Tien v. Sisto et al
Filing
10
ORDER signed by District Judge Virginia A. Phillips on 3/25/10 ORDERING the Petition for Writ of Habeas Corpus is DENIED. (Becknal, R)
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1 2 3 4 5 6 7 8 9 10 JOHNNY S. TIEN, 11 Petitioner, 12 v. 13 D.K. SISTO, Warden, 14 Respondent. 15 ________________________ 16 17 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS FILED BY A STATE PRISONER [Petition filed on November 13, 2007] Case No. 2:07-cv-02436-VAP (HC) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
I. BACKGROUND Petitioner Johnny S. Tien is a state prisoner
18 proceeding in pro se in a habeas corpus action filed 19 pursuant to 28 U.S.C. § 2254. The petition was filed on
20 November 13, 2007 and Respondent filed an Answer on 21 February 8, 2008. On January 5, 2009, the action was
22 transferred to this Court pursuant to an Order of 23 Designation of Judge to Serve in Another District within 24 the Ninth Circuit. 25 26 For the reasons stated below, the Court DENIES the
27 Petition. 28
1 A. 2
Statement of Facts Petitioner was convicted of attempted murder and
3 sentenced to a ten year term of imprisonment on February 4 7, 2001. His petition does not challenge the propriety
5 of his conviction or sentence, but rather a March 7, 2006 6 disciplinary action taken by authorities at the 7 California State Prison, Solano. 8 9 On January 25, 2006, a cell occupied by Petitioner
10 and another inmate was searched by a prison correctional 11 officer. (Ans., Ex. 2 ("Rules Violation Report" or "CDC The officer found several items hidden
12 115") at 1.)
13 inside a Sony alarm clock radio engraved as belonging to 14 Tien, including $100 in currency, and 2 plastic "bindles" 15 containing a green leafy substance. (Id.) A subsequent
16 laboratory analysis determined that the substance was 17 marijuana. 18 19 On January 26, 2006, Tien signed a form indicating (Id.)
20 that he understood he was being charged with the 21 unauthorized possession of a controlled substance, and 22 that he was refusing to accept the results of a field 23 test, and thus a hearing would be scheduled after a 24 laboratory analysis was completed. 25 that same day, (Ans., Ex. 3.) On
he also signed an acknowledgment that he
26 had been warned of his Miranda rights, and that he did 27 28
2
1 not wish to comment or answer any questions relating to 2 the charges. 3 4 The records of the Department of Corrections indicate (Ans., Ex. 4.)
5 that Petitioner was given a copy of a "Rules Violations 6 Report," a "Toxicology Report," and an "Incident Report" 7 on February 27, 2006. (Ans., Ex. 2 at 1.) Petitioner
8 contends, though, that the Toxicology Report and Incident 9 Reports he was given related to a different incident, 10 involving an inmate named "Hunyh," and were dated October 11 2005. (Pet. at 3.) He has produced these Reports.
12 (Pet., Ex. 2-D.) 13 14 A hearing was held on March 5, 2006, at which
15 Petitioner maintained that he had purchased the radio 16 from another inmate and later had it engraved with his 17 name, but had no knowledge that there was any money or 18 drugs inside the radio. (Ans., Ex. 2 at 2.) The hearing
19 officer found that the evidence presented substantiated 20 the charge of possession of a controlled substance by a 21 preponderance of the evidence. (Id.) In addition to the
22 physical evidence and the toxicology report, the hearing 23 officer found Petitioner's explanation of his lack of 24 knowledge of the contents of the radio not credible, as 25 it was "unlikely that another [inmate] would have sold 26 him a radio for $15.00 when there was [] $100.00 and 27 drugs in it." (Id.) 28
3
As a penalty for the violation, the
1 hearing officer sentenced Petitioner to a forfeiture of 2 130 days of work credit and a short-term loss of certain 3 visiting and yard privileges, and imposed certain 4 substance abuse-related conditions. 5 6 A copy of an updated Rules Violation Report, was given to (Id. at 3.)
7 reflecting the hearing officer's decision, 8 Petitioner on March 17, 2006.
(Id. at 1, 2, 3.)
9 Petitioner claims it was at this point that he first 10 discovered that the Incident Report provided to him on 11 February 27, 2006, before the hearing, related to inmate 12 Huynh, and not him. (Pet. at 4, Ex. 2-F.) Petitioner
13 also discovered that the "log number for the [Hyunh] 14 crime incident report" had been "deliberate[ly] scratched 15 out." (Pet. at 5.) He also noted a typo on page 2 of the
16 Rules Violation Report, which referred to "(20 plastic 17 bindles" as opposed to "(2) plastic bindles," as 18 referenced elsewhere in the report, as well as 19 discrepancies in the weight of the marijuana seized. 20 (Pet. at 5, Ans. Ex. 2 at 1, 2.) 21 22 Petitioner sought a second level review, in which he
23 raised the issue that he had been given the wrong 24 Incident Report for the first time. (Pet. Ex. 2-F.) On
25 April 17, 2006, the reviewer rejected Petitioner's 26 request for review, noting: 27 28
4
The appellant made no mention of his alleged issuance of the wrong CDC Form 837,
1 2 3 4 5 6 7
Crime/Incident Report at his disciplinary hearing. The appellant's central file reflects the correct CDC Form 837, Crime/Incident Report was attached to the RVR filed in his central file. It is more likely, that the appellant obtained another's CDC Form 837, Crime/Incident Report while out on the yard mingling with the other inmates. It would have been incumbent upon the appellant to mention that he had the wrong CDC Form 837, Crime/Incident Report and was therefore not ready to commence with his hearing, but he did not make this claim. Although the
8 (Ans. Ex. 5; see also Pet. at 6.)
9 Second Level Appeal Response generally accurately 10 describes Petitioner's offense as involving 11 marijuana, at one point, the Response erroneously 12 refers to heroin. 13 14 Petitioner then filed a Director's Level Appeal, (Ans., Ex. 5.) (Pet., Ex. 2-G at 2.)
15 which was denied on July 24, 2006.
16 See Brodheim v. Cry, 584 F.3d 1262, 1264-65 (9th Cir. 17 2009) (discussing administrative appeal process). 18 The Director noted that Petitioner "failed to 19 delineate any infromation that should have been 20 available to him but was not provided to him prior to 21 his disciplinary hearing," and that the evidence
22 before the hearing officer was sufficient to 23 substantiate the charges against Petitioner to 24 preponderance of the evidence. 25 26 27 28
5
a
(Id.)
1 B. 2
Procedural History After exhausting his administrative appeals,
3 Petitioner filed a petition for writ of habeas corpus 4 in the California Superior Court for Solano County on 5 January 9, 2007, alleging that he was provided the 6 incorrect incident report and thus denied due 7 process. That petition was denied by a detailed (Ans., Ex. 7,
8 written order on January 24, 2007. 9 ("Super. Ct. Op.").) 10 11
Petitioner subsequently filed a habeas petition
12 in the California Court of Appeal, First Appellate 13 District, which was summarily denied on February 21, 14 2007. (Ans., Ex. 9.) On March 13, 2007, Petitioner
15 filed a habeas petition in the California Supreme 16 Court, which was summarily denied on April 18, 2007. 17 (Ans. Ex. 10.) 18 19 C. 20 Petitioner's Claim Petitioner filed this petition on November 13,
21 2007, and asserts that the disciplinary action taken 22 against him violated his due process rights under the 23 United States Constitution because he was provided 24 with the incorrect Incident Report and Toxicology 25 Report prior to his hearing. 26 27 28
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1 2
II. LEGAL STANDARD The Antiterrorism and Effective Death Penalty
3 Act of 1996 ("AEDPA") governs the Court's review of 4 this Petition, as the Petition was filed after 5 AEDPA's effective date. Under 28 U.S.C. § 2254(a),
6 "a district court shall entertain an application for 7 a writ of habeas corpus in behalf of a person in 8 custody pursuant to the judgment of a State court 9 only on the ground that he is in custody in violation 10 of the Constitution or laws or treaties of the United 11 States." 12 13 When considering a properly exhausted claim
14 under AEDPA, a federal court must defer to a state 15 court's holding unless it "'was contrary to, or 16 involved an unreasonable application of, clearly 17 established Federal law, as determined by the Supreme 18 Court of the United States,' or if the state court 19 decision 'was based on an unreasonable determination 20 of the facts in light of the evidence presented in 21 the State court proceeding.'" Smith v. Curry, 580
22 F.3d 1071, 1079 (9th Cir. 2009), quoting 28 U.S.C. §§ 23 2254(d)(1)-(2). 24 25 "Clearly established Federal law" is defined as
26 "the governing legal principle or principles set 27 forth by the Supreme Court at the time the state 28
7
1 court renders its decision."
Curry, quoting Lockyer "[I]t is not
2 v. Andrade, 538 U.S. 63, 71-72 (2003).
3 'an unreasonable application of clearly established 4 Federal law' for a state court to decline to apply a
5 specific legal rule that has not been squarely 6 established by [the Supreme] Court." Knowles v.
7 Mirzayance, --- U.S. ---, 129 S. Ct. 1411, 1419 8 (2009). However, "the Supreme Court need not have
9 addressed an identical fact pattern to qualify as 10 clearly established law, as 'even a general standard 11 may be applied in an unreasonable manner.'" Jones v.
12 Ryan, 583 F.3d 626, 635 (9th Cir. 2009), quoting 13 Panetti v. Quarterman, 551 U.S. 930, 953 (2007). 14 15 III. DISCUSSION
16 The Supreme Court has held that inmates are entitled 17 to procedural due process protections in disciplinary 18 hearings that could result in the forfeiture of an 19 inmate's good-time credits. Wolff v. McDonnell, 418
20 U.S. 539 (1974), discussed in Neal v. Shimoda, 131 21 F.3d 818, 830 (9th Cir. 1997). These minimum
22 requirements include "advance written notice of the 23 claimed violation and a written statement of the 24 factfinders as to the evidence relied upon and the 25 reasons for the disciplinary action taken." Wolff,
26 418 U.S. at 563, quoted in Neal, 131 F.3d at 830. 27 28
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1
Applying this standard, the Superior Court
2 rejected Petitioner's argument that the provision of 3 an incorrect incident report violated due process on 4 two alternate grounds.1 The Superior Court noted
5 that, even if as Petitioner alleges, he was given the 6 incorrect "Incident Report" and "Rules Violation 7 Report," it is undisputed that he was given the 8 correct "Rules Violation Report" prior to his 9 hearing. The Rules Violation Report contained the
10 full statement of the correctional officer who 11 searched Petitioner's cell and discovered the 12 contraband, discussed the toxicology report 13 identifying the discovered substance to be marijuana, 14 and provided a chain of custody for all physical 15 evidence. 16 17 The purpose of the advance written noptice (Super. Ct. Op. at 2.)
18 requirement is to " inform [a prisoner] of the 19 charges and to enable him to marshal the facts and 20 prepare a defense." Wolff, 418 U.S. 539 at 564.
21 The detailed Rules Violation Report clearly achieved 22 this goal here, as Petitioner directly addressed the 23 charges against him and offered an explanation as to 24 how he came into possession of the contraband. 25 26 "When reviewing a state court's summary denial of a habeas petition, we "look through" the summary 27 disposition to the last reasoned state court decision." 28 Richter v. Hickman, 578 F.3d 944, 951 (9th Cir. 2009).
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1
1 2 Although the hearing officer found Petitioner's 3 explanation not credible, that this explanation was 4 offered shows that Petitioner was on notice of the 5 charges against him. Thus, the Superior Court's
6 determination that the Rules Violation Report 7 independently met the Wolff standard was not an 8 unreasonable application of clearly established law. 9 10 As an alternative basis for rejecting the
11 petition, the Superior Court also determined that 12 Petitioner failed to demonstrate any prejudice 13 resulting from receiving the wrong report. (Super.
14 Ct. Op. at 2, citing Chapman v. California, 386 U.S. 15 18, 24 (1967).) If Petitioner's version of events
16 are to be believed, he did not even review the 17 incident and toxicology reports he was given prior to 18 the hearing. The Hyunh Reports clearly state the
19 name "Hyunh" in over a dozen places, and each page is 20 dated months prior to Petitioner's infraction. 21 if Petitioner was denied access to the correct 22 reports, though, there is no indication that the 23 correct incident and toxicology reports were 24 exculpatory in any way, nor that they contained 25 materially different information from the Rules 26 Violation Report. 27 28
10
Even
The Superior Court's determination
1 that the production of different documents would not 2 "have led to a more favorable outcome at the 3 disciplinary hearing," Super. Ct. Op. at 2-3, is thus 4 not objectively unreasonable. While neither the
5 United States Supreme Court or the Ninth Circuit 6 Court of Appeals has spoken on the issue, numerous 7 federal Courts of Appeals, as well as courts in this 8 district, have held that a prisoner must show 9 prejudice to state a habeas claim based on an alleged 10 due process violation in a disciplinary proceeding. 11 See, e.g., Pilgrim v. Luther, 571 F.3d 201, 206 (2d 12 Cir. 2009); Howard v. United States Bureau of 13 Prisons, 487 F.3d 808, 813 (10th Cir. 2007); Piggie 14 v. Cotton, 342 F.3d 660, 666 (7th Cir. 2003); Elkin 15 v. Fauver, 969 F.2d 48, 53 (3d Cir. 1992); Poon v. 16 Carey, No. Civ. S-05-0801 JAM EFB P, 2008 WL 5381964, 17 at *5 (E.D. Cal. Dec. 22, 2008); Gonzalez v. Clark, 18 No. 1:07-CV-0220 AWI JMD HC, 2008 WL 4601495, at *4 19 (E.D. Cal. Oct. 15, 2008). Thus the Superior Court's
20 determination that Petitioner's claim fails due to 21 his failure to demonstrate prejudice was not an 22 unreasonable application of clearly-established 23 federal law. 24 25 26 27 28
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1 2
IV.
CONCLUSION
For the foregoing reasons, the Petition for Writ
3 of Habeas Corpus is DENIED. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Dated: March 25, 2010 VIRGINIA A. PHILLIPS United States District Judge
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