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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 ALEXIS AGUILAR, Petitioner, 8 vs. 9 ORDER DISMISSING PETITION G.D. LEWIS, Warden, Respondent. 11 For the Northern District of California United States District Court 10 No. C 12-5936 PJH (PR) / 12 13 Petitioner, a California prisoner currently incarcerated at Pelican Bay State Prison, 14 has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The 15 petition is directed to a disciplinary proceeding that resulted in a loss of good time credits, 16 so is a challenge to the execution of his sentence. Because he is housed at a prison in this 17 district, venue is proper here. See 28 U.S.C. § 2241(d). The original petition was 18 dismissed with leave to amend and petitioner has filed an amended petition. 19 BACKGROUND 20 21 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 22 23 24 A. Standard of Review This court may entertain a petition for writ of habeas corpus "in behalf of a person in 25 custody pursuant to the judgment of a State court only on the ground that he is in custody 26 in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 27 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet 28 heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An 1 application for a federal writ of habeas corpus filed by a prisoner who is in state custody 2 pursuant to a judgment of a state court must “specify all the grounds for relief available to 3 the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules 4 Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’ pleading is not sufficient, for the 5 petition is expected to state facts that point to a ‘real possibility of constitutional error.’” 6 Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 7 1970)). “Habeas petitions which appear on their face to be legally insufficient are subject to 8 summary dismissal.” Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102, 1108 9 (9th Cir. 1996) (Schroeder, J., concurring). B. 11 For the Northern District of California United States District Court 10 Legal Claims Petitioner contends that his Rules Violation Report (RVR) hearing where he lost time 12 credits violated due process as it was overseen by a biased hearing officer. The senior 13 hearing officer, was Lt. Coulter, but petitioner alleges that correctional officer Askew, who 14 served the RVR and assisted petitioner in preparation for the hearing, was biased and 15 gestured and gesticulated during the hearing. Petitioner concludes these gestures 16 impeded a fair hearing causing him to be found guilty as the senior hearing officer was not 17 impartial. It is not clear exactly what Askew did with the gestures that denied petitioner a 18 fair hearing, especially as Askew was not presiding over the hearing. The only allegations 19 against the senior hearing officer is that he observed Askew gesticulating, nodded and then 20 later found petitioner guilty. The original petition was dismissed with leave to amend to 21 address these deficiencies, but the amended petition provides less information 22 A fair trial in a fair tribunal is a basic requirement of due process. In re Murchison, 23 349 U.S. 133, 136 (1955). The Supreme Court has ruled that a committee of correctional 24 officers and staff, acting with the purpose of taking necessary disciplinary measures to 25 control inmate behavior within acceptable limits, was sufficiently impartial to conduct 26 disciplinary hearings and impose penalties including revocation of good time credits. Wolff 27 v. McDonnell, 418 U.S. 539, 570–71 (1974). 28 /// 2 1 Fairness requires an absence of actual bias and of the probability of unfairness. In 2 re Murchison, 349 U.S. at 136. Bias may be actual, or it may consist of the appearance of 3 partiality in the absence of actual bias. Stivers v. Pierce, 71 F.3d 732, 741 (9th Cir.1995). 4 A showing that the adjudicator has prejudged, or reasonably appears to have prejudged, an 5 issue is sufficient. Kenneally v. Lungren, 967 F.2d 329, 333 (9th Cir.1992). There is, 6 however, a presumption of honesty and integrity on the part of decision makers which may 7 be overcome by evidence of a risk of actual bias or prejudgment based on special facts and 8 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 9 in the vast majority of cases does not demonstrate bias. Stivers v. Pierce, 71 F.3d at 741- 11 For the Northern District of California United States District Court 10 42. Unfavorable judicial rulings alone are generally insufficient to demonstrate bias unless 12 they reflect such extreme favoritism or antagonism that the exercise of fair judgment is 13 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 14 15 gesticulated and the hearing officer nodded. This is insufficient to demonstrate bias.1 16 Therefore, petitioner has failed to state facts that point to a real possibility of a constitutional 17 error based on the impartiality of the hearing officer. As petitioner has failed to present 18 sufficient allegations of bias, despite being provided leave to amend to present more 19 information, this action must be dismissed. 20 CONCLUSION 21 The petition is DISMISSED for the reasons set out above. Because reasonable 22 jurists would not find the result here debatable, a certificate of appealability (“COA”) is 23 DENIED. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000) (standard for COA). The 24 clerk shall close the file. 25 /// 26 1 27 28 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. 3 1 2 IT IS SO ORDERED. Dated: April 8, 2013. PHYLLIS J. HAMILTON United States District Judge 3 4 5 6 7 G:\PRO-SE\PJH\HC.12\Aguilar5936.dis.wpd 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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