Nguyen v. Lewis

Filing 12

ORDER TO SHOW CAUSE (Illston, Susan) (Filed on 2/3/2014)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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ORDER TO SHOW CAUSE

Petitioner,

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No. C 13-4796 SI (pr)

HUAN NGUYEN,

v.
G. D. LEWIS, warden,
Respondent.
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INTRODUCTION

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Huan Nguyen, a prisoner incarcerated at Pelican Bay State Prison, has filed a pro se
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge a disciplinary
decision. His petition is now before the court for review pursuant to 28 U.S.C. § 2243 and Rule
4 of the Rules Governing Section 2254 Cases in the United States District Courts.

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BACKGROUND

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Following an incident at Kern Valley State Prison on July 7, 2009, a CDC-115 rule
violation report was issued charging Nguyen with attempted murder. A disciplinary hearing
was held on August 16, 2009; Nguyen was found guilty of the offense and was disciplined. The
discipline imposed included a loss of 360 days of time credits and a 25-month term in the
security housing unit. Nguyen filed unsuccessful state court habeas petitions to challenge the
decision. He then filed this action.

DISCUSSION

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This court may entertain a petition for writ of habeas corpus "in behalf of a person in

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

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

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district court considering an application for a writ of habeas corpus shall "award the writ or issue

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an order directing the respondent to show cause why the writ should not be granted, unless it

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appears from the application that the applicant or person detained is not entitled thereto." 28

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U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are

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vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v.

United States District Court
For the Northern District of California

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Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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An inmate in California is entitled to due process before being disciplined when the

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discipline imposed will inevitably affect the duration of his sentence. See Sandin v. Conner, 515

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U.S. 472, 484, 487 (1995). The process due in such a prison disciplinary proceeding includes

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written notice, time to prepare for the hearing, a written statement of decision, allowance of

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witnesses and documentary evidence when not unduly hazardous, and aid to the accused where

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the inmate is illiterate or the issues are complex. Wolff v. McDonnell, 418 U.S. 539, 564-67

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(1974). The decision also must be supported by some evidence. See Superintendent v. Hill, 472

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U.S. 445, 454 (1985).

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Nguyen asserts two claims in his petition. First, he claims that the "investigative

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employee . . . neglected to give defendant all required copies of documents within specified time

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limits, before or after 115 disciplinary hearing, and deprived petitioners (sic) right to challenge

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the findings." Docket # 1 at 10. The Due Process Clause only requires that prisoners be

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afforded those procedures mandated by Wolff and its progeny; it does not require that a prison

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comply with its own, more generous procedures. See Walker v. Sumner, 14 F.3d 1415, 1419-20

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(9th Cir. 1994), overruled on other grounds by Sandin v. Conner, 515 U.S. 472 (1995). Wolff

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does not require that an inmate receive all of the documentation regarding the disciplinary

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charge. Wolff only requires that he receive "written notice of the charges." Wolff, 418 U.S. at

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564. Nguyen does not dispute that he received a notice of the charges against him, and the
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documents he submitted indicate that he did receive that notice. See Docket # 1 at 129 (CDC-

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115 provided to inmate on July 20, 2009). In short, Nguyen had no federally-protected right to

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receive all the documentation, and he did receive the written notice of the charges to which he

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was entitled. The first claim is dismissed without leave to amend because it does not state a

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claim upon which federal habeas relief may be granted.

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Second, Nguyen claims that the evidence was insufficient to support the disciplinary

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decision. Liberally construed, the challenge to the sufficiency of the evidence is cognizable as

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a claim for a violation of his rights under the Due Process Clause of the U.S. Constitution. See

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Superintendent v. Hill, 472 U.S. at 454.

United States District Court
For the Northern District of California

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CONCLUSION

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For the foregoing reasons,

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1.

The petition's federal due process claim that there was not sufficient evidence to

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support the decision warrants a response. The claim that he did not receive all documentation

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is dismissed.

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2.

The clerk shall serve by certified mail a copy of this order, the petition and all

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attachments thereto upon respondent and respondent's attorney, the Attorney General of the State

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of California. The clerk also shall serve a copy of this order on petitioner.

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3.

Respondent must file and serve upon petitioner, on or before April 4, 2014, an

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answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases,

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showing cause why a writ of habeas corpus should not be issued. Respondent must file with the

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answer a copy of all portions of the disciplinary hearing record that are relevant to a

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determination of the issues presented by the petition. If respondent wants to argue that the

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claim is not exhausted or is procedurally barred, he must in the same filing address the

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merits of the insufficient evidence claim.

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4.

If petitioner wishes to respond to the answer, he must do so by filing a traverse

with the court and serving it on respondent on or before May 2, 2014.
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Petitioner is responsible for prosecuting this case. He must keep the court
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informed of any change of address and must comply with the court's orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to

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Federal Rule of Civil Procedure 41(b).

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Petitioner's in forma pauperis application is DISMISSED as unnecessary because

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he paid the filing fee. (Docket # 8.)

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IT IS SO ORDERED.

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DATED: January 31, 2014
SUSAN ILLSTON
United States District Judge

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United States District Court
For the Northern District of California

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