Cross v. Baker et al

Filing 36

ORDER granting 13 motion to voluntarily dismiss ground six; granting in part 18 motion to dismiss (due-process claim in ground 2 is dismissed; equal-protection claim in ground 2 is unexhausted); denying 14 motion for order directing respondents to produce recording of disciplinary hearing; and denying 31 motion requesting leave of the court to conduct discovery and an evidentiary hearing. Petitioner shall have 30 days to inform the court of his decision re equal-protection claim in ground 2. Please see attached for additional details and deadlines. Signed by Judge Robert C. Jones on 9/24/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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ANTHONY CROSS,

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Petitioner,

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vs.

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Case No. 3:14-cv-00434-RCJ-VPC

RENEE BAKER, et al.,

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ORDER

Respondents.

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Before the court is petitioner’s motion to voluntarily dismiss ground six (#13). Respondents
do not oppose the motion, and the court grants petitioner’s motion.
Also before the court are respondents’ motion to partially dismiss (#18), petitioner’s

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opposition (#25), and respondents’ reply (#28). For the reasons stated below, the court grants the

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motion in part.

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This action arises out of prison disciplinary proceedings. The petition for a writ of habeas

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corpus (#4) originally contained seven grounds for relief. The court dismissed grounds 4, 5, and 7

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on screening the petition. Order (#3). Petitioner has dismissed ground 6 voluntarily. Grounds 1, 2,

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and 3, remain.

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Respondents originally argued that ground 1 was unexhausted, but they have withdrawn that
argument in their reply.
The text of ground 2 contains two claims. First, petitioner claims that the disciplinary

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hearing officer did not determine the reliability, trustworthiness, and integrity of the person who

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offered evidence against petitioner. Respondents argue correctly that the Due Process Clause of the

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Fourteenth Amendment does not require such findings in a prison disciplinary proceeding.

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Superintendent v. Hill, 472 U.S. 445, 455-56. Petitioner argues that he also is claiming in ground 2

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that the hearing officer did not meet the state evidentiary standards of Administrative Regulation

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707, which in turn would be a violation of due process. There are no such allegations in ground 2,

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and so the court will not address this argument.

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Second in ground 2, petitioner alleges that he and another inmate were charged and found

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guilty of the same disciplinary violations based upon the same facts. The other inmate’s

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administrative appeal was upheld, and his disciplinary sanctions were reversed. Petitioner was

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unable to file an appeal. Respondents construe this as a claim that the Equal Protection Clause of

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the Fourteenth Amendment was violated, and the court agrees. Petitioner did not present either

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these facts or the legal theory to the state courts in his state habeas corpus petition. See Ex. 4 (#20).

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This part of ground 2 is not exhausted, and the court may not consider it now. 28 U.S.C. § 2254(b).

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The petition (#4) is mixed, containing both claims exhausted in state court and claims not

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exhausted in state court, and it is subject to dismissal. See Rose v. Lundy, 455 U.S. 509, 521-22

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(1982); Szeto v. Rushen, 709 F.2d 1340, 1341 (9th Cir. 1983). Petitioner may voluntarily dismiss

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the unexhausted equal-protection claim in ground 2 and proceed with the remaining grounds, he

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may voluntarily dismiss this action without prejudice while he returns to state court to exhaust the

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equal-protection claim in ground 2, or he may move to stay this action while he returns to state court

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to exhaust the equal-protection claim in ground 2. If petitioner chooses the second option, the court

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makes no assurances about any possible state-law procedural bars or the timeliness of a

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subsequently filed federal habeas corpus petition. If petitioner chooses the last option, he must

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show that he has “good cause for his failure to exhaust, his unexhausted claims are potentially

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meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation

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tactics.” Rhines v. Weber, 544 U.S. 269, 278 (2005). If petitioner chooses the last option, he also

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will need to designate an alternative choice in case the court declines to stay the action. Otherwise,

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the court will dismiss the action.

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Petitioner has filed a motion for order directing respondents to produce recording of

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disciplinary hearing (#14), and respondents have submitted a response (#15). The motion is moot
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because petitioner first needs to determine what to do with the unexhausted part of ground 2.

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Additionally, respondents indicate that they will provide the court with a copy of the recording, and

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the court accepts respondents’ representation.

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Petitioner has filed a motion requesting leave of the court to conduct discovery and an

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evidentiary hearing (#31), respondents have filed an opposition (#32), and petitioner has filed a

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reply (#33). The court denies this motion. First, petitioner must decide what to do with the

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unexhausted part of ground 2. Second, at this stage of the proceedings the court does not have

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enough information to determine whether an evidentiary hearing is necessary or permitted. Third, in

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the reply petitioner argues that this discovery is necessary to prove that the hearing officer did not

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comply with Administrative Regulation 707. As the court has noted above, there is no such claim in

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the petition (#4).

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IT IS THEREFORE ORDERED that petitioner’s petitioner’s motion to voluntarily dismiss
ground six (#13) is GRANTED. Ground 6 is DISMISSED from this action.
IT IS FURTHER ORDERED that respondents’ motion to dismiss (#18) is GRANTED in

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part with respect to ground 2. The due-process claim in ground 2 is DISMISSED. The equal-

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protection claim in ground 2 is unexhausted.

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IT IS FURTHER ORDERED that petitioner shall have thirty (30) days from the date of entry

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of this order to do one of the following: (1) inform this court in a sworn declaration that he wishes

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to dismiss the equal-protection claim in ground 2 of his petition (#4), and proceed only on the

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remaining grounds for relief, (2) inform this court in a sworn declaration that he wishes to dismiss

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this action to return to state court to exhaust his state remedies with respect to the equal-protection

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claim in ground 2 of his petition (#4), or (3) move to stay this action while he returns to state court

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to exhaust his state remedies with respect to the equal-protection claim in ground 2 of his petition

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(#4). Failure to comply will result in the dismissal of this action.

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IT IS FURTHER ORDERED that if petitioner elects to dismiss the aforementioned part of

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ground 2 of his petition (#4) and proceed on the remaining grounds, respondents shall file and serve

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an answer or other response to the remaining grounds within forty-five (45) days after petitioner

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serves his declaration dismissing those grounds. If respondents file and serve an answer, it shall

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comply with Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts.

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IT IS FURTHER ORDERED that if respondents file and serve an answer, petitioner shall
have forty-five (45) days from the date on which the answer is served to file and serve a reply.
IT IS FURTHER ORDERED that petitioner’s motion for order directing respondents to
produce recording of disciplinary hearing (#14) is DENIED.
IT IS FURTHER ORDERED that petitioner’s motion requesting leave of the court to
conduct discovery and an evidentiary hearing (#31) is DENIED.
Dated: September 24, 2015.

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_________________________________
ROBERT C. JONES
United States District Judge

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