Clark, 628 F.3d 1092, 1096 (9th Cir. 2010).

Equitable Tolling

27

In their answer, respondents do not acknowledge the availability of equitable tolling

28

which could render the petition timely filed. Liberally construed, petitioner’s traverse seeks
5

1

equitable tolling on grounds that the district court’s dismissal of petitioner’s prior federal habeas

2

petitions in Case No. 2:09-cv-03407-KJM-JFM was erroneous and resulted in the untimely filing

3

of the current petition. See Haines v. Kerner, (requiring liberal construction of pro se pleadings);

4

see also Sossa v. Diaz, 729 F.3d 1225 (9th Cir. 2013) (granting equitable tolling based on

5

petitioner’s justified reliance on several magistrate judge orders extending the deadline to file an

6

amended petition following an initial screening order that dismissed the original petition with

7

leave to amend). Without specifically requesting equitable tolling, petitioner asserts that he was

8

merely following the instructions contained in the district court’s orders in Case No. 2:09-cv-

9

03407-KJM-JFM. Accordingly, the court will review the procedural history of petitioner’s

10
11

related case of 2:09-cv-03407-KJM-JFM to determine whether equitable tolling is warranted.
Petitioner submitted a § 2254 petition on December 6, 2009 that was filed in this court as

12

Case No. 2:09-cv-03407-KJM-JFM. The court construed petitioner’s habeas claims as

13

challenging his “placement in Administrative Segregation instead of the prison infirmary

14

following his return from a hospital where he was treated for cancer and… [an] unwarranted rule

15

violation for refusing to accept a cell-mate while in Administrative Segregation.” See ECF Nos.

16

1, 5 in Case No. 2:09-cv-03407-KJM-JFM. On January 19, 2010 this habeas petition was

17

dismissed with leave to file it as a civil rights action pursuant to 42 U.S.C. § 1983. See ECF No.

18

5 in Case No. 2:09-cv-03407-KJM-JFM. Petitioner filed an amended § 2254 petition on February

19

13, 2010 raising the same claims as in his original habeas petition. See ECF No. 8 in Case No.

20

2:09-cv-03407-KJM-JFM. On March 4, 2010, the amended § 2254 petition was once again

21

dismissed with leave to file it as a civil rights complaint because “the amended petition sets forth

22

claims cognizable in a § 1983 suit and not a § 2254 petition.” See ECF No. 9 in Case No. 2:09-

23

cv-03407-KJM-JFM.

24

After receiving an extension of time, petitioner filed a civil rights complaint on April 28,

25

2010 which still contained the due process challenge to petitioner’s 2008 prison disciplinary

26

proceeding. See ECF No. 12 in Case No. 2:09-cv-03407-KJM-JFM. Before the court could

27

screen this § 1983 complaint, petitioner filed what is identified on the docket as a second

28

amended civil rights complaint on June 18, 2010. See ECF No. 17 in Case No. 2:09-cv-034076

1

KJM-JFM. The district court’s screening order of October 27, 2010 dismissed petitioner’s due

2

process challenge to the prison disciplinary finding, but granted leave to file it as a § 2254

3

petition, which is what petitioner had done at the outset. See ECF No. 19 in Case No. 2:09-cv-

4

03407-KJM-JFM. Consistent with the district court’s order, petitioner filed the instant federal

5

habeas petition on December 22, 2010 which was opened as a separate habeas corpus action

6

related to the pending civil rights complaint. See ECF No. 6 (Related Case Order).

7

The above case history suggests, indeed almost commands, that equitable tolling be

8

granted. Here, petitioner timely filed a § 2254 petition raising the same challenges as the present

9

petition not just once but twice, only to be rebuffed by the court which repeatedly instructed

10

petitioner to file the claims as a § 1983 complaint. Once petitioner complied with the court’s

11

instructions to file the claims as a § 1983 action, the court changed its position and directed

12

petitioner to file his prison disciplinary challenge as a § 2254 petition. See Pliler v. Ford, 542

13

U.S. 225, 235 (O'Connor, J., concurring) (providing the fifth vote for the majority and stating that

14

“if the petitioner is affirmatively misled, either by the court or by the State, equitable tolling

15

might well be appropriate.”). By that time, the statute of limitations had already expired. This is

16

a classic example of a circumstance beyond petitioner’s control that warrants equitable tolling.

17

See Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999); see also Sossa v. Diaz, 729 F.3d 1225

18

(9th Cir. 2013).

19

The only remaining question is whether petitioner has been pursuing his rights diligently.

20

In this case there is no indication that petitioner sat on his rights. Indeed, unlike many prisoners

21

who request multiple extensions of time to file amended petitions or complaints, here petitioner

22

relied on a single extension of time in Case No. 2:09-cv-03407-KJM-JFM. Petitioner diligently

23

complied with the court’s orders and filing deadlines. Accordingly, he is entitled to equitable

24

tolling from December 6, 2009, the date he filed his original habeas petition in Case No. 2:09-cv-

25

03407-KJM-JFM, until December 22, 2010, the date he filed the instant habeas petition.

26

For these reasons, the undersigned recommends rejecting respondent’s argument that the

27

instant petition be dismissed on the basis of the statute of limitations. Accordingly, the

28

undersigned will proceed to review the petition on the merits.
7

1

VI.

2

Standard of Review on the Merits
Ignoring the undersigned’s Findings and Recommendations of January 3, 2014 (ECF No.

3

32), which were adopted by Order of March 26, 2014 (ECF No. 34), respondents argue that

4

AEDPA’s standard of deferential review applies to this case. ECF No. 35 at 4-6. The court made

5

clear in its prior Findings and Recommendations that the lodged state court record submitted in

6

support of respondent’s motion to dismiss failed to demonstrate that petitioner’s due process

7

challenge was “adjudicated on the merits” in state court proceedings. ECF No. 32 at 4-5. Even

8

with their answer, respondents failed to produce a copy of the California Supreme Court order

9

denying petitioner’s state habeas application. The only evidence produced with the answer was a

10

printout from the California Appellate Courts Case Information website which indicates the date

11

the California Supreme Court ruled on petitioner’s state habeas application with a notation

12

indicating that it was denied. ECF No. 35-8 at 2. Once again, respondents’ failure to produce a

13

copy of the California Supreme Court decision prevents this court from determining whether

14

AEDPA deference applies to petitioner’s due process challenges. Accordingly, the undersigned

15

will assume without deciding that de novo review applies to petitioner’s due process claims.

16

VII.

17

Merits
Petitioner’s habeas application presents three grounds for relief. Petitioner first alleges

18

that Mule Creek State Prison officials acted with deliberate indifference to his medical condition

19

in violation of the Eighth Amendment. ECF No. 1 at 12, 15-17. The Findings and

20

Recommendations of November 2, 2012 (ECF No. 21 at 1-2 & n.1) found this claim duplicative

21

of that raised in petitioner’s related § 1983 case. See Case No. 2:09-cv-3407-KJM-JFM. These

22

Findings and Recommendations were adopted in relevant part by Order of April 11, 2013 (ECF

23

No. 24). Petitioner’s first claim has already been dismissed as duplicative. It is also barred in this

24

action by res judicata, because the related case has resulted in a final judgment. See Robi v. Five

25

Platters, Inc., 838 F.2d 318, 321-22 (9th Cir. 1988).

26

Petitioner’s second and third claims are closely related. Petitioner asserts in Ground Two

27

that his placement in Ad Seg without a classification hearing violated his due process rights in

28

violation of Wolff v. McDonnell, 418 U.S. 539 (1974) and Sandin v. Conner, 515 U.S. 472
8

1

(1995). ECF No. 1 at 12, 18-20. Ground Three claims that petitioner’s “unwarranted” RVR for

2

refusing double-celling was invalid because proper classification would have exempted him from

3

double-celling on the basis of his medical condition; his denial of parole on the basis of the RVR

4

thus wrongly deprived him of a liberty interest. Id. at 13, 21-22. As a remedy, petitioner asks the

5

court to reverse the guilty finding from the RVR hearing and to expunge all references to this

6

disciplinary charge from his central prison file. ECF No. 1 at 13.

7

The court has already held that petitioner’s interwoven challenges to his Ad Seg

8

placement and RVR determination are cognizable in habeas because the RVR, historically

9

predicated on the fact and terms of petitioner’s Ad Seg placement, cost petitioner good-time

10

credits and formed a basis for the denial of parole. ECF Nos. 21, 24, 32, 34.3 Habeas relief is

11

appropriate if, and only if, the adverse disciplinary finding – the decision with nexus to the

12

duration of petitioner’s confinement, and thus the only decision reviewable in habeas – is itself

13

constitutionally infirm. Petitioner offers two possible bases for the infirmity of the disciplinary

14

finding: (1) the disciplinary charge was unwarranted and the guilty finding invalid because

15

petitioner should not have been required to double-cell in the first place, due to his medical

16

condition, and (2) the disciplinary finding is invalid because petitioner’s underlying Ad Seg

17

placement was invalid, due to the lack of a classification hearing.

18

Petitioner has presented a novel due process claim for which this court cannot grant relief,

19

even under a de novo standard of review. Under either of petitioner’s theories, the disciplinary

20

finding is alleged to be invalid because of a due process violation earlier in the chain of events

21

that led to the charge, and independent of the RVR process itself. This court’s review of a prison

22

disciplinary decision is limited. The only cognizable issues are (1) substantively, whether the

23

disciplinary finding was supported by “some evidence” as required by Superintendent v. Hill, 472

24

U.S. 445, 454 (1985); and (2) procedurally, whether the disciplinary hearing itself afforded

25

petitioner the minimum procedural protections required by Wolff v. McDonnell, 418 U.S. 539,

26

3

27
28

See Docken v. Chase, 393 F.3d 1024, 1028 (9th Cir. 2004) (“[H]abeas corpus jurisdiction exists
when a petitioner seeks expungement of a disciplinary finding from his record if expungement is
likely to accelerate the prisoner's eligibility for parole.”).
9

1
2

563-68 (1974). The court addresses these issues in turn.
A federal court may invalidate a prison disciplinary finding that affects the duration of

3

custody only where there is a complete absence of evidence to support the finding. See Hill, 472

4

U.S. at 454 (due process requires “some evidence”); see also Burnsworth v. Gunderson, 179 F.3d

5

771, (9th Cir. 1999) (even after Sandin, federal court may order expungement of a disciplinary

6

finding that is not supported by “some evidence”). Here, the record reflects the existence of

7

evidence that petitioner refused an order to double-cell. Petitioner does not contend otherwise; he

8

admits that he refused to double-cell, because he believed that he should not be required to do so

9

for medical reasons. The undisputed existence of “some evidence” to support the findings

10
11

satisfies Hill and takes the disciplinary finding outside the reach of this court.
What petitioner really means is that his refusal to double-cell should have been excused at

12

or before the RVR hearing because of his medical status. However, no legal authority supports

13

the proposition that a prison violates due process, entitling the prisoner to habeas relief from a

14

disciplinary finding that is supported by some evidence, by failing to consider or provide medical

15

exemptions to general disciplinary rules.

16

Regarding the applicable procedural protections, petitioner does not allege that he failed to

17

receive notice and a Wolff-compliant hearing in relation to the RVR. Petitioner’s procedural due

18

process theory focuses instead on his initial assignment to Ad Seg and the concomitant order for

19

double-celling. The specific procedures required under Wolff for deprivation of good-time

20

credits are not required for lesser penalties such as segregation. See Wolff, 418 U.S. at 571-72 &

21

n.19; Hewitt v. Helms, 459 U.S. 460, 476 (1982); Toussaint v. McCarthy, 801 F.2d 1080, 1100-

22

01 (9th Cir. 1986). The Due Process Clause does not create a liberty interest in a particular

23

classification. Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); see also McFarland v. Cassady,

24

779 F.2d 1426, 1428 (9th Cir. 1985) (constitution does not create a liberty interest in remaining in

25

the general population). Even if petitioner’s alleged placement in Ad Seg for non-disciplinary

26

purposes -- when prison regulations required that he instead be classified as an inmate medical

27

patient -- constituted an “atypical and significant hardship. . . in relation to the ordinary incidents

28

of prison life,” Sandin, 515 U.S. at 484, it does not follow that the subsequent disciplinary
10

1

finding violated due process.

2

There is no legal authority for the proposition that an error in classification, even

3

classification that violates prison regulations or due process, renders unconstitutional a

4

subsequent and independent disciplinary charge for failing to comply with the terms of the

5

classification. Plaintiff’s remedy for inappropriate classification, or improper use of Ad Seg as a

6

medical bed, lay in the administrative appeals process and possible judicial review in the civil

7

rights context.4 The fact of an inappropriate classification, however, does not exempt an inmate

8

from compliance with applicable regulations while challenging that classification, or support

9

habeas relief from a subsequent disciplinary finding.

10

If AEDPA applies to this case as respondent contends, the lack of clearly established

11

federal law to support petitioner’s due process theory would begin and end the analysis. See

12

Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam) (where no Supreme Court

13

precedent controls a legal issue, the state court’s denial of relief cannot be unreasonable within

14

the meaning of AEDPA). Even under pre-AEDPA standards, the court lacks authority to order

15

expungement of a prison disciplinary violation that was supported by some evidence, where the

16

inmate’s rights under Wolff were not violated in relation to the disciplinary hearing itself.

17

Accordingly, IT IS HEREBY RECOMMENDED that:

18

1. The instant petition be deemed timely filed on the basis of equitable tolling;

19

2. That relief be denied on the merits for the reasons stated herein; and,

20

3. Petitioner’s federal habeas corpus petition be dismissed with prejudice.

21

These findings and recommendations are submitted to the United States District Judge

22

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days

23

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

24

objections with the court and serve a copy on all parties. Such a document should be captioned

25

4

26
27
28

As noted previously in discussion of equitable tolling, petitioner initially filed his challenges to
the RVR together with a challenge to the conditions of his confinement. See Case No. 2:09-cv03407-KJM-JFM, ECF No. 97 at 7. The court has acknowledged that confusion regarding the
proper vehicle for the instant claims characterized the earlier stages of this litigation. However,
petitioner’s complaints about his Ad Seg placement have consistently been presented in the
context of his challenge to the RVR, and not as a free-standing basis for relief of any kind.
11

1

“Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections,

2

he shall also address whether a certificate of appealability should issue and, if so, why and as to

3

which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the

4

applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

5

2253(c)(3). Any response to the objections shall be filed and served within fourteen days after

6

service of the objections. The parties are advised that failure to file objections within the

7

specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

8

F.2d 1153 (9th Cir. 1991).

9

DATED: October 9, 2014

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12