(HC) Rone v. Rios, No. 1:2010cv00482 - Document 9 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sandra M. Snyder on 1/18/2011, Recommending That the 1 Petition for Writ of Habeas Corpus be DENIED, the Clerk ENTER Judgment for Respondent, and the Clerk CLOSE the Action; Referred to Judge O'Neill. Objections to F&R due by 2/22/2011. (Marrujo, C)
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(HC) Rone v. Rios Doc. 9 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 KEITH L. RONE, 11 Petitioner, 12 v. 13 WARDEN HECTOR RIOS, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—00482–LJO-SMS-HC FINDINGS AND RECOMMENDATIONS TO DENY THE PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) 16 17 Petitioner is a federal prisoner proceeding pro se and in 18 forma pauperis with a petition for writ of habeas corpus pursuant 19 to 28 U.S.C. § 2241. 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 21 Rules 302 and 304. 22 which was filed on March 17, 2010. The matter has been referred to the Pending before the Court is the petition, 23 I. 24 Because the petition was filed after April 24, 1996, the Jurisdiction 25 effective date of the Antiterrorism and Effective Death Penalty 26 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 27 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 28 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). Lindh 1 Dockets.Justia.com 1 Relief by way of a writ of habeas corpus extends to a 2 prisoner in custody under the authority of the United States who 3 shows that the custody violates the Constitution, laws, or 4 treaties of the United States. 5 a federal prisoner who challenges the validity or 6 constitutionality of his conviction must file a petition for writ 7 of habeas corpus pursuant to 28 U.S.C. § 2255, a federal prisoner 8 challenging the manner, location, or conditions of the execution 9 of a sentence must bring a petition for writ of habeas corpus 10 under 28 U.S.C. § 2241. 11 28 U.S.C. § 2241(c)(3). Although 864-65 (9th Cir. 2000). 12 Hernandez v. Campbell, 204 F.3d 861, Here, Petitioner alleges that he was denied due process of 13 law in connection with a prison disciplinary hearing and a 14 resulting loss of good time credits. 15 that he has been denied good time credits without due process of 16 law is a cognizable claim of being in custody in violation of the 17 Constitution pursuant to 28 U.S.C. § 2241(c)(3). 18 Superintendent v. Hill, 472 U.S. 445, 454 (1985) (determining 19 procedural due process claim concerning disciplinary procedures 20 and findings); Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 21 1989); Wilkinson v. Dotson, 544 U.S. 74, 88 (2005) (Kennedy, J., 22 dissenting). 23 loss of time credits, it affects the duration of a sentence, and 24 the violation may be remedied by way of a petition for writ of 25 habeas corpus. 26 1990). 27 28 A federal prisoner’s claim See, e.g., If a constitutional violation has resulted in the Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. Further, with respect to personal jurisdiction, 28 U.S.C. § 2241(a) provides that writs of habeas corpus may be granted by 2 1 the district courts “within their respective jurisdictions.” 2 writ of habeas corpus operates not upon the prisoner, but upon 3 the prisoner’s custodian. 4 of Kentucky, 410 U.S. 484, 494-495 (1973). 5 petition for writ of habeas corpus under 28 U.S.C. § 2241 must 6 file the petition in the judicial district of the petitioner's 7 custodian. 8 1990). 9 confined constitutes the custodian who must be named in the 10 petition, and the petition must be filed in the district of 11 confinement. 12 (2004). 13 jurisdiction of the court at the time the petition is filed; 14 transfer of the petitioner thereafter does not defeat personal 15 jurisdiction that has once been properly established. 16 Clark, 335 U.S. 188, 193 (1948), overruled on other grounds in 17 Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. at 18 193, citing Mitsuye Endo, 323 U.S. 283, 305 (1944); Francis v. 19 Rison, 894 F.2d 353, 354 (9th Cir. 1990). 20 serve the custodian deprives the Court of personal jurisdiction. 21 Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003). 22 A Braden v. 30th Judicial Circuit Court A petitioner filing a Brown v. United States, 610 F.2d 672, 677 (9th Cir. The warden of the penitentiary where a prisoner is Id.; Rumsfeld v. Padilla, 542 U.S. 426, 446-47 It is sufficient if the custodian is in the territorial Ahrens v. A failure to name and Here, Petitioner is an inmate of the United States Prison at 23 Atwater, which is located within this district. 24 Petitioner has named the warden at his institution of confinement 25 as a respondent. 26 Further, Accordingly, the Court concludes that it has subject matter 27 and in personam jurisdiction over the petition. 28 /// 3 1 2 II. 3 The Rules Governing Section 2254 Cases in the United States Screening the Petition 4 District Courts (Habeas Rules) are appropriately applied to 5 proceedings undertaken pursuant to 28 U.S.C. § 2241. 6 1(b). 7 review of each petition for writ of habeas corpus. 8 must summarily dismiss a petition "[i]f it plainly appears from 9 the petition and any attached exhibits that the petitioner is not Habeas Rule Habeas Rule 4 requires the Court to make a preliminary The Court 10 entitled to relief in the district court....” 11 O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also 12 Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). 13 2(c) requires that a petition 1) specify all grounds of relief 14 available to the Petitioner; 2) state the facts supporting each 15 ground; and 3) state the relief requested. 16 not sufficient; rather, the petition must state facts that point 17 to a real possibility of constitutional error. 18 Committee Notes, 1976 Adoption; O’Bremski v. Maass, 915 F.2d at 19 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). 20 Allegations in a petition that are vague, conclusory, or palpably 21 incredible are subject to summary dismissal. 22 Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 23 Habeas Rule 4; Habeas Rule Notice pleading is Rule 4, Advisory Hendricks v. Further, the Court may dismiss a petition for writ of habeas 24 corpus either on its own motion under Habeas Rule 4, pursuant to 25 the respondent's motion to dismiss, or after an answer to the 26 petition has been filed. 27 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 28 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 4 1 Here, Petitioner challenges on due process grounds a prison 2 disciplinary finding that he possessed, manufactured, or 3 introduced a weapon, which resulted in loss of forty-one (41) 4 days of good time credit. 5 time credit and expungement of the record of the disciplinary 6 infraction. 7 Petitioner seeks return of the lost (Pet. 4-8.) Petitioner has provided the Court with a record of the rules 8 violation report, disciplinary hearing and findings, and the 9 administrative appeals process. (Pet. 21, 15, 22, 13.) 10 The Court has reviewed the petition, which includes apparently 11 complete documentation of the disciplinary proceedings as well as 12 documentation of Petitioner’s having exhausted the administrative 13 remedies available to Petitioner within the federal prison 14 system. 15 Further, aside from Petitioner’s denial that he committed 16 the offense, there do not appear to be any disputed material 17 facts with respect to the disciplinary proceedings or the 18 evidence underlying the finding that Petitioner possessed the 19 weapon. 20 the proceedings in question and has set forth multiple arguments 21 concerning the proceedings and the evidence. 22 that further input from Petitioner or input from Respondent is 23 necessary in order to consider the petition on its merits. 24 Petitioner has provided an apparently complete record of It does not appear Accordingly, the Court will proceed to determine on the 25 merits the issues raised by Petitioner in the petition on the 26 basis of the documentary record provided by Petitioner. 27 /// 28 /// 5 1 III. 2 Facts 3 A. Procedural Summary Petitioner was accused of having possessed, manufactured, or 4 introduced a weapon on September 26, 2008, in violation of 5 offense code § 104. 6 written notice of the charge on the date of the offense, and a 7 hearing was held on October 15, 2008. 8 his rights, and Petitioner waived his right to a staff 9 representative. (Pet. 23.) Petitioner was given advance Petitioner was advised of Petitioner did not request witnesses, and he had 10 no documentary evidence to submit. 11 was innocent because he did not know the weapon was there. 12 23-24.) Petitioner did state that he (Pet. 13 A report of disciplinary hearing officer D. Lorance dated 14 November 19, 2008, reflects that the hearing officer relied on 15 the incident report and investigation as well as a photograph. 16 (Pet. 24.) 17 as charged, and he assessed ten days of disciplinary segregation 18 and forfeiture of forty-one (41) days of good conduct time 19 credits. 20 the hearing officer’s report and was advised of the findings, the 21 evidence relied upon, the reasons for the action taken, and his 22 right to appeal. 23 the hearing officer on November 19, 2008. 24 The hearing officer found that the act was committed (Pet. 23-26, 24, 3.) (Pet. 26.) Petitioner was given a copy of Petitioner received the report of (Pet. 3, 23-26.) Petitioner requested the finding be expunged. On January 25 16, 2009, Captain W. Lothrop responded by noting that Petitioner 26 had exercised his right to appeal through the administrative 27 process. 28 (Pet. 28.) On March 19, 2009, the regional director denied Petitioner 6 1 any relief from the sanctions; he noted that Petitioner had 2 submitted an undated statement from another inmate who claimed 3 that the weapon belonged to him, but the regional director 4 concluded that the statement was undated and unverified, and the 5 evidence presented to the hearing officer was sufficient to 6 support the finding. 7 (Pet. 15, 22.) Captain William Lothrop reported in June 2009 in a 8 memorandum for the record that on December 3, 2008, inmate 9 Gonzalez Montes approached Lothrop with a written statement, and 10 he verbally admitted owning the sharpened instrument stored in 11 the broom handle confiscated from Petitioner’s cell on September 12 26, 2008. (Pet. 18.) 13 On November 13, 2009, the administrator of national appeals 14 denied the appeal and adopted the hearing officer’s and regional 15 office’s decision. 16 other inmate did not take responsibility for the contraband at 17 the time of the hearing; however, in any event, Petitioner 18 remained responsible for proving that he was unaware of its 19 presence or that he lacked access to the item found because it 20 was his responsibility to keep his area free of contraband. 21 (Pet. 13.) 22 23 B. (Pet. 3.) The administrator stated that the The Evidence The hearing officer considered the incident report and 24 investigation and a photograph of a sharpened instrument 25 consisting of one rod-type weapon that was eight inches in 26 length. 27 28 (Pet. 24.) The reporting officer stated in a report that while conducting a cell search on September 26, 2008, he stepped into 7 1 cell number 222 and found a homemade weapon that was eight inches 2 in length, sharpened to a point, and located in a broom handle 3 that was in the cell, which was assigned to Petitioner and Ricky 4 Garrett. 5 investigating officer that he got the broom from another inmate 6 and had never gotten a “shot” at USP Atwater. 7 (Pet. 3, 24, 27.) Petitioner stated to the (Pet. 27, 24.) Petitioner stated at the hearing that he had gotten the 8 broom from a Mexican in cell number 113; then chow was called, 9 and they were locked down. 10 was there. 11 Petitioner did not know the weapon (Pet. 24, 3.) Petitioner relies on the statement of fellow inmate, David 12 Gonzalez Montes, which he submitted to the captain. 13 19.) 14 use to clean his cell, and then he explained why the broom was 15 never returned to him: 16 17 (Pet. 5, Gonzalez Montes stated that he gave Petitioner a broom to ... because we went on lockdown in which a weapon was found inside the broom which belonged to me David Gonzalez Montes 03528-298 therefore im (sic) willing to take responsibility for the weapon that was found inside the broom. 18 (Pet. 16, 5.) The entirely handwritten statement was undated. 19 It concluded with the name and number of inmate Gonzalez Montes, 20 which could have been intended as a signature. It then states, 21 “I declare under penalty of perjury that the foregoing is true 22 and correct.” However, it lacks a signature and date following 23 the jurat. (Pet. 19.) There is no indication that this 24 statement was before the hearing officer. (Pet. 23-26.) 25 Petitioner argues that the disciplinary finding and penalty 26 violated his right to due process of law under the Fifth 27 Amendment because they were based solely on Petitioner’s presence 28 8 1 at the location of the contraband; the affidavit of the other 2 inmate, which demonstrated Petitioner’s innocence, was wrongly 3 ignored. 4 IV. 5 Due process of law in a prison disciplinary setting is 6 satisfied when the hearing is conducted by a neutral fact finder 7 and the inmate is provided 1) advance written notice of the 8 claimed violation, 2) a right to call witnesses and present 9 documentary evidence where it would not be unduly hazardous to Legal Standards 10 institutional safety or correctional goals, and 3) a written 11 statement of the finder of fact as to the evidence relied upon 12 and the reasons for disciplinary action taken. 13 McDonnell, 418 U.S. 539, 563-64 (1974). 14 examination, and counsel are not required. 15 568-70. 16 Wolff v. Confrontation, crossWolff, 418 U.S. at Further, where a disciplinary board revokes good-time 17 credits, due process requires that the decision to revoke credits 18 must be supported by some evidence in the record. 19 v. Hill, 472 U.S. 445, 454 (1985). 20 21 22 23 24 25 26 27 28 Superintendent 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). 9 1 Superintendent v. Hill, 472 U.S. at 455-56. 2 does not require that the evidence logically preclude any 3 conclusion other than the conclusion reached by the disciplinary 4 board; rather, there need only be some evidence in order to 5 ensure that there was some basis in fact for the decision. 6 Superintendent v. Hill, 472 U.S. at 457. The Constitution 7 V. 8 With respect to the requirement that some evidence support 9 Analysis the finding that Petitioner possessed the weapon, this Court does 10 not make its own assessment of the credibility of witnesses or 11 re-weigh the evidence; however, the Court must ascertain that the 12 evidence has some indicia of reliability and, even if meager, 13 “not so devoid of evidence that the findings of the disciplinary 14 board were without support or otherwise arbitrary.” 15 Rushen, 824 F.2d 703, 704-05 (9th Cir. 1987) (quoting 16 Superintendent v. Hill, 472 U.S. 445, 457 (1985)). 17 Cato v. In Cato v. Rushen, 824 F.2d at 705, the Court found that the 18 Hill standard was not satisfied where the only evidence 19 implicating the inmate was another inmate’s statement that was 20 related to prison officials through a confidential informant who 21 had no first-hand knowledge of any relevant statements or actions 22 by the inmate being disciplined and whose polygraph results were 23 inconclusive. 24 constitute “some evidence” supportive of various findings 25 includes the report of a prison guard who saw several inmates 26 fleeing an area after an assault on another inmate when no other 27 inmates were in the area, Superintendent v. Hill, 472 U.S. 456- 28 57; the statement of a guard that the inmate had admitted a theft In contrast, evidence evaluated and found to 10 1 to supplement his income, coupled with corroborating evidence, 2 Bostic v. Carlson, 884 F.2d 1267, 1270 (9th Cir. 1989); an 3 inmate’s admission and corroborating, circumstantial evidence, 4 Crane v. Evans, 2009 WL 148273, *3 (N.D.Cal. Feb. 2, 2009); and 5 an inmate’s admission of having engaged in the violation plus an 6 officer’s report of having heard a recording of the offending 7 conversation, Dawson v. Norwood, 2010 WL 761226, *1 (C.D.Cal. 8 March 1, 2010). 9 Here, the report of the investigating officer documented the 10 officer’s discovery of the weapon in a broom handle inside 11 Petitioner’s cell and in proximity to Petitioner. 12 case may be distinguished from cases concerning discovery of 13 contraband in a common areas. 14 the broom, which contained the weapon, and Petitioner failed to 15 claim innocence or lack of knowledge at the time of the initial 16 investigation of the incident. 17 evidence from which the conclusion of the disciplinary hearing 18 officer might be deduced. 19 basis in fact for the decision. 20 perceived the weapon in the broom within Petitioner’s cell. 21 Thus, the evidence had some indicia of reliability. 22 inmate’s ownership of the broom and his statement were not 23 inconsistent with knowledge of the contraband on the part of 24 Petitioner, and they did not preclude the possibility that 25 Petitioner also had knowledgeable possession of the weapon. 26 Further, the Court notes that although Petitioner did not submit 27 the other inmate’s statement at the hearing, the statement of the 28 other inmate was considered during the appeal process. Thus, this Petitioner also admitted having This evidence constitutes some It demonstrates that there was some Further, the officer personally 11 The other 1 The Court therefore concludes that some evidence supported 2 the decision of the disciplinary authorities, and the decision 3 was not arbitrary. 4 Further, although Petitioner does not appear to claim a 5 denial of procedural due process, the Court notes that the record 6 reflects that Petitioner received adequate notice of the charges, 7 an opportunity to call witnesses and to make a statement, a 8 hearing by a neutral officer, and a statement of reasons and 9 evidence relied upon by the decision maker. 10 Accordingly, the Court concludes that Petitioner has not 11 shown that the disciplinary proceedings and finding resulted in a 12 violation of Petitioner’s rights to due process of law. 13 Petitioner has not shown by a preponderance of the evidence that 14 he is entitled to habeas corpus relief. 15 VI. 16 Accordingly, it is RECOMMENDED that: 17 1) The petition for writ of habeas corpus be DENIED; and 18 2) The Clerk ENTER judgment for Respondent; and 19 3) The Clerk CLOSE the action. 20 These findings and recommendations are submitted to the 21 United States District Court Judge assigned to the case, pursuant 22 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 23 the Local Rules of Practice for the United States District Court, 24 Eastern District of California. 25 being served with a copy, any party may file written objections 26 with the Court and serve a copy on all parties. 27 should be captioned “Objections to Magistrate Judge’s Findings 28 and Recommendations.” Recommendation Within thirty (30) days after Such a document Replies to the objections shall be served 12 1 and filed within fourteen (14) days (plus three (3) days if 2 served by mail) after service of the objections. 3 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 4 636 (b)(1)(C). 5 objections within the specified time may waive the right to 6 appeal the District Court’s order. 7 1153 (9th Cir. 1991). The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 8 9 10 IT IS SO ORDERED. Dated: icido3 January 18, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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