Aguilar v. Lewis

Filing 5

ORDER DISMISSING PETITION, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 4/8/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 4/8/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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ALEXIS AGUILAR,
Petitioner,

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vs.

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ORDER DISMISSING PETITION

G.D. LEWIS, Warden,
Respondent.

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For the Northern District of California

United States District Court

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No. C 12-5936 PJH (PR)

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Petitioner, a California prisoner currently incarcerated at Pelican Bay State Prison,

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has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The

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petition is directed to a disciplinary proceeding that resulted in a loss of good time credits,

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so is a challenge to the execution of his sentence. Because he is housed at a prison in this

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district, venue is proper here. See 28 U.S.C. § 2241(d). The original petition was

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dismissed with leave to amend and petitioner has filed an amended petition.

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BACKGROUND

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This petition is directed to a disciplinary hearing in which petitioner was found guilty
of possession of a deadly weapon and assessed a loss of 181 days of good time credits.
DISCUSSION

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A.

Standard of Review
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

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in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §

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2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet

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heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An

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application for a federal writ of habeas corpus filed by a prisoner who is in state custody

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pursuant to a judgment of a state court must “specify all the grounds for relief available to

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the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules

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Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’ pleading is not sufficient, for the

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petition is expected to state facts that point to a ‘real possibility of constitutional error.’”

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Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir.

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1970)). “Habeas petitions which appear on their face to be legally insufficient are subject to

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summary dismissal.” Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102, 1108

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(9th Cir. 1996) (Schroeder, J., concurring).
B.

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For the Northern District of California

United States District Court

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Legal Claims
Petitioner contends that his Rules Violation Report (RVR) hearing where he lost time

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credits violated due process as it was overseen by a biased hearing officer. The senior

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hearing officer, was Lt. Coulter, but petitioner alleges that correctional officer Askew, who

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served the RVR and assisted petitioner in preparation for the hearing, was biased and

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gestured and gesticulated during the hearing. Petitioner concludes these gestures

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impeded a fair hearing causing him to be found guilty as the senior hearing officer was not

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impartial. It is not clear exactly what Askew did with the gestures that denied petitioner a

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fair hearing, especially as Askew was not presiding over the hearing. The only allegations

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against the senior hearing officer is that he observed Askew gesticulating, nodded and then

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later found petitioner guilty. The original petition was dismissed with leave to amend to

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address these deficiencies, but the amended petition provides less information

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A fair trial in a fair tribunal is a basic requirement of due process. In re Murchison,

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349 U.S. 133, 136 (1955). The Supreme Court has ruled that a committee of correctional

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officers and staff, acting with the purpose of taking necessary disciplinary measures to

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control inmate behavior within acceptable limits, was sufficiently impartial to conduct

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disciplinary hearings and impose penalties including revocation of good time credits. Wolff

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v. McDonnell, 418 U.S. 539, 570–71 (1974).

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Fairness requires an absence of actual bias and of the probability of unfairness. In

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re Murchison, 349 U.S. at 136. Bias may be actual, or it may consist of the appearance of

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partiality in the absence of actual bias. Stivers v. Pierce, 71 F.3d 732, 741 (9th Cir.1995).

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A showing that the adjudicator has prejudged, or reasonably appears to have prejudged, an

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issue is sufficient. Kenneally v. Lungren, 967 F.2d 329, 333 (9th Cir.1992). There is,

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however, a presumption of honesty and integrity on the part of decision makers which may

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be overcome by evidence of a risk of actual bias or prejudgment based on special facts and

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circumstances. Withrow v. Larkin, 421 U.S. 35, 46–47 (1975).
The mere fact that a decision maker denies relief in a given case or has denied relief

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in the vast majority of cases does not demonstrate bias. Stivers v. Pierce, 71 F.3d at 741-

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For the Northern District of California

United States District Court

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42. Unfavorable judicial rulings alone are generally insufficient to demonstrate bias unless

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they reflect such extreme favoritism or antagonism that the exercise of fair judgment is

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precluded. Liteky v. United States, 510 U.S. 540, 555 (1994).
Here, the allegations in the petition are rather bare and only allege that another party

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gesticulated and the hearing officer nodded. This is insufficient to demonstrate bias.1

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Therefore, petitioner has failed to state facts that point to a real possibility of a constitutional

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error based on the impartiality of the hearing officer. As petitioner has failed to present

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sufficient allegations of bias, despite being provided leave to amend to present more

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information, this action must be dismissed.

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CONCLUSION

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The petition is DISMISSED for the reasons set out above. Because reasonable

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jurists would not find the result here debatable, a certificate of appealability (“COA”) is

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DENIED. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000) (standard for COA). The

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clerk shall close the file.

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There also appeared to have been sufficient evidence for the senior hearing officer to
find petitioner guilty of possession of a weapon. Petitioner was on contraband watch and
defecated into a bag and a correctional officer discovered a hard melted plastic object that was
sharpened to a point with what appeared to be a metal tip, that was all wrapped in plastic.
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IT IS SO ORDERED.
Dated: April 8, 2013.
PHYLLIS J. HAMILTON
United States District Judge

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G:\PRO-SE\PJH\HC.12\Aguilar5936.dis.wpd

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For the Northern District of California

United States District Court

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