1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

 This petition was originally filed on November 21, 2002, but not reassigned to the

undersigned, by random assignment, until November 19, 2004. See Order, filed on November

19, 2004.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ALONZO REED,

Petitioner, No. CIV S-04-2471 FCD GGH P

vs.

ROY A. CASTRO, Warden, 

Respondent. FINDINGS AND RECOMMENDATIONS

 /

Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254.

1

 Petitioner alleges that he was denied his

constitutional rights to due process at a prison disciplinary hearing. Respondent moves to

dismiss this action on statute of limitations grounds and on the grounds that petitioner has not

framed a cognizable claim. Although respondent sets forth no legal argument in support of the

statute of limitations bar, review by this court of briefing by both parties reveals that respondent’s

contention that petitioner has failed to state a ground for habeas relief is well-taken and the

undersigned must recommend dismissal with prejudice of this petition.

Case 2:04-cv-02471-FCD-GGH Document 12 Filed 05/06/05 Page 1 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

 This state regulatory provision sets forth the criteria upon which an inmate is assigned

an investigative employee to assist in matters pertaining to a disciplinary action.

3

 This provision sets forth the duties of a staff assistant assigned to assist an inmate

subject to a disciplinary hearing arising from a serious rules violation report.

4

 “Inmates may not obtain anything by theft, fraud or dishonesty.”

5

 This code section sets forth the penalties for the offense of receiving stolen property.

2

Petition

Petitioner alleged that he was denied his due process rights at an April 25, 2001

hearing on a serious rules violation report (RVR) when prison officials failed to provide notice to

petitioner of the hearing and did not appoint a staff assistant on his behalf pursuant to CAL. CODE 

REGS. tit.xv, §§ 3315(d)2 and 3318(b)3 and in violation of his rights under the state and federal

constitutions. Form petition, p. 7. Petitioner also claims that he was found guilty of a charge of

theft on insufficient evidence as well as a charge under CAL. CODE REGS. tit.xv, § 30124 and Cal.

Penal Code § 496.5 Id. Petitioner then goes on to assert that prison officials failed to follow the

appropriate procedures governing rules violation reports, including when reducing a CDC 115

violation report to a lesser charge. Id. 

Motion to Dismiss

Respondent asserts that the petition must be denied as “petitioner cannot state a

cognizable constitutional claim because petitioner’s rules violation report was reduced to a

counseling chrono prior to hearing,” which had no effect on the duration of petitioner’s

confinement. Motion, p. 3. 

Respondent submits a copy of the petitioner’s rules violation report issued on

April 10, 2001 for theft after a correctional officer told petitioner, on April 4, 2001, to stop

wrapping tape onto the barrel of a ballpoint pen from the prison library’s tape spool, cautioned

him that taking the tape constituted theft, and then had petitioner searched, whereupon the

“contraband” was located on petitioner. Exhibit 1 to motion, Rules Violation Report, dated April

Case 2:04-cv-02471-FCD-GGH Document 12 Filed 05/06/05 Page 2 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

10, 2001. A further review of the exhibit indicates that the administrative RVR is noted as

having later been “reduced to 128A per K. J. Howard.” Id. 

Respondent’s Exhibit 2 indicates that petitioner did not request postponement of

his hearing pending referral of the RVR to the district attorney, but did request both a staff

assistant and an investigative employee on April 13, 2001. Motion, p. 3, Exhibit 2, CDC 115A

dated 4-13-01. Respondent’s exhibit 3, a copy of a CDC 128A counseling chrono, indicates that

the RVR was reduced, on April 25, 2001, by a Lieutenant K. Howard from a rules violation

report to a counseling chrono. 

Opposition

Petitioner continues to argue that he has been denied due process. See opposition.

Petitioner concedes, however, although he wrongly deems it to be irrelevant, that he “suffered

zero credit loss as a result” of the RVR at issue. Opp., p. 2. 

Discussion 

The fact that the parties agree that the duration of petitioner’s sentence was in no

way affected as a result of the rules violation report which was transmuted to a counseling chrono

prior to any hearing signifies that petitioner cannot proceed pursuant to 28 U.S.C. § 2254. 

Petitioner has not met the threshold requirement for bringing a petition for writ of habeas corpus.

“[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that

custody, and ...the traditional function of the writ is to secure release from illegal custody.” 

Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S. Ct. 1827, 1833 (1973). Petitioner concedes that

he was never in custody as a result of a prison disciplinary hearing, but instead complains that he

was denied his due process and equal protection rights because he was not a part of any hearing

wherein his RVR was reduced to a counseling chrono and denied his right to a staff assistant. 

Opp., p. 2. Section 2254 requires that the petitioner be “in custody.” 28 U.S.C. § 2254(a); see

Maleng v. Cook, 490 U.S. 488, 490-91, 109 S. Ct. 1923 (1989). Whatever the gray areas of

determining whether one is “in custody,” the undersigned has no problem in concluding that a

Case 2:04-cv-02471-FCD-GGH Document 12 Filed 05/06/05 Page 3 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

4

prison disciplinary action, not at all involving the loss of time credits, and resulting only in a

counseling, never satisfied the jurisdictional custody requirement for habeas corpus actions. 

This leaves the possibility of amending to state a civil rights action. However,

given the circumstances here, such is not possible. Due process concerns are not implicated

unless the discipline imposed constitutes an atypical or significant hardship. Opp., p. 4, citing

Sandin v. Connor, 515 U.S. 472, 487, 115 S. Ct. 2293, 2302 (1995). As noted, petitioner does

not contend that he was assessed any credit loss and, as respondent shows, the record indicates

that there was no prison disciplinary hearing held on petitioner’s RVR because it was reduced to

a counseling chrono prior to any such hearing. Thus far, federal courts have not been tasked with

overseeing prison counseling sessions. The mere fact of counseling cannot constitute a

significant hardship. 

The undersigned must recommend dismissal of this petition with prejudice

because petitioner has not framed a claim appropriate for habeas relief and, on the face of it, 

there can be no cure for this application that is fatally defective under 28 U.S.C. § 2254.

Accordingly, IT IS HEREBY RECOMMENDED that respondent’s February 11,

2004 motion to dismiss be granted and the petition be dismissed with prejudice.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned

“Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections

shall be served and filed within ten days after service of the objections. The parties are advised 

\\\\\

\\\\\

\\\\\

\\\\\

Case 2:04-cv-02471-FCD-GGH Document 12 Filed 05/06/05 Page 4 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

5

that failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: 5/5/05

/s/ Gregory G. Hollows

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

GGH:009

reed2741.fr

Case 2:04-cv-02471-FCD-GGH Document 12 Filed 05/06/05 Page 5 of 5