Opinion
Case No. 1:07-cv-00525 ALA (HC).
October 21, 2008
ORDER
Petitioner Jason Saunders ("Petitioner") is a state prisoner proceeding pro se with an application for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254(a).
In his application, Petitioner alleges that the California Department of Corrections and Rehabilitation ("CDCR") deprived him due process by "falsifying, antedating and manipulating official documents" to prevent him from filing a timely appeal of his disciplinary conviction. (Pet. at 31; Reply at 2.) Petitioner argues that his disciplinary appeal was untimely because he received his Rules Violation Report ("RVR") on July 6, 2006, thereby making his appeal automatically untimely under 15 C.C.R. § 3084.6(c). (Pet. at 9, Ex. 1.) Respondent claims that Petitioner received his RVR on June 9, 2006 at 9:00 P.M., and thus had ample time to file a disciplinary appeal within the time limit of 15 C.C.R. § 3084.6(c). (Answer at 4.) Petitioner requested an evidentiary hearing as to this issue.
15 C.C.R. § 3084.6(c) provides: "An appellant must submit the appeal within 15 working days of the event or decision being appealed, or of receiving an unacceptable lower level appeal decision."
On September 11, 2008, this Court ordered Petitioner by October 15, 2008 to file "a motion for an evidentiary hearing that demonstrates whether he presented a factual basis before the Fresno County Superior Court to support his claim that the CDCR deprived him due process by 'falsifying, antedating and manipulating official documents' that prevented him from filing a timely appeal." (Doc. 29.) This Court ordered Petitioner to respond to the following questions: "whether an evidentiary hearing was requested in the state court petition; what documentation Petitioner filed with the Fresno County Superior Court in his original habeas petition; and which Townsend factor or factors entitle him to an evidentiary hearing." (Doc. 29.) This Court ordered, alternatively, that "if Petitioner admits he failed to develop the factual basis for his claims in state court, he should proffer in his motion any facts that demonstrate that he qualifies for an evidentiary hearing under 28 U.S.C. § 2254(e)(2)." (Doc. 29.)
Petitioner has failed to file a motion or otherwise respond to the Court's order by October 15, 2008 demonstrating why he is entitled to an evidentiary hearing.
Accordingly, it is hereby ORDERED that Petitioner's request for an evidentiary hearing is DENIED.