(HC) Mitchell v. Adams, No. 1:2010cv02010 - Document 6 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss the Petition for Failure to State a Cognizable Claim 1 and to Decline to Issue a Certificate of Appealability, signed by Magistrate Judge Sandra M. Snyder on 1/27/11. Referred to Judge Wanger. (Verduzco, M)
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(HC) Mitchell v. Adams Doc. 6 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 SHAULTON J. MITCHELL, 11 Petitioner, 12 v. 13 DONNELL ADAMS, Warden, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—02010–OWW-SMS-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR FAILURE TO STATE A COGNIZABLE CLAIM (Doc. 1) AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY DEADLINE FOR OBJECTIONS: THIRTY (30) DAYS 16 17 Petitioner is a state prisoner proceeding pro se and in 18 forma pauperis with a petition for writ of habeas corpus pursuant 19 to 28 U.S.C. § 2254. 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 21 Rules 302 and 304. 22 which was filed on October 26, 2010. The matter has been referred to the Pending before the Court is the petition, 23 I. 24 Rule 4 of the Rules Governing § 2254 Cases in the United Screening the Petition 25 States District Courts (Habeas Rules) requires the Court to make 26 a preliminary review of each petition for writ of habeas corpus. 27 The Court must summarily dismiss a petition "[i]f it plainly 28 appears from the petition and any attached exhibits that the 1 Dockets.Justia.com 1 petitioner is not entitled to relief in the district court....” 2 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 3 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 4 1990). 5 grounds of relief available to the Petitioner; 2) state the facts 6 supporting each ground; and 3) state the relief requested. 7 Notice pleading is not sufficient; rather, the petition must 8 state facts that point to a real possibility of constitutional 9 error. Habeas Rule 2(c) requires that a petition 1) specify all Rule 4, Advisory Committee Notes, 1976 Adoption; 10 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 11 Allison, 431 U.S. 63, 75 n. 7 (1977)). 12 that are vague, conclusory, or palpably incredible are subject to 13 summary dismissal. 14 Cir. 1990). 15 Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Further, the Court may dismiss a petition for writ of habeas 16 corpus either on its own motion under Habeas Rule 4, pursuant to 17 the respondent's motion to dismiss, or after an answer to the 18 petition has been filed. 19 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 20 (9th Cir. 2001). 21 Advisory Committee Notes to Habeas Rule Here, Petitioner is an inmate of the California State Prison 22 at Corcoran serving an eight-year sentence imposed in the Fresno 23 County Superior Court. 24 due process of law guaranteed by the Fourteenth Amendment in 25 connection with a prison disciplinary proceeding which resulted 26 in forfeiture of 360 days of credit. 27 Petitioner alleges that he was initially charged with and found 28 guilty of having possessed dangerous contraband on June 23, 2009; He claims that he suffered a denial of 2 (Pet. 1, 3, 8, 22.) 1 later, during the administrative appellate process, the charge 2 was amended to the more serious offense of possession of a deadly 3 weapon. 4 possessing a deadly weapon. 5 process rights were violated by the re-issuance and rehearing of 6 the more serious violation. 7 greater sentence for the more serious finding was unauthorized 8 under state statutory and regulatory law, and the amendment of 9 the initial charge was contrary to state policy. After rehearing, Petitioner was found guilty of Petitioner claims that his due Petitioner also claims that the 10 II. 11 Petitioner alleges that the amendment of the charge and the Due Process of Law 12 punishment imposed after rehearing violated his right to due 13 process of law. 14 15 A. Legal Standards Because the petition was filed after April 24, 1996, the 16 effective date of the Antiterrorism and Effective Death Penalty 17 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 18 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 19 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 20 A district court may entertain a petition for a writ of 21 habeas corpus by a person in custody pursuant to the judgment of 22 a state court only on the ground that the custody is in violation 23 of the Constitution, laws, or treaties of the United States. 28 24 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 25 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 26 16 (2010) (per curiam). 27 28 Lindh With respect to prison disciplinary proceedings, procedural due process of law guaranteed by the Fourteenth Amendment 3 1 requires that where the state has made good time subject to 2 forfeiture only for serious misbehavior, then prisoners subject 3 to a loss of good-time credits must be given advance written 4 notice of the claimed violation, a right to call witnesses and 5 present documentary evidence where it would not be unduly 6 hazardous to institutional safety or correctional goals, and a 7 written statement of the finder of fact as to the evidence relied 8 upon and the reasons for disciplinary action taken. 9 McDonnell, 418 U.S. 539, 563-64 (1974). Wolff v. Confrontation, cross- 10 examination, and counsel are not required. 11 568-70. Wolff, 418 U.S. at 12 Further, where good-time credits are a protected liberty 13 interest, the decision to revoke credits must be supported by 14 some evidence in the record. 15 445, 454 (1985). 16 17 18 19 20 21 22 23 24 Superintendent v. Hill, 472 U.S. The Court in Hill stated: We hold that the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if “there was some evidence from which the conclusion of the administrative tribunal could be deduced....” United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S., at 106, 47 S.Ct., at 304. Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. See ibid.; United States ex rel. Tisi v. Tod, 264 U.S. 131, 133-134, 44 S.Ct. 260, 260-261, 68 L.Ed. 590 (1924); Willis v. Ciccone, 506 F.2d 1011, 1018 (CA8 1974). 25 Superintendent v. Hill, 472 U.S. at 455-56. 26 does not require that the evidence logically preclude any 27 conclusion other than the conclusion reached by the disciplinary 28 board; rather, there need only be some evidence in order to 4 The Constitution 1 ensure that there was some basis in fact for the decision. 2 Superintendent v. Hill, 472 U.S. at 457. 3 4 B. Analysis Petitioner attached to the petition records of the 5 disciplinary proceedings. 6 Petitioner alleged that on June 25, 2009, he was provided a copy 7 of a rules violation report for possession of dangerous 8 contraband, and was found guilty of that offense on July 20, 9 2009. 10 In his administrative appeal, (Pet. 17.) A memorandum from a chief disciplinary officer to the 11 facility captain at the Corcoran prison, dated August 3, 2009, 12 reflects that after an audit of the disciplinary proceeding, it 13 was determined that the information provided in the rules 14 violation report did not appropriately support the charged 15 offense of possession of dangerous contraband, but rather the 16 charge of possession of a deadly weapon; the officer directed 17 that the charge (“CDCR 115") be reissued and reheard, and that it 18 and a copy of the order for rehearing be given to Petitioner. 19 (Pet. 18.) 20 The report of Correctional Lieutenant M. Gamboa dated August 21 15, 2009, details the pre-hearing procedures as well as the 22 hearing that took place on August 14, 2009. 23 Petitioner received a copy of the rules violation report on 24 August 9, 2009, along with the memorandum directing a rehearing. 25 (Pet. 22.) 26 written notice of the claimed violation. 27 28 (Pet. 22-25.) Thus, Petitioner received in advance of the hearing Petitioner was assigned an investigative employee (IE) and a staff assistant on August 9, 2009, and he received a copy of the 5 1 IE’s report on August 12, 2009. 2 an invitation to review the photographic evidence before the 3 hearing. 4 (Pet. 23.) Petitioner declined (Pet. 25.) The documentation reflects that because Petitioner refused 5 to attend the hearing, a plea of not guilty was entered on his 6 behalf by the hearing officer. 7 request any witnesses to be present at the hearing. 8 29.) 9 requested that he be permitted to submit any documentary (Pet. 24.) Petitioner did not (Pet. 24, There is no indication in the petition that Petitioner 10 evidence. 11 attached documentation that Petitioner had a right to call 12 witnesses and present documentary evidence but declined to avail 13 himself of the opportunity to do so. 14 appears with respect to this aspect of the proceedings. Therefore, it appears on the face of the petition and No violation of due proces 15 The hearing officer decided that Petitioner was guilty of 16 the offense of possession of a deadly weapon, and he based the 17 finding on the preponderance of the evidence at the hearing. 18 (Pet. 24.) 19 completed report (Pet. 8), which in turn stated the reasons for 20 the decision and the evidence relied upon by the hearing officer 21 (Pet. 24-25). 22 the evidence relied upon and reasons for the decision. Petitioner admitted that he received a copy of the Petitioner thus received a written statement of 23 Although Petitioner argues that he was unable to exhaust 24 administrative remedies in a timely fashion, any failure to do so 25 does not affect the analysis set forth in this order, which 26 addresses the operative allegations of the petition and the 27 associated documentation. 28 Petitioner does not allege any facts that contradict the 6 1 documentation. 2 In summary, the Court concludes that it is apparent from the 3 face of the petition and attachments that Petitioner received all 4 the process that was due him with respect to the re-issuance and 5 rehearing of the disciplinary charge. 6 Petitioner does not argue that the disciplinary finding was 7 unsupported by some evidence. 8 the hearing officer’s report states that he based his finding of 9 guilt on various pieces of evidence, including 1) the written Nevertheless, the Court notes that 10 reports of Correctional Officers D. Arellano and A. Mendoza, in 11 which they stated that during an unclothed search of Petitioner, 12 the two officers found on Petitioner’s person an inmate- 13 manufactured weapon measuring one-half inch in width and six 14 inches in length, with a sharpened point; and 2) photographs of 15 the weapon. 16 supported by some evidence, namely, the reports of employees with 17 personal knowledge of the pertinent events, which in turn were 18 consistent with corroborative physical evidence. 19 does not appear possible that Petitioner could allege facts 20 concerning the disciplinary proceeding that would constitute a 21 due process violation. 22 23 (Pet. 24-25.) It thus appears that the decision was Therefore, it Therefore, it will be recommended that the claim of a due process violation be dismissed without leave to amend. 24 III. 25 Petitioner argues that the forfeiture of time credits that Failure to Comply with State Law 26 he suffered was not authorized by the governing regulations. 27 Court notes that Cal. Code Regs., tit. 15, § 3323(a) and (b)(8) 28 authorize the forfeiture of up to 360 days credit for division 7 The 1 “A-1" offenses, which include possession of a deadly weapon. 2 Section 3006(a) provides that inmates may not possess or have 3 under their control any weapons. 4 3006(a). 5 Cal. Code Regs., tit. 15, § However, in any event, Petitioner’s claims concerning the 6 application of state law are not cognizable in this proceeding. 7 Federal habeas relief is available to state prisoners only to 8 correct violations of the United States Constitution, federal 9 laws, or treaties of the United States. 28 U.S.C. § 2254(a). 10 Federal habeas relief is not available to retry a state issue 11 that does not rise to the level of a federal constitutional 12 violation. 13 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). 14 errors in the application of state law are not cognizable in 15 federal habeas corpus. 16 Cir. 2002). 17 Wilson v. Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 Alleged Souch v. Schiavo, 289 F.3d 616, 623 (9th Petitioner’s claim concerning the extent of proceedings and 18 sentences authorized by the state regulatory code concerns only 19 the application of state law. 20 is no state law policy to allow amendment of the disciplinary 21 charge involves only a state matter and does not rise to the 22 level of a cognizable claim of a violation of federal due 23 process. 24 the administrative appellate process, he is complaining of 25 noncompliance with state law. 26 in federal habeas corpus. 27 28 Likewise, his complaint that there To the extent that Petitioner complains of delays in These matters are not cognizable Therefore, it will be recommended that the petition be dismissed without leave to amend. 8 1 IV. 2 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 3 appealability, an appeal may not be taken to the Court of Appeals 4 from the final order in a habeas proceeding in which the 5 detention complained of arises out of process issued by a state 6 court. 7 U.S. 322, 336 (2003). 8 only if the applicant makes a substantial showing of the denial 9 of a constitutional right. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). Under this standard, a 10 petitioner must show that reasonable jurists could debate whether 11 the petition should have been resolved in a different manner or 12 that the issues presented were adequate to deserve encouragement 13 to proceed further. 14 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 15 certificate should issue if the Petitioner shows that jurists of 16 reason would find it debatable whether the petition states a 17 valid claim of the denial of a constitutional right and that 18 jurists of reason would find it debatable whether the district 19 court was correct in any procedural ruling. 20 529 U.S. 473, 483-84 (2000). 21 conducts an overview of the claims in the habeas petition, 22 generally assesses their merits, and determines whether the 23 resolution was debatable among jurists of reason or wrong. 24 It is necessary for an applicant to show more than an absence of 25 frivolity or the existence of mere good faith; however, it is not 26 necessary for an applicant to show that the appeal will succeed. 27 Miller-El v. Cockrell, 537 U.S. at 338. 28 Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court A district court must issue or deny a certificate of 9 Id. 1 appealability when it enters a final order adverse to the 2 applicant. 3 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 4 debate whether the petition should have been resolved in a 5 different manner. 6 of the denial of a constitutional right. 7 8 9 Petitioner has not made a substantial showing Accordingly, it will be recommended that the Court decline to issue a certificate of appealability. V. Recommendation 10 Accordingly, it is RECOMMENDED that: 11 1) 12 13 14 15 16 The petition be DISMISSED without leave to amend for failure to state a claim cognizable in federal habeas corpus; and 2) The Court DECLINE to issue a certificate of appealability; and 3) The Clerk be DIRECTED to close the action because dismissal of the petition will terminate the action. 17 These findings and recommendations are submitted to the 18 United States District Court Judge assigned to the case, pursuant 19 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 20 the Local Rules of Practice for the United States District Court, 21 Eastern District of California. 22 being served with a copy, any party may file written objections 23 with the Court and serve a copy on all parties. 24 should be captioned “Objections to Magistrate Judge’s Findings 25 and Recommendations.” 26 and filed within fourteen (14) days (plus three (3) days if 27 served by mail) after service of the objections. 28 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § Within thirty (30) days after Such a document Replies to the objections shall be served 10 The Court will 1 636 (b)(1)(C). 2 objections within the specified time may waive the right to 3 appeal the District Court’s order. 4 1153 (9th Cir. 1991). The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 5 6 IT IS SO ORDERED. 7 Dated: icido3 January 27, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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