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28 ORDER- 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

JON ROYAL FLEMING,

Petitioner,

v.

KEN QUINN,

Respondent.

Case No. C05-5719RJB

REPORT AND RECOMMENDATION

REGARDING INJUNCTIVE RELIEF 

AND THE MERITS

NOTED FOR:

JULY 14TH, 2006

This 28 U.S.C. § 2254 petition for habeas corpus relief has been referred to the undersigned

Magistrate Judge pursuant to 28 U.S.C. § 636 (b) and local Rules MJR 3 and 4. Petitioner in this

action is seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2254.

INJUNCTIVE RELIEF

Preliminarily, the court must address petitioner’s past filing requests for injunctive relief.

Petitioner has filed two motions for temporary restraining orders or injunctions, (Dkt. # 41 and 45);

and a motion to amend those motions, (Dkt. # 47). All complaining of lack of paper and legal

supplies and lack of access to the law library. Prior to filing these motions petitioner filed his

traverse and there is no outstanding briefing in this action. (Dkt. # 38).

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28 ORDER- 2

Respondent has replied to the motions and explains that petitioner is on cell confinement as a

result of his behavior. (Dkt. # 46) He is only allowed law library access if he can show a deadline

within the next thirty days. Respondent argues petitioner can show no injury and is not entitled to

relief. (Dkt. # 46). Respondent shows that during the 30 days prior to the traverse being due

petitioner was given priority access privileges to the law library. (Dkt. # 46). Respondent also

shows the amount of library access given petitioner. (Dkt. # 46). Once the traverse was filed, Prison

authorities, who are not parties to this action, placed petitioner back on cell confinement to serve the

remainder of his sanction. The reason for the sanction is not before the court and is not the subject

matter of this action.

The basic function of injunctive relief is to preserve the status quo ante litem pending a

determination of the action on the merits. Los Angeles Memorial Coliseum Com'n v. National

Football League, 634 F.2d 1197, 1200 (9th Cir. 1980). A party seeking injunctive relief must fulfill

one of two standards, the "traditional" or the "alternative." Cassim v. Bowen, 824 F.2d 791, 795

(9th Cir. 1987). 

Under the traditional standard, a court may issue preliminary relief if it finds that (1) the

moving party will suffer irreparable injury if the relief is denied; (2) the moving party will

probably prevail on the merits; (3) the balance of potential harm favors the moving party; and

(4) the public interest favors granting relief. . . . Under the alternative standard, the moving

party may meet its burden by demonstrating either (1) a combination of probable success and

the possibility of irreparable injury or (2) that serious questions are raised and the balance of

hardships tips sharply in its favor.

 

Id. (citations omitted).

To have standing to seek any form of injunctive relief petitioner must show real and

immediate threat of irreparable injury and no adequate remedy at law. Nelsen v King County, 895 F.

2d 1248 (9th Cir. 1990). Petitioner fails to show that he will suffer any injury. All required

pleadings in this petition have been filed. Accordingly, the motions for restraining orders and

injunctions should be DENIED.

INTRODUCTION

Petitioner does not challenge his conviction or sentence in this petition. Petitioner challenges

the Department of Corrections decision not to credit his sentence with good time credits that were

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28 ORDER- 3

lost as a result of disciplinary actions.

CONVICTION HISTORY

In 1996 petitioner entered an Alford plea to two counts of burglary in the first degree and

one count of unlawful possession of a firearm. (Dkt. # 20, Exhibit 2). He was sentenced in Mason

County Superior Court to an exceptional sentence of 176 months. Petitioner’s defense counsel was

aware of a psychiatric report indicating petitioner may be incompetent to stand trial or enter a plea

and may be suffering from paranoid schizophrenia. The report and information were not given to the

sentencing Judge. (Dkt. # 20, Exhibit 2).

Petitioner’s conduct in prison resulted in his spending the majority of the next 7 years in the

Intensive Management Unit, IMU, and in his losing all good time credits as a result of his behavior. 

The loss of good time credits was the result of numerous major infractions that were the subject of

hearings.

In 2001 the Washington State Supreme Court vacated petitioner’s sentence. The decision

was based on ineffective assistance of counsel. (Dkt. # 20, Exhibit 2). The Washington State

Supreme Court held counsel was deficient in not bringing the psychiatric report to the trial court’s

attention so a competency hearing could be conducted.

The trial court conducted a competency hearing, and in 2002 petitioner was found

competent. (Dkt. # 20, Exhibit 2). Petitioner contends he was only found competent after he

received treatment. (Dkt. # 38). 

In 2002 petitioner entered into a plea agreement in which he plead guilty to attempted

burglary in the first degree, burglary in the first degree, and unlawful possession of a firearm in the

first degree. This plea agreement was not an Alford plea. The plea agreement stipulated the state

would drop other charges and the sentence of 176 months would be re-imposed. 

Petitioner was given credit for all time he had served, and the Department of Corrections

gave him 217 days good time credit for the time spent as a jail boarder from 2001 to 2002, but the

Department of Corrections did not give petitioner one third off his sentence for the time served from

1996 to 2001 because petitioner had lost all good time as a result of his conduct while incarcerated

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28 ORDER- 4

from 1996 to 2001. (Dkt. # 20, Exhibit 2).

PROCEDURAL HISTORY

Petitioner filed a Personal Restraint Petition challenging the Department’s refusal to give

him earned early release credits that had been taken away in disciplinary hearings from 1996 to 2001. 

Petitioner raised the following issues:

1. Should time served during illegal conviction turn into pre-sentence

incarceration upon new conviction, and there be a Modification of Judgment

and Sentence 4.5 (b) and Jail Certification to reflect both time served and

earned early release credit (good time)?

2. Should the Due Process protections of the 14th Amendment of the U.S.

Constitution protect both the illegal conviction and the illegal disciplinary

hearings when defendant was found incompetent to stand trial?

3. Should time have been taken off sentence on past and future convictions when

defendant has a liberty interest in receiving good time on new conviction?

4. Should defendant’s rights to Due Process and RCW 10.77.060’s protection

extend to pre-sentence incarceration when the Wn.2d had found defendant

incompetent?

5. Should DOC[‘s] failure to hold a competency hearing or appoint a staff

advisor prior to disciplinary hearings forfeit DOC’s right to impose such

hearings or sanctions, due to prejudice upon defendant since Dr. Whitehead’s

psychological evaluation finding the defendant incompetent was in DOC

central file? 

6. Should defendant have a right under the equal protection clause of the 14th

Amendment to the U.S. Constitution, Section 1, and the Washington State

Constitution, Article 1, Section 12, to receive good time on pre-sentence

incarceration when pre-sentence incarceration was previously on illegal

vacated convictions sentence, following RCW 10.01.050?

7. Does the March 14th, 2002 Amendment [to] RCW 9.94A.728, violate the Ex Post

Facto Clause in this instant case’s May 30, 2002 sentence?

8. Was there ineffective assistance of counsel during Attorney Richard Woodrow’s

assistance prior to or during defendant taking his guilty plea?

9. Should defendant have been allowed to amend or withdraw his guilty plea

since he had incorrectly been told he could make an Alford plea at sentencing,

which advice was a condition and basis for his making a guilty plea to an

exceptional sentence?

10. Was there an unlawful use of an incorrect P.S.I. report as there was indeed a

presence of mitigating factors which were not allowed to be argued, and there

was no time to object or prepare?

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28 ORDER- 5

11. Should disciplinary infractions from 12-16-03 until present be dismissed as

defendant’s competency was tolled by Judge Toni Sheldon during this time

period and no procedures were followed by DOC to protect defendant’s due

process rights or to vacate the prior history upon which the sanctions were

based?

12. Should an inmate whose behavior merited classification as minimum custody

placement have had his classification demoted to medium custody with a

procedurally improper POL override when there had been no disciplinary

hearing findings of guilt?

13. Should all infractions dated January 2001 to present be dismissed or sanctions

reheard due to vacation of prior history which was relied upon for sanctions?

14. Should 603 infraction be dismissed for lack of evidence, lack of chance to

secure evidence, absence of impartial fact finders, refusal to call witnesses, and

vacation of prior history upon which the sanctions were based?

15. Should 662 infraction be dismissed for lack of evidence, refusal to call

witnesses, refusal to look at account history, lack of chance to secure

evidence, and vacation of prior history upon which the sanctions were based?

16. Should 718 infraction be dismissed for refusal to call witnesses, refusal of

chance at continuance to secure evidence, refusal to admit evidence and

vacation of prior history upon which the sanctions were based?

17. Should 605 be dismissed for lack of direct evidence, refusal to call witnesses,

and vacation of prior history upon which the sanctions were based?

18. Should DOC Policy 350.100 directive 1(H) be correctly applied to this instant

case, and defendant not lose any ERT associated with previous sentence?

(Dkt. # 20, Exhibit 4). Petitioner filed a supplement brief raising one additional issue:

19. Should infraction 600 be dismissed for failure to call witnesses, refusal to

explain why witnesses were not called and for a total lack of evidence?

(Dkt. # 20, Exhibit 5). Petitioner then filed a motion to amend the petition and added one more

 issue:

20. Should a jury decide if Petitioner should receive an exceptional sentence for

Counts IV, III, and V, due to the fact the reasons given for the exceptional

sentence are now not constitutional, and plea was not voluntary, and was

possibly a product of ineffective assistance of counsel?

(Dkt. # 20, Exhibit 10). On May 26th, 2005 the Washington State Court of Appeals denied the

petition. (Dkt. # 20, Exhibit 2).

Petitioner filed a motion for discretionary review in which he raised the following issues:

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28 ORDER- 6

1. Did the Chief Judge err by not determining that the time served prior to the

May 7, 2002 conviction should now be considered pre-sentence incarceration?

(Ground 1 of PRP).

2. Did the Chief Judge err by not determining if the Due Process protections of

the 14th Amendment of the U.S. Constitution protect both convictions, and

disciplinary hearings that take good time, when petitioner was found to be

incompetent to stand trial by Dr. Whitehead’s expert opinion? (Ground 2)

3. Did the Chief Judge err by not determining if petitioner had a right for DOC

to hold a competency hearing or appoint a staff advisor prior to disciplinary

hearings and sanctions due to the fact that Dr. Whitehead’s psychological

evaluation finding the defendant not culpable and not competent to stand trial

was held in petitioner’s DOC central file, stamped January 1997? (Ground 5) 

4. Did the Chief Judge err by determining there was not ineffective assistance of

counsel? (Ground 8, ground 10)

5. Did the Chief Judge err by not determining a reversal of the 1996 to 2002

disciplinary hearings would require a new sanction hearing for all sanctions

imposed from May 2002, to present due to their [sic] all relying upon the

“Past Infraction History” on the written findings for reason for sanctions?

6. Did the Chief Judge err by determining all witnesses were called and that there

was ‘some or any evidence’ to support the hearing officer’s conclusion in

petitioner’s 600 infraction hearing?

(Dkt. # 20, Exhibit 13 at v-vi). On August 3rd, 2005 the Washington State Supreme Court denied

review. (Dkt. # 20, Exhibit 17).

On November 2nd, 2005 petitioner filed his federal habeas action and he raises the following

issues:

1. Is there a Due Process protection under the 14th Amendment to the United

States Constitution that Petitioner is entitled to for prison disciplinary hearings

held from 2/6/1966 to 3/18/2002, in light of the expert opinion by Dr.

Whitehead that Petitioner was incompetent to stand trial when disciplinary

hearings sentenced Petitioner to additional time in prison?

2. Ineffective assistance of counsel for failure to argue that earned early release

time lost through disciplinary sanctions should not apply to new conviction.

(Dkt. #3). In addition petitioner has filed a “memorandum” in which he raises issues A through N as

follows:

A. To determine and establish case law for a Petitioner whos [sic]

Criminal conviction was vacated after 7 years due to ineffective

assistance of counsel that did not present his evidence of mental

incompetence to stand trial to the court, and as a result, Petitioner was

sent to Prison instead of a Mental Hospital for treatment, and held in

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Solitary Confinement, and ‘Sentenced’ to 5 years loss of goodtime in

disciplinary hearings he does not remember for infractions he did not

commit.

B. For this special situation, (vacated conviction due to doubt to [sic]

competency) what 14th Amendment due process rights apply?

C. In light of the new evidence that DOC has a copy of Dr. Whiteheads

expert opinion of Mr. Flemmings [sic] Mental Incompetence, is Mr.

Fleming entitled to the protections of and due process of ; WAC 137-

28-290 (2)(e), WAC 137-28-300 (1), WAC 137-28-340, WAC 137-

28-360, for all disciplinary hearings and Sanctions from 2/6/ 1996 to

3/18/2002? And re-sanction of all hearings past 3/18/2002?

D. Is petitioner entitled to have competency determined now?

E. Is petitioner entitled to equitable tolling of any Habeas or State

deadline due to Mental Incompetence and breakdowns and current

Mental illness?

F. Does the lack of procedures to protect Mentally incompetent prisoners

at disciplinary hearings where goodtime is taken violate Due Process?

G. Does petitioner have a Substantive Due Process right to be found

competent prior to being ‘sentenced’ to a loss of goodtime at a prison

disciplinary hearing? That he cannot waive!?

H. Does petitioner had a Procedural Due Process right to be found

competent prior to being ‘sentenced’ to a loss of goodtime at prison

disciplinary hearings? 

I. In light of the informative Kori L. Lake decision, does petitioner have

a right to have his mental illness considered on all Sanctions?

J. Is petitioner entitled to a staff advisor for prison disciplinary hearings

when facing loss of goodtime when doubt to competency exists? 

K. Should the record be expanded, Discovery granted, or evidence

hearings held to grant relief due to the facts raised?

L. Should counsel be appointed?

M. Should this be remanded back to the Washington Supreme Court for

relief to be determined? 

N. Is petitioner entitled to immediate release from prison due to return of

lost goodtime?

(Dkt. # 4, pages 3 to 6).

EVIDENTIARY HEARING NOT REQUIRED

In its’ Order Directing Service and Response, the court directed respondent to state in his

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response whether or not an evidentiary hearing was necessary. Accordingly, respondent has

informed the court that he does not think an evidentiary hearing is required. The function of an

evidentiary hearing is to try issues of fact, such a hearing is unnecessary when only issues of law are

raised. See e.g. Yeaman v. United States, 326 F.2d 293 (9th Cir. 1963). After careful review of the

record, and despite petitioners requests to expand the record and conduct hearings, the undersigned

judge concludes that there are no relevant factual disputes to resolve in order for the court to render

its decision in this case. Accordingly, an evidentiary hearing was not conducted.

STANDARD

Federal courts may intervene in the state judicial process only to correct wrongs of a

constitutional dimension. Engle v. Isaac, 456 U.S. 107 (1983). Section 2254 is explicit in that a

federal court may entertain an application for writ of habeas corpus “only on the ground that [the

petitioner] is in custody in violation of the constitution or law or treaties of the United States.” 28

U.S.C. § 2254(a). The Supreme court has stated many times that federal habeas corpus relief does

not lie for mere errors of state law. Lewis v. Jeffers, 497 U.S. 764 (1990); Pulley v. Harris, 465 U.S.

37, 41 (1984); Estelle v. McGuire, 502 U.S. 62 (1991). 

A habeas corpus petition shall not be granted with respect to any claim adjudicated on the

merits in the state courts unless the adjudication either (1) resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established federal law, as determined by the

Supreme Court; or (2) resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented to the state courts. 28 U.S.C. §2254(d). Further, a

determination of a factual issue by a state court shall be presumed correct, and the applicant has the

burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C.

§2254(e)(1). Thus, the court does not conduct a de novo review of the state court proceedings or

re-try the individual disciplinary hearings at issue in this case.

DISCUSSION

Exhaustion and procedural bar.

Respondent concedes petitioner has exhausted grounds one and two and issues A, B, and C. 

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(Dkt. # 19, page 8). Respondent contends the remaining issues are unexhausted and procedurally

barred. (Dkt. # 19, pages 10 through 14). Review of the issues raised by petitioner in his motion for

discretionary review show respondent’s position to be correct. (Dkt. # 20, Exhibit 13).

In order to satisfy the exhaustion requirement, petitioner’s claims must have been fairly

presented to the state's highest court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v.

Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). A federal habeas petitioner must provide the state

courts with a fair opportunity to correct alleged violations of prisoners' federal rights. Duncan v.

Henry, 513 U.S.364, 115 S.Ct. 887, 888 (1995). It is not enough that all the facts necessary to

support the federal claim were before the state courts or that a somewhat similar state law claim was

made. Id, citing Picard v. Connor, 404 U.S. 270 (1971) and Anderson v. Harless, 459 U.S. 4

(1982). The majority of “issues” in this petition are unexhausted. The court agrees that grounds one

and two have been fully exhausted as have issues A, B, and C.

Normally, a federal court faced with an unexhausted or mixed petition dismisses the petition

without prejudice, so that the petitioner has an opportunity to exhaust the claims in state court. Rose

v, Lundy, 455 U.S. 509, 522 (1982). The exhaustion doctrine is based on comity, not jurisdiction. 

Rose v, Lundy, 455 U.S. at 518. Here, petitioner has filed a full round of state petitions and is

precluded by state law from filing a second of successive petition in state court. Thus, this court

must consider if the unexhausted issues are procedural barred.

For procedural bar to occur a petitioner must fail to raise an issue at each stage of state

review and thereby fail to exhaust that issue. If the states procedural rules prevent the petitioner

from returning to state court or filing another petition and exhausting that issue the issue cannot be

raised in federal court and is procedurally barred 

When a state prisoner defaults on federal habeas claims in state court pursuant to an

independent and adequate state procedural rule, federal habeas review of the claims is barred unless

the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged

violation of federal law, or show that failure to consider the claims will result in a fundamental

miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750-751 (1991). 

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Cause and Prejudice: To satisfy the "cause" prong of the cause and prejudice standard,

petitioner must show that some objective factor external to the defense prevented him from

complying with the state's procedural rule. Coleman, 501 U.S. at 752-753 (citing Murray v. Carrier,

477 U.S. 478, 488 (1986)). Prejudice exists if the alleged errors were of constitutional dimensions

and worked to the defendant's actual and substantial disadvantage. United States v. Frady, 456 U.S.

152, 170 (1982). Petitioner has not shown any facts to establish that an objective factor external to

the defense prevented him raising his issues in his personal restraint petition and motion for

discretionary review. Because petitioner has not established cause for the default, it is unnecessary

to consider whether he was actually prejudiced. 

On the Merits.

Petitioner claims that because of his mental status he was entitled to protection under the Due

Process Clause of the 14th Amendment with regard to disciplinary hearings held between 1996 and

2001. He contends he is entitled to the good time credits that were taken away or not earned. The

Washington State Court of Appeals considered his claims in a number of contexts and held:

Issue 1

....

However, under RCW 9.94A.728 (1), earned release time, sometimes called good

time, is “for good behavior and good performance, as determined by the correctional

agency having jurisdiction.” While an offender can earn earned release time for presentence incarceration, RCW 9.94A.728(1) does not make earned time for presentence incarceration inviolable. From October 10, 1996 to March 22, 2001,

Fleming was under the jurisdiction of the Department, serving his sentence. Even

assuming that the vacation of his sentence caused that time to become pre-sentence

incarceration time, his eligibility for earned release time for that time was still

determined by the Department. The Department determined that as a result of

disciplinary infractions during that time, Fleming had lost the earned release time he

had earned. Fleming shows no violation of RCW 9.94A728(1) in calculating his

release credits.

Issues 2 and 4 

Fleming argues that because the supreme court found that he was incompetent to

enter his plea of guilty in 1996, and was not found competent until 2002, he was

incompetent as to any disciplinary infraction proceedings that occurred during that

time. Thus, he contends he is entitled to the earned release credits that the

Department ruled he had lost as a result of the disciplinary infractions.

Fleming misapprehends the decision of the supreme court. It did not find he was

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incompetent in 1996. It found only that his trial counsel denied him effective

assistance of counsel regarding having the trial court determine competency. Fleming

has not demonstrated that he was incompetent, for purposes of disciplinary infraction

proceedings, between 1996 and 2002. Thus, he fails to demonstrate that the

Department erred in ruling that as a result of disciplinary infractions, he had lost any

earned release credits he had accumulated between 1996 and 2001. 

Issue 3

Fleming argues that under RCW 9.94A.728(1), he has a constitutionally protected

liberty interest in having earned release time, for the time served under his vacated

judgement and sentence, credited against his current sentence. But while RCW

9.94A.728(1) provides that an offender can earn release time while under presentence incarceration, RCW 9.94A728(1) does not provide that the offender cannot

lose the earned release time that he accumulates. “Each correctional institution is

independently responsible for the award or denial of good time to the offenders over

which it has jurisdiction.” In Re Personal Restraint of Williams, 121 Wn.2d 655,

663, 853 P.2d 444 (1993). The Department concluded that because of his

disciplinary infractions, Fleming lost whatever earned release time he had accumulated

between 1996 and 2001. Fleming shows no violation in his liberty interest resulting

from the Department’s decisions.

Issue 5 

Fleming argues that because the supreme court found he was incompetent in 1996,

and because the trial court did not find him competent until 2002, he was entitled to a

staff advisor for any disciplinary infraction proceedings between 1996 and 2002. He

contends that because the Department did not give him a staff advisor, his disciplinary

infractions between 1996 and 2002 were illegal. Accordingly, he contends he is

entitled to regain the earned release time he lost as a result of those disciplinary

infractions. 

Again, Fleming misapprehends the supreme court’s decision. It did not find he was

incompetent from 1996 on. No court ever made a finding that he was incompetent. 

He fails to present evidence that he was unable to defend or represent himself

adequately during his disciplinary proceedings, such that he would have been entitled

to a staff advisor. WAC 137-28-340 and In Re Personal Restraint Petition of

McVey, 99 Wn. App. 502, 508-09, 993 P.2d 267 (1999). The absence of a staff

advisor during the 1996 to 2002 disciplinary infraction proceedings does not make

them illegal.....

Issues 8, 9 and 10

Fleming argues that his 2002 trial counsel denied him effective assistance of counsel

in a number of regards. To demonstrate ineffective assistance of counsel, Fleming

must show that his counsel’s performance was deficient and that a reasonable

probability exists that the result of his proceeding would have been different but for

that deficient performance. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d

563 (1996). ....

Second, Fleming contends that his counsel was deficient in failing to assure he

received the earned release credits he believes he in entitled to. But as discussed in

Issues 1 through 5, he is not entitled to any earned release credits beyond those the

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Department has credited him with. He fails to show deficient performance.

(Dkt. # 20, Exhibit 2. pages 3 to 6).

To obtain relief petitioner must show the ruling of the state court resulted in a decision that

was contrary to, or involved an unreasonable application of, clearly established federal law, as

determined by the Supreme Court; or resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented to the state courts. 28 U.S.C. §2254(d).

The due process protections an inmate has in a disciplinary hearing where an inmate faces the

loss of good time that has been earned and credited against his sentence were set forth in Wolff v.

McDonnell, 418 U.S. 539 (1974). The court in Wolff noted the full panoply of rights owed a

criminal defendant do not apply to prison discipline and stated:

A prisoner is not wholly stripped of constitutional protections, and though prison

disciplinary proceedings do not implicate the full panoply of rights due a defendant in

a criminal prosecution, such proceedings must be governed by a mutual

accommodation between institutional needs and generally applicable constitutional

requirements.

Since prisoners in Nebraska can only lose good-time credits if they are guilty of

serious misconduct, the procedure for determining whether such misconduct has

occurred must observe certain minimal due process requirements (though not the full

range of procedures mandated in Morrissey, supra, and Scarpelli, supra, for parole

and probation revocation hearings) consonant with the unique institutional

environment and therefore involving a more flexible approach reasonably

accommodating the interests of the inmates and the needs of the institution.

(a) Advance written notice of charges must be given to the disciplinary action inmate,

no less than 24 hours before his appearance before the Adjustment Committee.

(b) There must be ‘a written statement by the factfinders as to the evidence relied on

and reasons for (the disciplinary action).’Morrissey v. Brewer, supra, 408 U.S., at

489, 92 S.Ct., at 2604.

(c) The inmate should be allowed to call witnesses and present documentary evidence

in his defense if permitting him to do so will not jeopardize institutional safety or

correctional goals.

(d) The inmate has no constitutional right to confrontation and cross-examination in

prison disciplinary proceedings, such procedures in the current environment, where

prison disruption remains a serious concern, being discretionary with the prison

officials.

(e) Inmates have no right to retained or appointed counsel in such proceedings,

although counsel substitutes should be provided in certain cases.

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Wolff, at 541, 542. (Emphasis added). Thus, the holding of the supreme court does not mandate a

staff advisor or address competency issues. The Washington State Court of Appeals decision was

not contrary to clearly established law as decided by the Supreme Court and did not result in a

decision that was based on an unreasonable determination of the facts in light of the evidence

presented to the state courts. Petitioner failed to place evidence that he was actually incompetent

from 1996 to 2001 before the state court and he is not entitled to relief. This petition should be

DISMISSED. A proposed order accompanies this report and recommendation.

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal rules of Civil Procedure, the

parties shall have ten (10) days from service of this Report to file written objections. See also Fed.

R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of

appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule

72(b), the clerk is directed to set the matter for consideration on July 14th, 2006, as noted in the

caption.

DATED this 22nd day of June, 2006.

/S/ J. Kelley Arnold

J. Kelley Arnold

United States Magistrate Judge

Case 3:05-cv-05719-RJB Document 54 Filed 06/22/06 Page 13 of 13