HON. MICHAEL M. ANELLO United States District Judge

ORDER OVERRULING PETITIONER'S OBJECTIONS; ADOPTING REPORT AND RECOMMENDATION; GRANTING RESPONDENT'S MOTION TO DISMISS; AND DENYING PETITIONER'S REQUEST FOR CERTIFICATE OF APPEALABILITY

[Doc. Nos. 6, 10, 11]

Louis Lovell DeBose ("Petitioner"), a state prisoner proceeding pro se, filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 to challenge a prison administrative rules violation hearing, which resulted in the loss of a 90-day time credit. See Doc. No. 1 at 1, 13. Respondent filed a motion to dismiss the Petition. See Doc. No. 6. The Magistrate Judge has issued a detailed and well-reasoned Report and Recommendation ("R&R"), recommending that the Court grant Respondent's motion and dismiss the Petition without leave to amend. See Doc. No. 10 at 11. Petitioner filed a timely objection to the R&R. See Doc. No. 11. Respondent has not filed a reply. Upon due consideration and for the reasons set forth below, the Court OVERRULES Petitioner's objections, ADOPTS the Magistrate Judge's R&R, GRANTS Respondent's motion to dismiss and DISMISSES the Petition without leave to amend, and DENIES Petitioner's request for a certificate of appealability.

I. BACKGROUND

In August 2017, Petitioner was issued a rules violation report ("RVR") for using cardboard to obstruct the view into his cell, thus delaying prison staff's ability to conduct the inmate count. See Doc. No. 1 at 1; Doc. No. 6-5 at 36 45, 53, 55. As a result, Petitioner was found guilty of "Delaying a Peace Officer in the performance of Duties" and sanctioned a good-time credit loss of ninety days. See Doc. No. 1 at 13; Doc. No. 6-5 at 36. Petitioner asserts that the RVR hearing violated his constitutional rights because he was denied a requested witness, the ability to present documentary evidence, and an impartial decisionmaker. See Doc. No. 1 at 3, 13.

The Magistrate Judge issued an R&R on Respondent's motion to dismiss, in which he recommends the Court grant Respondent's motion and dismiss the Petition without leave to amend. See Doc. No. 10 at 11. The Magistrate Judge found that the Court lacks federal habeas corpus jurisdiction because Petitioner's success "would not necessarily lead to Petitioner's immediate or speedier release," which renders his claim outside the core of habeas corpus. See id. at 3, 6. Although his Petition could be construed as a § 1983 action, the Magistrate Judge found that the Court should not construe the action because there are no allegations against the named Respondent, and it is unclear who Petitioner seeks to hold responsible for the denial of his rights. See id. at 6. Additionally, the Magistrate Judge found that such a § 1983 action should be filed in the Central District of California because the state actors mentioned in the Petition do not appear to reside in this district and the events of the underlying disciplinary action occurred in the Central District. See id. at 7. Regardless of these issues, the Magistrate Judge further found that the Petition is facially untimely, cannot be saved by statutory tolling, is not entitled to equitable tolling, and does not demonstrate a miscarriage of justice. See id. at 8-11.

Petitioner now objects to the Magistrate Judge's R&R. See Doc. No. 11.

II. LEGAL STANDARD

The duties of the district court in connection with a magistrate judge's report and recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). Where the parties object to a R&R, "[a] judge of the [district] court shall make a de novo determination of those portions of the [R&R] to which objection is made." 28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). A district judge may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989) (quoting 28 U.S.C. § 636(b)); Wilkins v. Ramirez, 455 F. Supp. 2d 1080, 1088 (S.D. Cal. 2006).

III. DISCUSSION

Petitioner objects to five components of the Magistrate Judge's R&R. See Doc. No. 11. The Court addresses each objection in turn.

First, Petitioner takes issue with the background section of the R&R because it "renders an erred and abridged version" and makes "a fair judgment impossible." See id. at 2. The Court finds that Petitioner's various objections to the background section are insufficient to show that the Magistrate Judge came to an incorrect conclusion regarding the substance of Respondent's motion to dismiss. Indeed, the objection does not show how the Magistrate Judge was incorrect in finding that the Court lacks federal habeas corpus jurisdiction over this action or that the Petition is untimely. Thus, the Court OVERRULES Petitioner's first objection.

Second, Petitioner argues that the legal standard used in the R&R is "misguided and erroneous." Doc. No. 11 at 4. Similar to the background section objection, Petitioner fails to demonstrate how the legal standard section rendered an erroneous recommendation regarding the Court's lack of jurisdiction over this action or the untimeliness of the Petition. Thus, the Court OVERRULES Petitioner's second objection.

Third, Petitioner asserts that the Magistrate Judge was incorrect in finding "federal habeas jurisdiction does not attack the legality of the duration of Petitioner's confinement and must be brought in a separate civil rights action." Doc. No. 11 at 7. Similar to the rationale in Nettles v. Grounds, success on the merits of Petitioner's claims "would not necessarily lead to immediate or speedier release because the expungement of the challenged disciplinary violation would not necessarily lead to a grant of parole." 830 F.3d 922, 934-35 (9th Cir. 2016) (en banc) (finding that the petition did not fall within the "core of habeas corpus" where it sought to expunge a RVR and the loss of "thirty days of postconviction credits" that resulted from the disciplinary hearing). The Magistrate Judge was correct. The disciplinary hearing could affect the Parole Board's future assessment on whether to grant parole, where the lost credits could affect the calculation of Petitioner's ultimate release date. However, the expungement of the disciplinary findings would not necessarily lead to an immediate or speedier release. As the Ninth Circuit in Nettles noted, "the presence of a disciplinary infraction does not compel the denial of parole, nor does an absence of an infraction compel the grant of parole." Id. at 935. The Parole Board may deny parole "on the basis of any of the grounds presently available to it." Id. (quoting Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003)). As the Magistrate Judge noted, Petitioner may never be found eligible for parole based on other grounds. Petitioner's claims remain speculative and too attenuated and, thus, fall outside of "the core of habeas corpus" because they would "would not necessarily lead to his immediate or earlier release from confinement and he must instead bring his claim under § 1983." Id. (quoting Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011)). Thus, the Court OVERRULES Petitioner's third objection. Because Petitioner's claim falls outside "the core of habeas corpus," this alone is sufficient to dismiss his claim. However, the Court proceeds to discuss Petitioner's objections to the Magistrate Judge's timeliness findings.

Fourth, Petitioner contends that the Magistrate Judge erred in finding statutory tolling principles would make the Petition untimely. See Doc. No. 11 at 11. In particular, Petitioner argues "interval tolling" makes his Petition timely. See id. (citing Evans v. Chavis, 546 U.S. 189, 193-94 (2006)).

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") established a one-year statute of limitations period for a petition for a writ of habeas corpus. See 28 U.S.C. § 2244(d)(1). This limitations period applies to § 2254 habeas petitions that challenge prison disciplinary decisions. See Shelby v. Bartlett, 391 F.3d 1061, 1063 (9th Cir. 2004). Under such challenges, the limitations period runs pursuant to § 2244(d)(1)(D). See Mardesich v. Cate, 668 F.3d 1164, 1172 (9th Cir. 2012); Shelby, 391 F.3d at 1066. Under § 2244(d)(1)(D), "[t]he limitation period shall run from the latest of . . . (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D). "As a general rule, the state agency's denial of an administrative appeal is the 'factual predicate' for such habeas claims." Mardesich, 668 F.3d at 1172. The limitations period is tolled when "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2).

Here, the California Department of Corrections and Rehabilitation ("CDCR") issued its third level appeal decision regarding the RVR on February 15, 2018. See Doc. No. 6-5 at 57. Petitioner filed the initial state court petition in Riverside County Superior Court on January 23, 2019. See Doc. No. 6-5 at 70. Between the final CDCR appeal and the filing of the petition in Riverside County Superior Court, 342 days passed and left 23 days remining in the limitations period. The limitations period was subject to statutory tolling until the California Supreme Court denied his petition on March 11, 2020. See Doc. No. 6-11 at 2. Petitioner constructively filed the instant Petition on June 10, 2020, which was 91 days after the California Supreme Court's denial. See Doc. No. 1 at 12. Taking the two time periods when the statute of limitations was running, 433 days passed. Therefore, after applying statutory tolling, the one-year statute of limitations period expired on or about April 3, 2020—68 days before Petitioner filed this action. Petitioner's objection is unavailing and misapplies tolling principles. The Magistrate Judge correctly tolled the time between the filing of his initial state court petition through the California Supreme Court's denial of the petition. Compare Doc. No. 10 at 8-9, with Evans, 546 U.S. at 193 (stating that the statute of limitations is tolled between the lower court reaching an adverse decision on a habeas petition and the petitioner timely filing a petition in the higher state court). Thus, the Court OVERRULES Petitioner's fourth objection.

Fifth, Petitioner argues that the Magistrate Judge erroneously found that there was no miscarriage of justice "that would bring the petition through the Schlup procedural gateway." Doc. No. 11 at 13. Petitioner argues that employee log entries "contradict[] any notion whatsoever that [the] view into the cell was completely obstructed by the cardboard" and do not show that there were repeated delays in the inmate counts. Doc. No. 11 at 14-15.

Despite being barred by the statute of limitations, a habeas petition can be heard on the merits if the petitioner demonstrates that a "a failure to entertain his claim would constitute a fundamental miscarriage of justice." Larsen v. Soto, 742 F.3d 1083, 1095 (9th Cir. 2013) (citing Lee v. Lampert, 653 F.3d 929, 937-38 (9th Cir. 2011)). The miscarriage of justice inquiry requires the petitioner to show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995) (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). "To pass through the Schlup gateway, a 'petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.'" Larsen, 742 F.3d at 1095 (citing Lee, 653 F.3d at 938). This standard is "demanding" and typically involves "dramatic new evidence of innocence." Id.

Here, Petitioner has not met this demanding standard and has not shown that it is more likely than not that no reasonable juror would have convicted Petitioner in light of new evidence. Petitioner has not shown that the RVR hearing official's guilty finding probably resulted in the conviction of an actually innocent person. During the RVR hearing, Petitioner provided a piece of paper with questions for Officer Castenada and Sargant Meadows and provided various documents to the hearing officer. See Doc. No. 6-5 at 32, 34, 35. During the hearing, Petitioner conceded that "I put the cardboard back in the window at the 0500 hours count to get [the officer's] attention because he kept bothering me and I wanted to talk to him." Doc. No. 6-5 at 33, 36. Petitioner argues his proffered new evidence will show that the view into his cell was not "completely obstructed by cardboard." Doc. No. 11 at 14 (emphasis added). Petitioner does not dispute at least a portion of his cell window was obstructed and loses sight of the core of the RVR: officers needed to address the obstruction, which delayed the inmate count. See Doc. No. 6-5 at 28. In sum, Petitioner has not met the demanding Schlup standard. Thus, the Court OVERRULES Petitioner's fifth objection.

IV. CERTIFICATE OF APPEALABILITY

In addition to his objections, Petitioner requests that the Court issue a certificate of appealability. See Doc. No. 11 at 17.

Under AEDPA, a state prisoner seeking to appeal a district court's denial of a habeas petition must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). The district court may issue a certificate of appealability if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To satisfy this standard, a petitioner must show that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).

A district court that issues an order denying a habeas petition must either grant or deny a certificate of appealability. See Rules Governing § 2254 Cases, Rule 11(a). The Ninth Circuit has noted that the standard for granting a certificate of appealability is "relatively low." Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002). A petitioner "need not show that he should prevail on the merits," Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000), but may be entitled to a certificate when the "questions are adequate to deserve encouragement to proceed further." Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983) (quoting Gordon v. Willis, 516 F. Supp. 911, 913 (N.D. Ga. 1980)), superseded on other grounds by 28 U.S.C. § 2253(c)(2). Here, Petitioner has failed to make "a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), and reasonable jurists would not find debatable this Court's assessment of Petitioner's claims. See Slack, 529 U.S. at 484. Accordingly, the Court DENIES Petitioner's request for a certificate of appealability.

V. CONCLUSION

For the foregoing reasons, the Court OVERRULES Petitioner's objections, ADOPTS the Magistrate Judge's R&R, GRANTS Respondent's motion to dismiss and DISMISSES the Petition without leave to amend, and DENIES Petitioner's request for a certificate of appealability. The Court DIRECTS the Clerk of Court to enter judgment accordingly and close the case.

IT IS SO ORDERED. Dated: February 23, 2021

/s/_________

HON. MICHAEL M. ANELLO

United States District Judge