Dunn v. Swarthout

Filing 12

ORDER TO SHOW CAUSE; DENYING MOTION FOR RECONSIDERATION; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Magistrate Judge Jacqueline Scott Corley on 3/25/2014 (Attachments: # 1 Certificate of Service) (ahm, COURT STAFF) (Filed on 3/25/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Northern District of California

United States District Court

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JOHN DUNN,
Petitioner,

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v.

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Case No.: C 14-0934 JSC (PR)
ORDER TO SHOW CAUSE;
DENYING MOTION FOR
RECONSIDERATION; GRANTING
LEAVE TO PROCEED IN FORMA
PAUPERIS

GARY SWARTHOUT,
Respondent.

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(Dkt. 2, 9)

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Petitioner, a prisoner of the State of California currently incarcerated at San Quentin
State Prison and proceeding pro se, filed a petition for a writ of habeas corpus challenging a
disciplinary report issued by officials at his prior prison, California State Prison -- Solano. 1

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He originally filed this case in the Eastern District of California, but it was transferred to this
Court. He has applied for leave to proceed in forma pauperis.
BACKGROUND

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In 2012, Petitioner was incarcerated at California State Prison -- Solano, where,

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following a disciplinary hearing, prison officials issued a “Rules Violation Report” (“RVR”)
finding Petitioner guilty of instigating a riot. He was assessed a loss of 90 days of time
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Petitioner has consented to the jurisdiction of a United States Magistrate Judge pursuant to
28 U.S.C. § 636(c). (Dkt. No. 11.)

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credits. Petitioner also alleges that this disciplinary finding led to his being denied parole. He

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challenged the discipline in habeas petitions to the Solano County Superior Court, the

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California Court of Appeal, and the California Supreme Court. All three petitions were

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denied.

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DISCUSSION
I.

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Standard of Review
This Court may entertain a petition for a 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). It

Northern District of California

shall “award the writ or issue an order directing the respondent to show cause why the writ

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United States District Court

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should not be granted, unless it appears from the application that the applicant or person

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detained is not entitled thereto.” Id. § 2243.

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II.

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Legal Claims
As grounds for federal habeas relief, Petitioner claims that his right to due process was

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violated because: (1) he was not allowed to call witnesses at the disciplinary hearing; (2) an

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investigating prison official failed to assist him in calling witnesses; (3) there was no evidence

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of his guilt and the hearing officer was biased against him; and (4) he was denied a staff

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member to assist him. When liberally construed, these claims are sufficient to warrant a

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response from Respondent. See Superintendent v. Hill, 472 U.S. 445, 454 (1985); Wolff v.

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McDonnell, 418 U.S. 539, 556-70 (1974).

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III.

Motion for Reconsideration

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Petitioner has filed a motion to reconsider the transfer of this case from the Eastern

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District of California to this Court. He argues it should be transferred back to the Eastern

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District because the disciplinary proceedings took place at CSP Solano, which lies within the

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venue of the Eastern District. When, as here, a federal habeas petition is directed to the

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manner in which a sentence is being executed, e.g., if it involves parole or time credits claims,

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the district of confinement is the preferable forum. See Habeas L.R. 2254-3(b)(2); Dunne v.
Henman, 875 F.2d 244, 249 (9th Cir. 1989). Here, the petition challenges disciplinary
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findings that resulted in Petitioner's loss of time credits and were allegedly used to deny him

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parole. As such, the petition challenges the execution of his sentence. As Petitioner is

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confined at San Quentin State Prison, which lies within the venue of the Northern District of

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California, this Court is the preferable forum. Accordingly, his motion for reconsideration is

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DENIED.

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CONCLUSION

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For the foregoing reasons and for good cause shown,

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1. The Clerk shall serve a Magistrate Judge jurisdiction consent form, a copy of this

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Order, and the petition, and all attachments thereto, on Respondent and Respondent’s

Northern District of California

attorney, the Attorney General of the State of California. The Clerk also shall serve a copy of

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United States District Court

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this Order on Petitioner.

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2. Respondent shall complete and file the Magistrate Judge jurisdiction consent form

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within ninety-one (91) days of the date this Order is issued. If Respondent consents to a

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Magistrate Judge’s jurisdiction, then Respondent shall file with the Court and serve on

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Petitioner, within ninety-one(91) days of the date this Order is issued, an answer conforming

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in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a

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writ of habeas corpus should not be granted. Respondent shall file with the answer and serve

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on Petitioner a copy of all portions of the prison disciplinary proceedings that are relevant to a

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determination of the issues presented by the petition. If Petitioner wishes to respond to the

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answer, he shall do so by filing a traverse (a reply) with the Court and serving it on

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Respondent within twenty-eight (28) days of the date the answer is filed.

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3. Respondent may, within ninety-one (91) days of the date this Order is issued, file a

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motion to dismiss on procedural grounds in lieu of an answer, as set forth in the Advisory

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Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If Respondent files

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such a motion, Petitioner shall file with the Court and serve on Respondent an opposition or

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statement of non-opposition within twenty-eight (28) days of the date the motion is filed, and

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Respondent shall file with the Court and serve on Petitioner a reply within fourteen (14) days
of the date any opposition is filed.
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4. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep

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the Court informed of any change of address by filing a separate paper captioned “Notice of

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Change of Address.” He must comply with the Court’s orders in a timely fashion. Failure to

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

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Rule of Civil Procedure 41(b).

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5. The motion for leave to proceed in forma pauperis (dkt. 2) is GRANTED. The
motion for reconsideration (dkt. 9) is DENIED.
IT IS SO ORDERED.

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Dated: March 25, 2014
_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

Northern District of California

United States District Court

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