Gonzalez v. Busby

Filing 13

ORDER by Judge Edward M. Chen Denying 10 Respondent's Motion to Dismiss. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 7/17/2012)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

EDWIN N. GONZALEZ,

9

Petitioner,
v.

11
For the Northern District of California

United States District Court

10

TIMOTHY BUSBY, Warden,

12

No. C-12-0124 EMC (pr)
ORDER DENYING RESPONDENT’S
MOTION TO DISMISS

Respondent.
___________________________________/

(Docket No. 10)

13
14
15

Edwin N. Gonzalez, an inmate at the Correctional Training Facility in Soledad, filed this pro

16

se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge a prison disciplinary

17

decision. Respondent has moved to dismiss the petition. The motion to dismiss is patently meritless

18

and must be denied.

19

Respondent inexplicably argues that “Gonzalez does not invoke federal habeas corpus

20

jurisdiction.” Motion To Dismiss, p. 1. The petition did “invoke” federal habeas jurisdiction by

21

citing 28 U.S.C. § 2254 on the first page of the form habeas petition, and by identifying in the text

22

that the rights allegedly violated were federal due process rights. With regard to the denial of the

23

investigative employee, the petition alleged that Gonzalez’s “right to present a defense and to

24

present mitigation evidence, by means of appointment of an [investigative employee], was ignored

25

depriving him of due process of law.” Docket # 1, p. 10. In the discussion of that claim in the

26

petition, Gonzalez cited Wolff v. McDonnell. Docket # 1, p. 10. The procedural protections listed in

27

Wolff v. McDonnell, 418 U.S. 539 (1974), include allowance of witnesses and documentary

28

evidence when not unduly hazardous, and aid to the accused where the inmate is illiterate or the

1

issues are complex. Id. at 566, 570. With regard to Gonzalez’s biased decisionmaker claim, the

2

petition alleged that the “right to Impartial Decision Maker is well established by the Federal and

3

State Courts in the case Wolf v. McDonnell, supra,” and alleged that “the I.S.P. Officers has

4

maliciously disregarded the safe guard protection of the due process.” Docket # 1, pp. 12-13 (errors

5

in source). The citation to Wolff was incorrect because the procedural protections identified in Wolff

6

do not include an unbiased decisionmaker, but the allegations that the right to an unbiased

7

decisionmaker was established by federal courts and that prison officials violated Gonzalez’s right to

8

due process were sufficient to allege a federal due process claim for a biased decisionmaker. Not

9

only did Gonzalez allege two federal due process claims, the Court specifically so stated in the
Order To Show Cause. This Court has federal question jurisdiction to decide whether Gonzalez’s

11
For the Northern District of California

United States District Court

10

Fourteenth Amendment due process rights were violated in the disciplinary proceedings. See 28

12

U.S.C. §§ 1331, 2254.

13

Respondent also urges that, because there are state regulations pertaining to investigative

14

employees and appropriate decision-makers, resolution of the claims is governed by state law. See,

15

e.g., Motion To Dismiss, p. 2 (“Because the resolution of Gonzalez’s claim that he was entitled to an

16

investigative employee depends on state law, Gonzalez has not stated a cognizable federal claim.”)

17

That is legally incorrect. State laws and state regulations simply do not displace or preempt federal

18

constitutional rights; if there is any preemption, the Supremacy Clause would require the converse.

19

See U.S. Const. art. VI (“[t]his Constitution, and the Laws of the United States which shall be made

20

in Pursuance thereof . . . shall be the supreme Law of the Land.”) Arguments about compliance

21

with, or violation of, state laws are largely beside the point in a federal habeas action because a

22

federal court does not have authority to grant habeas relief for state law errors. See generally Estelle

23

v. McGuire, 502 U.S. 62, 67 (1991) (fact that evidence was incorrectly admitted under state law “is

24

no part of a federal court’s habeas review of a state conviction”); Gilreath v. Hanks, 95 F.3d 1154

25

(7th Cir. 1996) (table case) (“In determining whether to grant a petition for habeas corpus, we do not

26

review whether the trial judge acted in compliance with state law”); Walker v. Sumner, 14 F.3d

27

1415, 1419-20 (9th Cir. 1994), overruled on other grounds in Sandin v. Conner, 515 U.S. 472, 484

28

2

1

(1995) (§ 1983 action - whether a due process violation occurred in prison disciplinary proceedings

2

is determined with reference to Wolff and its progeny, rather than the state law rules).

3

Finally, using a motion to dismiss to present evidence and argue the merits of the case – as

exhaust, improper venue, lack of custody, mootness, and untimeliness) may be raised by motion

6

rather than in the answer. See Lonchar v. Thomas, 517 U.S. 314, 325 (1996) (quoting Advisory

7

Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases In The United States District

8

Courts); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989). However, these authorities do not

9

support the view that the merits should be addressed in a motion to dismiss. Using a motion to

10

dismiss to address the merits of a claim potentially gives the respondent two bites at the apple

11
For the Northern District of California

respondent has done – is improper. Threshold problems (such as lack of jurisdiction, failure to

5

United States District Court

4

because he can renew and improve his argument in his answer to the petition if he loses at the

12

motion to dismiss stage. Such a procedure also leads to the unnecessary consumption of judicial

13

resources because it requires the Court to address the same issues twice in the same case.

14

For the foregoing reasons, the motion to dismiss is DENIED. (Docket # 10.) In light of the

15

denial of the motion, the Court now sets the following briefing schedule for the answer and traverse

16

called for in the Order To Show Cause: Respondent must file and serve his answer no later than

17

August 3, 2012. Petitioner must file and serve his traverse no later than September 7, 2012.

18
19

IT IS SO ORDERED.

20
21

Dated: July 17, 2012

22
_________________________
EDWARD M. CHEN
United States District Judge

23
24
25
26
27
28

3