(HC) Orr v. Rackley, No. 2:2015cv01739 - Document 14 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 3/30/16 RECOMMENDING that petitioners application for a writ of habeas corpus be denied. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TAYLON JEROME ORR, 12 13 14 No. 2:15-cv-1739 JAM KJN P Petitioner, v. FINDINGS AND RECOMMENDATIONS RONALD RACKLEY, 15 Respondent. 16 17 18 I. Introduction Petitioner is a state prisoner, proceeding without counsel and in forma pauperis. Petitioner 19 seeks relief pursuant to 28 U.S.C. § 2254. This proceeding was referred to this court by Local 20 Rule 302 pursuant to 28 U.S.C. § 636(b)(1). For the reasons set forth below, the undersigned 21 recommends that the petition be denied. 22 II. Factual and Procedural Background 23 Petitioner does not challenge his underlying conviction, but rather challenges a 2013 24 prison disciplinary conviction for possession of a controlled substance and the resulting 120-day 25 credit loss. 26 On September 4, 2014, petitioner filed a petition for writ of habeas corpus in the 27 Sacramento County Superior Court, alleging that prison staff violated his due process rights when 28 they charged him with, and convicted him of, constructive possession of marijuana hidden 1 1 between two slices of bread located on a shelf inside of his cell, and assessed a 121-day credit 2 loss. (ECF No. 9-1 at 2.) The superior court denied the petition, finding that “the fact that 3 petitioner was the cellmate and the drugs were found in an area of shelving that was open to both 4 cellmates constitutes ‘some evidence’ that petitioner had constructive possession of the drugs. 5 For purposes of the ‘some evidence’ test, the evidence is sufficient.” (ECF No. 9-1 at 56-57.) 6 The superior court relied on In re Zepeda, 141 Cal.App.4th 1493 (2006) (upheld disciplinary 7 finding that an inmate was in possession of contraband when three razor blades were found in a 8 cup on a shelf accessible to both the inmate and his cellmate, despite inmate’s placement in the 9 cell for only a short time and claim to have no knowledge of the contraband). 10 On November 20, 2014, petitioner filed a petition for writ of habeas corpus in the 11 California Court of Appeal for the Third Appellate District, which was denied without comment 12 on November 26, 2014. (ECF No. 9-1 at 59-60, 63.) 13 The California Supreme Court denied the petition for writ of habeas corpus, without 14 comment, on April 1, 2015. (ECF No. 9-1 at 82.) 15 III. Standards for a Writ of Habeas Corpus 16 An application for a writ of habeas corpus by a person in custody under a judgment of a 17 state court can be granted only for violations of the Constitution or laws of the United States. 28 18 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or 19 application of state law. See Wilson v. Corcoran, 562 U.S. 1, 4 (2010); Estelle v. McGuire, 502 20 U.S. 62, 67-68 (1991). 21 22 Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief: 23 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - 24 25 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 26 27 28 //// 2 1 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 2 3 28 U.S.C. § 2254(d). For purposes of applying § 2254(d)(1), “clearly established federal law” consists of 4 5 holdings of the United States Supreme Court at the time of the last reasoned state court decision. 6 Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 132 S. Ct. 7 38 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 8 U.S. 362, 405-06 (2000)). Circuit court precedent “may be persuasive in determining what law is 9 clearly established and whether a state court applied that law unreasonably.” Stanley, 633 F.3d at 10 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent 11 may not be “used to refine or sharpen a general principle of Supreme Court jurisprudence into a 12 specific legal rule that th[e] [Supreme] Court has not announced.” Marshall v. Rodgers, 133 S. 13 Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (per curiam)). 14 Nor may it be used to “determine whether a particular rule of law is so widely accepted among 15 the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct. 16 Id. Further, where courts of appeals have diverged in their treatment of an issue, it cannot be said 17 that there is “clearly established Federal law” governing that issue. Carey v. Musladin, 549 U.S. 18 70, 77 (2006). 19 A state court decision is “contrary to” clearly established federal law if it applies a rule 20 contradicting a holding of the Supreme Court or reaches a result different from Supreme Court 21 precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003). 22 Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the 23 writ if the state court identifies the correct governing legal principle from the Supreme Court’s 24 decisions, but unreasonably applies that principle to the facts of the prisoner’s case. 1 Lockyer v. 25 Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 26 1 27 28 Under § 2254(d)(2), a state court decision based on a factual determination is not to be overturned on factual grounds unless it is “objectively unreasonable in light of the evidence presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004)). 3 1 (9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ simply because that 2 court concludes in its independent judgment that the relevant state-court decision applied clearly 3 established federal law erroneously or incorrectly. Rather, that application must also be 4 unreasonable.” Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 5 (2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its independent 6 review of the legal question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”). 7 “A state court’s determination that a claim lacks merit precludes federal habeas relief so long as 8 ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v. 9 Richter, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 10 Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner 11 must show that the state court’s ruling on the claim being presented in federal court was so 12 lacking in justification that there was an error well understood and comprehended in existing law 13 beyond any possibility for fairminded disagreement.” Richter,131 S. Ct. at 786-87. 14 The court looks to the last reasoned state court decision as the basis for the state court 15 judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). 16 If the last reasoned state court decision adopts or substantially incorporates the reasoning from a 17 previous state court decision, this court may consider both decisions to ascertain the reasoning of 18 the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When a 19 federal claim has been presented to a state court and the state court has denied relief, it may be 20 presumed that the state court adjudicated the claim on the merits in the absence of any indication 21 or state-law procedural principles to the contrary.” Richter, 131 S. Ct. at 784-85. This 22 presumption may be overcome by a showing “there is reason to think some other explanation for 23 the state court’s decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 24 803 (1991)). Similarly, when a state court decision on a petitioner’s claims rejects some claims 25 but does not expressly address a federal claim, a federal habeas court must presume, subject to 26 rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, 133 S. Ct. 27 1088, 1091 (2013). 28 //// 4 1 2 IV. The Clearly Established Federal Law Errors of state law do not support federal habeas relief. Estelle, 502 U.S. at 67. In the 3 context of prison disciplinary proceedings, due process requires only that there be “some 4 evidence” to support the charge. Superintendent v. Hill, 472 U.S. 445, 456, 105 S. Ct. 2768 5 (1985). Evidence susceptible to more than one logical interpretation is sufficient. See Hill, 472 6 U.S. at 457. The reviewing court must defer to prison authorities as long as “there is any 7 evidence in the record that could support the conclusion reached” by the hearing officer. Id. at 8 455-46 (emphasis added). In prison disciplinary proceedings, an inmate is not entitled to the full 9 panoply of due process rights that apply to traditional criminal cases. Wolff v. McDonnell, 418 10 U.S. 539, 556 (1974). 11 V. The State Court’s Ruling 12 Because the California Supreme Court denied the petition without comment, this court 13 “looks through” the silent denial to the last reasoned state court decision addressing the petition. 14 See Nunnemaker, 501 U.S. at 797. The superior court issued the only reasoned decision 15 adjudicating the claim; thus, the court reviews the superior court’s decision for reasonableness 16 under § 2254(d). See Bonner v. Carey, 425 F.3d 1145, 1148 n.13 (9th Cir. 2005). The superior 17 court addressed petitioner’s claims as follows: 18 19 20 21 22 23 24 25 26 27 28 The petition for writ of habeas corpus has been filed and considered. It is DENIED. Petitioner challenged a disciplinary finding that he was in constructive possession of marijuana that was found on a shelf in his cell. Petitioner claimed that he was only the cellmate of the inmate who actually possessed the drugs, which were found inside several slices of bread, and that he did not possess his cellmate’s property. The standard of review for sufficiency of the evidence in prison disciplinary hearings is the “some evidence” test. (Superintendent v. Hill (1985) 472 U.S. 445.) As long as there is a “modicum” of evidence to support the charges, the decision must be upheld. This standard is “extremely deferential, and recognizes that ‘[r]evocation of good time credits,’ while significant enough to implicate due process rights, ‘is not comparable to a criminal conviction.’ . . . Ascertaining whether the ‘some evidence’ 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 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 evidence in the record that could support the conclusion reached by the’ prison authorities.” (In re Rothwell 92008) 164 Cal. App. 4th 160, 165-166, citations omitted.) In re Zepeda (2006) 141 Cal.App.4th 1493 upheld a disciplinary finding that an inmate was in possession of contraband when three razor blades were found in a cup on a shelf accessible to both the inmate and his cellmate. This was true even though the inmate had been placed in the cell for only a short time and claimed to have no knowledge of the contraband. Zepeda cited the following list of cases involving constructive possession by cellmates: Hamilton v. O’Leary (7th Cir. 1992) 976 F.2d 341, 346 [“some evidence” standard satisfied where “six homemade weapons were found in [a cell] which was occupied by and under the control of Hamilton and his three cellmates,” and thus “there was a 25% probability that Hamilton was the owner of the weapons”]; In re Anderson (1989) 112 W[ash].2d 546 [772 P.2d 510, 512] [“The fact that there was a knife found in the cell is some evidence that any one of the four cellmates, or all four of the cellmates, either possessed the knife, placed the knife in the cell or at least knew of its presence in the cell”]’ People v. Lucky (1988) 45 Cal.3d 259, 292 [247 Cal. Rptr. 1, 753 P.2d 1052] [sufficient evidence for criminal conviction of possession of weapon in prison where “shanks” were found hidden in ceiling shaft nearest defendant’s bunk, in a relatively inaccessible area].) (Zepeda, supra, 141 Cal.App.4th at p. 1499-1500.) In light of the holding in Zepeda, the fact that petitioner was the cellmate and the drugs were found in an area of shelving that was open to both cellmates constitutes “some evidence” that petitioner had constructive possession of the drugs. For purposes of the “some evidence” test, the evidence is sufficient. 17 (ECF No. 9-1 at 56-57.) 18 VI. Discussion 19 Petitioner’s arguments concerning the elements of the crime under state law are 20 unavailing. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (federal habeas court bound by state 21 court’s interpretation of state law). The only question that is cognizable in this court is whether 22 petitioner’s credit forfeiture was supported by “some evidence” of a disciplinary violation, as Hill 23 requires. Under 28 U.S.C. § 2254, the dispositive question is whether the state court’s resolution 24 of that issue was objectively unreasonable. It was not. 25 The superior court applied Hill in reviewing the disciplinary violation, and applied it 26 correctly. The Hill standard is “minimally stringent.” Cato v. Rushen, 824 F.2d 703, 705 (9th 27 Cir. 1987). Here, the evidence that the marijuana was discovered on a lower shelf in petitioner’s 28 cell where both petitioner and his cellmate had access (ECF No. 9-1 at 22) constitutes “some 6 1 evidence” that petitioner had constructive possession of the marijuana. Due process requires 2 nothing more. 3 Finally, the record reflects that petitioner received the process due. In the prison 4 disciplinary context, due process requires that the prisoner receive: (1) written notice of the 5 charges; (2) at least 24 hours between the time the prisoner receives written notice and the time of 6 the hearing, so that the prisoner may prepare his defense; (3) a written statement by the fact 7 finders of the evidence they rely on and reasons for taking disciplinary action; (4) the right of the 8 prisoner to call witnesses and present documentary evidence in his defense, when permitting him 9 to do so would not be unduly hazardous to institutional safety or correctional goals; and (5) legal 10 assistance to the prisoner where the prisoner is illiterate or the issues presented are legally 11 complex. Wolff, 418 U.S. at 563-71. 12 Here, petitioner does not deny that he received written notice of the charges at least 24 13 hours before the disciplinary hearing, or that he received a written statement of the evidence 14 relied upon. (ECF No. 1, passim.) Petitioner was provided an opportunity to call witnesses, but 15 declined. (ECF No. 9-1 at 20.) Petitioner did not meet the criteria for assignment of a staff 16 assistant for legal assistance. (ECF No. 9-1 at 20.) Thus, petitioner received all the process he 17 was due. 18 V. Conclusion 19 20 Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas corpus be denied. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” 26 objections, he shall also address whether a certificate of appealability should issue and, if so, why 27 and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if 28 the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 7 If petitioner files 1 § 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after 2 service of the objections. The parties are advised that failure to file objections within the 3 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 4 F.2d 1153 (9th Cir. 1991). 5 Dated: March 30, 2016 6 7 8 w/orr1739.157 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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