Johns v. Small et al

Filing 18

ORDER: Adopting 16 Report and Recommendation of the US Magistrate Judge; Granting 13 Motion to Dismiss; Dismissing 1 Petition for Writ of Habeas Corpus with prejudice; and Denying Certificate of Appealability. The Clerk of Court shall enter judgment accordingly and terminate this action. Signed by Judge Michael M. Anello on 5/27/2011. (All non-registered users served via U.S. Mail Service)(leh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GERRY JOHNS,

CASE NO. 10cv749-MMA (BLM)

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Petitioner,

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ORDER ADOPTING REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE;

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[Doc. No. 16]

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GRANTING RESPONDENT’S
MOTION TO DISMISS;

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vs.

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[Doc. No. 13]
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LARRY SMALL, Warden, et al.,

DISMISSING PETITION FOR WRIT
OF HABEAS CORPUS WITH
PREJUDICE

Respondent.

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[Doc. No. 1]
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DENYING CERTIFICATE OF
APPEALABILITY

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Petitioner Gerry Johns, proceeding pro se and in forma pauperis, filed a petition for writ of

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habeas corpus [Doc. No. 1] pursuant to 28 U.S.C. § 2254, challenging the constitutionality of a

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prison disciplinary proceeding which resulted in the forfeiture by Petitioner of ninety days of good

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time credit. Respondent filed a motion to dismiss the petition [Doc. No. 13], which Petitioner

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opposes [Doc. No. 15]. The matter is currently before the Court for review of the Report and
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10cv749

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Recommendation issued by United States Magistrate Judge Barbara Lynn Major recommending that

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the motion be granted and the petition be dismissed with prejudice [Doc. No. 16].

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DISCUSSION
Under 28 U.S.C. § 636(b)(1), in reviewing a magistrate judge’s report and recommendation,

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the district court “shall make a de novo determination of those portions of the report . . . to which

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objection is made,” and “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” Petitioner has filed objections to the Report and

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Recommendation [Doc. No. 17].

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Having read and considered the underlying petition, the Report, and Petitioner’s objections

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thereto, the Court OVERRULES Petitioner’s objections and concludes that the Report presents a

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well-reasoned analysis of the issues and properly recommends that the petition be dismissed with

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prejudice. As explained in the Report and Recommendation, Petitioner cannot state a claim for a

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violation of his Due Process rights because the challenged prison disciplinary proceedings did not

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implicate a federally protected liberty interest. The decision led to the forfeiture of time credits, but

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that forfeiture will not inevitably affect Petitioner’s duration of confinement because he is serving an

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indeterminate sentence of 16 years to life, of which he has served almost 30 years. He is long past

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his minimum parole date and his parole suitability will depend on a myriad of circumstances. The

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Report also correctly notes that in this case the question is not whether the claim ought to be pursued

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in civil rights rather than in habeas, but rather whether there is a due process claim at all. The

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undersigned agrees with the magistrate judge and concludes there is not.

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CERTIFICATE OF APPEALABILITY
Should petitioner wish to appeal this decision, he must receive a certificate of appealability.

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28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946,

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950-951 (9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001).

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Generally, a petitioner must make “a substantial showing of the denial of a constitutional righ” to

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warrant a certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,

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483-84 (2000). “The petitioner must demonstrate that reasonable jurists would find the district

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court’s assessment of the constitutional claims debatable or wrong.” Id. (quoting Slack, 529 U.S. at
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10cv749

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484). In order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the

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issues are debatable among jurists of reason; that a court could resolve the issues differently; or that

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the questions are adequate to deserve encouragement to proceed further. Id.

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Pursuant to the December 1, 2009 amendment to Rule 11 of the Rules Governing Section

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2254 and 2255 Cases, district courts are required to rule on the certificate of appealability in the

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order disposing of a proceeding adversely to the petitioner rather than waiting for a notice of appeal

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and request for certificate of appealability to be filed. Rule 11(a). For the reasons set forth in the

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Report and Recommendation, Petitioner has not made a substantial showing of the denial of a

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constitutional right. Accordingly, a certificate of appealability should not issue in this action.

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CONCLUSION

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Based on the foregoing, the Court ADOPTS the Report and Recommendation in its entirety.

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The Court GRANTS Respondent’s motion to dismiss and DISMISSES the petition with prejudice.

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No certificate of appealability shall issue. The Clerk of Court shall enter judgment accordingly and

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terminate this action.

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IT IS SO ORDERED.
DATED: May 27, 2011

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Hon. Michael M. Anello
United States District Judge

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10cv749