Newton v. Arnold

Filing 8

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/27/15 ORDERING that the petition is dismissed without leave to amend and the court declines to issue a certificate of appealability. CASE CLOSED. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARRYL DAVONN JOHN NEWTON,

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No. 2:14-cv-2049-EFB P

Petitioner,
v.

ORDER

ERIC ARNOLD, Warden,

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Respondent.

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Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28
U.S.C. § 2254.1 He has paid the filing fee.
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 not

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entitled to relief. See Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) (Rule 4 “explicitly

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allows a district court to summarily dismiss the petition on the merits when no claim for relief is

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stated”). Moreover, the Advisory Committee Notes to Rule 8 of the Rules Governing Section

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2254 Cases indicate that the court may dismiss a petition for writ of habeas corpus on its own

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motion under Rule 4. However, the court should not dismiss a petition without leave to amend

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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
§ 636(b)(1) and is before the undersigned pursuant to petitioner’s consent. See 28 U.S.C. § 636;
see also E.D. Cal. Local Rules, Appx. A, at (k)(4).
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unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v.

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Nelson, 440 F.2d 13, 14 (9th Cir. 1971). For the reasons explained below, the petition is

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dismissed, without leave to amend, on the ground that the claims raised therein are neither

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cognizable nor exhausted.2

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Petitioner claims that he has accumulated nine rule violation reports and eleven custodial

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counseling reports since being incarcerated. He seeks habeas relief to have his disciplinary

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record expunged because the Board of Parole Hearings repeatedly cites his institutional behavior

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as a reason to deny him parole. Petitioner claims that he received a rules violation report after his

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last parole suitability hearing in 2013. He fears that this disciplinary infraction will prevent him

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from advancing the hearing date for his next parole suitability hearing, which is not set to occur

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until the year 2020. He argues that if the Board were to exclude his institutional behavior in

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considering him for parole, it is more likely that he would be found suitable, thereby affecting the

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duration of his confinement. He also complains that his disciplinary record will “come back to

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haunt” him at future hearings and will make it “very hard” to get out of prison.

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The fact that the Board has and will consider petitioner’s disciplinary record in

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determining his suitability for parole is not a proper basis for federal habeas relief. As petitioner

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acknowledges throughout his petition, institutional behavior is an appropriate factor for the Board

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to consider in determining an inmate’s suitability for parole. See Cal. Code Regs. tit. 15,

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§ 2402(c)(6) (listing “serious misconduct in prison or jail” as “circumstance tending to show

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unsuitability”). Thus, it is entirely proper for the Board to consider petitioner’s pattern of

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misconduct in determining whether he is suitable for parole. “Habeas relief is appropriate if, and

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only if, the adverse disciplinary finding — the decision with nexus to the duration of petitioner’s

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confinement, and thus the only decision reviewable in habeas — is itself constitutionally infirm.”

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Alcala v. Martel, No. 2:10-cv-3448-KJM-AC, 2014 U.S. Dist. LEXIS 145515, at *16 (E.D. Cal.

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Oct. 9, 2014). Petitioner does not claim that any of his nine rule violation reports and eleven

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custodial counseling reports is constitutionally infirm, and thus, fails to state a cognizable claim

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The court may raise the failure to exhaust issue sua sponte and may summarily dismiss
on that ground. See Stone v. San Francisco, 968 F.2d 850, 856 (9th Cir. 1992).
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for federal habeas relief. See 28 U.S.C. § 2254 (habeas corpus available for violations of the

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Constitution or federal law.)

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Petitioner also claims that he was “not required to exhaust the claims raised” in his

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petition and that he “is eligible to file . . . in the United States District Court which is the only

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available corrective process open to [him].” ECF No. 1 at 3. Petitioner is mistaken.

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A district court may not grant a petition for a writ of habeas corpus unless “the applicant

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has exhausted the remedies available in the courts of the State,” or unless there is no State

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corrective process or “circumstances exist that render such process ineffective to protect the rights

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of the applicant.” 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by

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presenting the “substance of his federal habeas corpus claim” to the state courts. Picard v.

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Connor, 404 U.S. 270, 278 (1971); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). For a

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California prisoner to exhaust, he must present his claims to the California Supreme Court on

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appeal in a petition for review or on post-conviction in a petition for a writ of habeas corpus. See

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Carey v. Saffold, 536 U.S. 223, 239-40 (2002) (describing California’s habeas corpus procedure);

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Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (to exhaust, prisoner must present claims on

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appeal to California Supreme Court in a petition for review). Unless the respondent specifically

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consents to the court entertaining unexhausted claims, a petition containing such claims must be

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dismissed. See 28 U.S.C. § 2254(b)(3); Picard, 404 U.S. at 275.

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Here, petitioner concedes he has not exhausted his claim and does not purport to have

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obtained from the respondent an express waiver of the exhaustion requirement. Thus, petitioner

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has failed to exhaust state court remedies, as the California Supreme Court has not yet had the

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opportunity to resolve petitioner’s claim on its merits. See Greene v. Lambert, 288 F.3d 1081,

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1086 (9th Cir. 2002). This action must therefore be summarily dismissed.

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Accordingly, IT IS HEREBY ORDERED that the petition is dismissed without leave to

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amend and the court declines to issue a certificate of appealability.

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DATED: April 27, 2015.

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