Leroy Smith v. James Yates

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEROY SMITH,
Petitioner - Appellant,
v.
JAMES YATES,
Respondent - Appellee.
No. 09-16158
D.C. No. 1:07-cv-00303-RTB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Roger T. Benitez, District Judge, Presiding
Submitted September 13, 2010**
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
California state prisoner Leroy Smith appeals pro se from the district court’s
order denying his 28 U.S.C. § 2254 habeas petition challenging prison disciplinary
FILED
OCT 04 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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We certify for appeal, on our own motion, the issue of whether Smith’s1
rights to due process and equal protection were violated at the disciplinary hearing
where Smith was found guilty of possessing inmate-manufactured alcohol.
09-16158
action. We have jurisdiction under 28 U.S.C. § 2253 , and we affirm.1
Smith first contends that his due process rights were violated because the
prison authorities’ decision and the assessed 120-day credit forfeiture was not
supported by some evidence and because the Senior Hearing Officer improperly
denied Smith’s request for three additional witnesses. The record reflects that
Smith received all process that was due and that some evidence supports the
disciplinary findings. See Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974); see
also Superintendent v. Hill, 472 U.S. 445, 455 (1985). Contrary to Smith’s
contentions, no due process violation resulted from the failure to call witnesses
who could not provide any new relevant information. See Baxter v. Palmigiano,
425 U.S. 308, 321 (1976); see also Bostic v. Carlson, 884 F.2d 1267, 1271-72 (9th
Cir. 1989).
Smith also contends that he was denied equal protection because he was
found guilty under the same circumstances under which other inmates were
exonerated. The record reflects that no equal protection violation occurred because
Smith received the same disciplinary process and procedural safeguards received
by the inmates whose charges were dismissed. See Bruce v. Ylst, 351 F.3d 1283,

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09-16158
1288 (9th Cir. 2003) (“Although the Equal Protection Clause ensures similarly
situated persons are treated alike, it does not ensure absolute equality.”) The
prison official’s determinations were neither contrary to, nor involved an
unreasonable application of, clearly established federal law, nor was the decision
based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding. See 28 U.S.C. § 2254(d)(1)-(2).
AFFIRMED.

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