Victor Fourstar, Jr. v. Paul Copenhaver

Opinion

FILED NOT FOR PUBLICATION MAR 26 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

VICTOR CHARLES FOURSTAR, Jr., No. 16-16290

Petitioner-Appellant, D.C. No. 1:14-cv-01456-SKO

v. MEMORANDUM* PAUL COPENHAVER,

Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of California Sheila K. Oberto, Magistrate Judge, Presiding

Argued and Submitted March 15, 2019 San Francisco, California

Before: W. FLETCHER, WATFORD, and HURWITZ, Circuit Judges.

Victor Fourstar, Jr. appeals the district court’s denial of his 28 U.S.C. § 2241

habeas corpus petition. We have jurisdiction pursuant to 28 U.S.C. § 1291. We

affirm the district court.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. We review de novo the district court’s decision denying Fourstar’s petition

for habeas corpus filed pursuant to 28 U.S.C. § 2241. Wilson v. Belleque, 554 F.3d

816, 828 (9th Cir. 2009). Fourstar argues his right to due process was violated

during a prison disciplinary hearing because he was not permitted to present a

witness. Procedural due process requires that an inmate have an opportunity to

present witnesses at a disciplinary hearing. See Wolff v. McDonnell, 418 U.S. 539,

566–67 (1974). However, a disciplinary hearing officer may exclude a witness’s

testimony if that testimony is irrelevant. See id. Here, the requested witness’s

testimony concerned a subsequent alleged assault and was not relevant to the issue

before the disciplinary hearing officer, a fight that occurred earlier that day.

During the habeas proceedings, Fourstar submitted an unsworn “affidavit” stating

that the witness saw the first attack, but he does not claim that the disciplinary

hearing officer was aware of this. We hold that Fourstar’s right to procedural due

process was not violated.

Fourstar argues the district court abused its discretion by denying him the

right to an evidentiary hearing. The district court did not abuse its discretion by

declining to grant an evidentiary hearing because the record “conclusively shows

that petitioner is not entitled to habeas corpus under 28 U.S.C. § 2241.” Anderson

v. United States, 898 F.2d 751, 753 (9th Cir. 1990).

2 AFFIRMED.1

1 We GRANT the motion to withdraw the related motion to consolidate appeals (Dkt. Entry No. 78) and DENY Fourstar’s motion to consolidate (Dkt. Entry No. 77) as moot. 3