(HC) Burgess v. Rios, No. 1:2012cv00544 - Document 67 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS to Deny the 7 First Amended Petition for Writ of Habeas Corpus and to Enter Judgment for Respondent, signed by Magistrate Judge Sheila K. Oberto on 5/26/2015, referred to Judge Ishii. Objections to F&R Due Within Thirty Days. (Marrujo, C)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 COREY BURGESS, Case No. 1:12-cv-00544-AWI-SKO-HC 12 FINDINGS AND RECOMMENDATIONS TO DENY THE FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS (DOC. 7) AND TO ENTER JUDGMENT FOR RESPONDENT 13 Petitioner, v. 14 15 WARDEN HECTOR ALFONZO RIOS, OBJECTIONS DEADLINE: THIRTY (30) DAYS Respondent. 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is the first amended petition (FAP), which was filed on May 3, 2012. After some claims in the FAP were dismissed without leave to amend, Respondent filed an answer to the FAP on November 19, 2012. Petitioner filed a traverse on December 17, 2012. I. Jurisdiction over the Subject Matter and the Person of the Respondent Because the petition was filed after April 24, 1996, the 1 1 effective date of the Antiterrorism and Effective Death Penalty Act 2 of 1996 (AEDPA), the AEDPA applies to the petition. 3 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 Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Petitioner’s claims relate to alleged violations of rights suffered in connection with a prison disciplinary hearing that resulted in the loss of credits for good conduct time (GCT). A claim challenging the manner, location, or conditions of a sentence’s execution must be brought under § 2241. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). Hernandez v. A challenge to the manner in which a sentence is executed must be brought in a habeas petition pursuant to 28 U.S.C. § 2241. Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir. 1991) (concerning whether the parole commission had improperly failed to credit the prisoner’s federal sentence with time served in state custody). Thus, this Court has jurisdiction over Petitioner’s claims, which concern the execution of his sentence. A petitioner filing a petition for writ of habeas corpus under 28 U.S.C. § 2241 must file the petition in the judicial district of the petitioner's custodian. 677 (9th Cir. 1990). Brown v. United States, 610 F.2d 672, Petitioner has named as Respondent the warden of his institution of confinement at the time of the filing of his petition, an officer who is within this judicial district. Thus, the Court has subject matter jurisdiction over the petition as well as jurisdiction over the person of the Respondent. It could be argued that the petition is moot because it appears from notices of address changes filed in this action that Petitioner 2 1 has been released from custody. 2 2014, and March 27, 2015.) (Docs. 65 & 66, filed August 26, Federal courts lack jurisdiction to 3 decide cases that are moot because the courts= constitutional 4 authority extends to only actual cases or controversies. 5 Honor Society v. Heckler, 464 U.S. 67, 70-71 (1983). Iron Arrow Article III 6 requires a case or controversy in which a litigant has a personal 7 stake in the outcome of the suit throughout all stages of federal 8 judicial proceedings and has suffered some actual injury that can be 9 redressed by a favorable judicial decision. 10 Id. A petition for writ of habeas corpus becomes moot when it no 11 longer presents a case or controversy under Article III, ' 2 of the 12 Constitution. Wilson v. Terhune, 319 F.3d 477, 479 (9th Cir. 2003). 13 A petition for writ of habeas corpus is moot where a petitioner=s 14 claim for relief cannot be redressed by a favorable decision of the 15 court issuing a writ of habeas corpus. Burnett v. Lampert, 432 F.3d 16 996, 1000-01 (9th Cir. 2005) (quoting Spencer v. Kemna, 523 U.S. 1, 17 7 (1998)). Mootness is jurisdictional. See, Cole v. Oroville Union 18 High School District, 228 F.3d 1092, 1098-99 (9th Cir. 2000). Thus, 19 a moot petition must be dismissed because nothing remains before the 20 Court to be remedied. Spencer v. Kemna, 523 U.S. 1, 18. A federal 21 court has a duty to consider mootness on its own motion. Demery v. 22 Arpaio, 378 F.3d 1020, 1025 (9th Cir. 2004). 23 The passage of a release date does not render a claim regarding 24 the release date moot when the sentence includes a term of 25 supervised release. The possibility that the sentencing court might 26 use its discretion to reduce the term of supervised release under 18 27 U.S.C. § 3583(e) is sufficient to prevent the petition from being 28 moot. Tablada v. Thomas, 533 F.3d 800, 802 n.1 (9th Cir. 2008), 3 1 cert. den. 560 U.S. 964 (2010) (citing Mujahid v. Daniels, 413 F.3d 2 991, 994–995 (2005)). Here, because Petitioner’s sentence includes 3 a two-year period of supervised release (doc. 36-1, 3), Petitioner’s 4 claims are not moot. 5 II. Procedural Background 6 In the FAP filed on May 3, 2012, Petitioner alleges he is an 7 inmate of the United States Penitentiary at Atwater, California 8 (USPA), serving a sentence of seventy-seven months imposed in 9 September 2008 in the United States District Court for the Eastern 10 District of Missouri for being a felon in possession of a firearm. 11 (FAP, 1-2.) Petitioner complains of a finding, made by a 12 disciplinary hearing officer (DHO) at the Federal Correctional 13 Institution at Memphis (FCIM), that Petitioner had committed an 14 assault upon a fellow inmate on September 7, 2009. The finding 15 resulted in a loss of forty days of GCT credit, placement in the 16 secured housing unit for five months, and limitations of various 17 privileges. 18 Petitioner raised the following claims in the FAP: 1) his 19 rights under the Due Process Clause, Equal Protection Clause, Sixth 20 Amendment, Eighth Amendment, and various program statements of the 21 Federal Bureau of Prisons (BOP) were violated by the delay in his 22 receipt of the report of the DHO, which resulted in obstruction or 23 extinction of Petitioner’s right to appeal the finding; 2) his 24 rights to due process of law under the Fifth and Fourteenth 25 Amendments, and his rights under the Sixth Amendment, the Eighth 26 Amendment’s prohibition of cruel and unusual punishment, the Ninth 27 Amendment, the Thirteenth Amendment, the Fourteenth Amendment, as 28 well as “CONSPIRACY, DOUBLE PUNISHMENT, SLANDER, MALFEASANCE, FALSE 4 1 DECLARATION, DELIBERATE INDIFFERENCE, GROSS NEGLIGENCE, AND 2 DISCRIMINATION” (FAP 6) were violated by the hearing officer’s 3 finding that Petitioner committed the assault because a) there was 4 evidence contrary to the findings, and the DHO should base a 5 decision on the greater weight of the evidence, b) the findings were 6 “prejudice, bias, and impartial” (id. at 6), which appears to 7 constitute a claim of a biased DHO or disciplinary tribunal, c) 8 Petitioner was not permitted to present any evidence, d) Petitioner 9 was not permitted to amend his notice to request staff 10 representation when it was made clear to him that his full statement 11 was not submitted with a “515" or “SIS” report (id. at 7), e) his 12 request for “camera review” was not admissible, and f) his statement 13 to Lieutenant J. Phillips, an investigator, that Petitioner had been 14 in a struggle with inmate Young, was coerced; 3) Petitioner’s rights 15 to due process under the Fifth and Fourteenth Amendments, protection 16 from cruel and unusual punishment under the Eighth Amendment, and 17 protection from involuntary servitude under the Thirteenth Amendment 18 were violated by the failure to follow various program statements of 19 the BOP which require full review of the findings, keeping of 20 records of the hearing and supporting documents in central files, 21 and hearing by three staff members instead of two; 4) Petitioner’s 22 rights under the Fifth, Sixth, Eight, Ninth, Thirteenth, and 23 Fourteenth Amendments as well as “CONSPIRACY” (id. at 9) were 24 violated by a conspiracy among the investigating officer, Lieutenant 25 J. Phillips, and the warden, associate warden, Captain Phil Roberts, 26 and Lieutenant J. Elam at FCIM, when a) Petitioner was deceived by 27 Lt. Phillips’ statement that Petitioner was not being referred for 28 prosecution or being charged with an assault, b) Petitioner’s 5 1 statement was not included in a report, nor was there any mention of 2 how Young’s injuries were inflicted, how Petitioner incurred a 3 scratch on his face, or of the use of any weapon, c) various program 4 statements concerning the qualifications and certifications of 5 the investigating officer and the duty of an investigating 6 officer to provide a report, read charges, and state the reason 7 for any delay were disregarded, and d) Lieutenant S. Plunkett 8 undertook a second investigation but refused to record 9 Petitioner’s statement, and unspecified evidence was overlooked. 10 Petitioner seeks monetary relief for settlement of his claim on 11 each level of appeal; an injunction or declaration that detention in 12 the United States Prison system is arbitrary, unlawful, and 13 unconstitutional; injunctive relief against transfer, detention, 14 destruction of files, and staff interference and retaliation; and 15 surrender of all evidence related to the incident report, including 16 the full names of all staff involved; expungement of the incident 17 report and all subsequent incident reports; restoration of 18 Petitioner’s good conduct credits, all points, and his former 19 custody classification; dismissal of close supervision; and transfer 20 or release to a residential drug abuse program. (FAP at 11.) 21 On September 17, 2012, the Court dismissed many of Petitioner’s 22 claims without leave to amend, including 1) Petitioner’s claims 23 concerning conditions of confinement, including Petitioner’s 24 complaints concerning conspiracy, retaliation, slander, deliberate 25 indifference, gross negligence, discrimination, deceptive statements 26 concerning the authorities’ intentions concerning prosecution or 27 charges, and limitations on various privileges in prison; 2) 28 Petitioner’s requests for relief related to the conditions of 6 1 confinement, including monetary and injunctive relief concerning 2 staff interference and retaliation, orders concerning the possession 3 of evidence relating to the incident report, changes in Petitioner’s 4 classification points and custody classification, termination of 5 close supervision, and transfer or release to a residential drug 6 abuse program; 3) Petitioner’s claims based on violations of program 7 statements of the BOP (e.g., the failure to include Petitioner’s 8 statement in a report, a delay in Petitioner’s 9 receipt of the DHO’s report, the extent of the BOP’s review of 10 the findings, the manner in which records of the disciplinary 11 hearing were stored in the central files, the identity and 12 qualifications of the staff members who heard the violation, the 13 reading of charges, and a statement of the reasons for delay); and 14 4) Petitioner’s claims that the delay in his receipt of the report 15 of the disciplinary hearing officer (DHO) violated his rights under 16 the Equal Protection Clause and the Sixth, Eighth, Ninth, and 17 Thirteenth Amendments. (Doc. 22.) Thus, this Court addresses only 18 the remaining claims in the FAP. 19 The Court notes that Petitioner may be attempting to raise new 20 claims in the traverse, such as Petitioner’s entitlement to money 21 damages, as well as the BOP’s response in administrative appellate 22 proceedings, its replies to Petitioner’s requests pursuant to the 23 Freedom of Information Act for his central file, and its placement 24 decisions concerning Petitioner. (Doc. 41, 2-4, 15, 22.) It is 25 improper to raise substantively new issues or claims in a traverse, 26 and a court may decline to consider such matters. To raise new 27 issues, a petitioner must obtain leave to file an amended petition 28 or additional statement of grounds. 7 Cacoperdo v. Demosthenes, 37 1 F.3d 504, 507 (9th Cir. 1994), cert. den., 514 U.S. 1026 (1995). 2 The Court here has previously limited the scope of the 3 pleadings and has further declined to permit Petitioner to amend the 4 FAP. (Docs. 22, 62.) Because the new matters are beyond the scope 5 of the pleadings and are not properly before the Court, the Court 6 declines to consider any new matters set forth in the traverse. 7 III. Factual Background 8 On November 16, 2009, Officer Phillips reported that on 9 September 7, 2009, immediately after Officer Jones had heard noise 10 in a cell, Jones observed Petitioner coming from the direction of 11 the cell with a small scratch on his nose. Jones reported that the 12 inmate of the cell was found on the floor of the cell, bleeding from 13 his face. (Doc. 36-1, 7, 17.) The inmate sustained serious 14 injuries, including a large open wound above the left brow, 15 lacerations of the upper lip, and swelling of the left cheek; the 16 left eye was swollen shut, and one tooth was knocked out. The 17 inmate was transported to a hospital, where he underwent surgery for 18 an orbital floor fracture. (Id. at 7, 21-22.) Petitioner also 19 sustained abrasions to the knuckles of his hand that were 20 inconsistent with his claim of a weight having fallen on his hand 21 but consistent with a physical altercation. (Id.) At the hearing 22 held before the DHO on November 24, 2009, Petitioner maintained that 23 the injuries were sustained in a fair fight in which Petitioner was 24 fighting for his life. 25 (Id. at 6-7.) The DHO considered memoranda from Officers Elam, Jones, and 26 Garrett, who observed the pertinent events, alerted the institution, 27 and helped secure the area and perform body searches of the inmates. 28 (Doc. 36-1 at 12, 16.) The DHO considered medical reports of 8 1 injuries sustained by Petitioner and the victim, and the victim’s 2 identification of Petitioner as the person who assaulted him without 3 any provocation. (Doc. 36-1, 7-8, 12, 16.) The DHO considered 4 Petitioner’s statement and concluded it was unlikely the victim had 5 sought to fight Petitioner when the victim was unclothed in 6 preparation for a shower and unprotected, and the DHO determined 7 that the account of a fair fight was inconsistent with the physical 8 injuries. (Id. at 8.) The DHO found that the preponderance of the 9 evidence sustained the charge. The DHO’s report was rewritten on 10 February 25, 2011, to take the place of a previous report that 11 apparently was lost in handling. 12 to the inmate on March 2, 2011. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. The rewritten report was delivered (Id. at 9.) Violation of Due Process Resulting from Late Delivery of the DHO’s Report Petitioner alleges he suffered a violation of his right to due process of law from the delayed delivery of the DHO’s report, which resulted in his loss of the right of appeal. A. Legal Standards For relief to be granted under 28 U.S.C. § 2241, Petitioner must demonstrate he is "in custody in violation of the Constitution or laws or treaties of the United States." § 2241(c)(3). 28 U.S.C. “A necessary predicate for the granting of federal habeas relief [to a petitioner] is a determination by the federal court that [his or her] custody violates the Constitution, laws, or treaties of the United States." Rose v. Hodges, 423 U.S. 19, 21 (1975) (citing 28 U.S.C. § 2241). Procedural due process requires that where the government has made good time subject to forfeiture only for serious misbehavior, 9 1 prisoners subject to a loss of good-time credits must be given 2 advance written notice of the claimed violation, a right to call 3 witnesses and present documentary evidence where it would not be 4 unduly hazardous to institutional safety or correctional goals, and 5 a written statement of the finder of fact as to the evidence relied 6 upon and the reasons for disciplinary action taken. 7 McDonnell, 418 U.S. 539, 563-64 (1974). Wolff v. If the inmate is 8 illiterate, or the issue is so complex that it is unlikely that the 9 inmate will be able to collect and present the evidence necessary 10 for an adequate comprehension of the case, the inmate should also 11 have access to help from staff or a sufficiently competent inmate 12 designated by the staff. However, confrontation, cross-examination, 13 and counsel are not required. 14 Wolff, 418 U.S. at 568-70. In addition to the minimal standards of procedural due process 15 set forth above, where good time credits are a protected liberty 16 interest, the decision to revoke credits must be supported by some 17 evidence in the record. 18 (1985). 19 20 21 22 23 24 25 26 27 28 Superintendent v. Hill, 472 U.S. 445, 454 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 Athere 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). 10 1 Superintendent v. Hill, 472 U.S. at 455-56. The Constitution does 2 not require that the evidence logically preclude any conclusion 3 other than the conclusion reached by the disciplinary board; there 4 need only be some evidence to ensure there was some basis in fact 5 for the decision. 6 Superintendent v. Hill, 472 U.S. at 457. A failure to meet a prison guideline regarding a disciplinary 7 hearing does not alone constitute a denial of due process. 8 Bostic v. Carlson, 884 F.2d 1267, 1270 (9th Cir. 1989). See To 9 establish a denial of due process of law, prejudice is generally 10 required. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) 11 (proceeding pursuant to 28 U.S.C. § 2254); see also Tien v. Sisto, 12 Civ. No. 2:07 cv-02436-VAP (HC), 2010 WL 1236308, at *4 (E.D.Cal. 13 Mar. 26, 2010) (while neither the United States Supreme Court nor 14 the Ninth Circuit Court of Appeals has spoken on the issue, numerous 15 federal Courts of Appeals, as well as courts in this district, have 16 held that a prisoner must show prejudice to state a habeas claim 17 based on an alleged due process violation in a disciplinary 18 proceeding, and citing Pilgrim v. Luther, 571 F.3d 201, 206 (2d Cir. 19 2009); Howard v. United States Bureau of Prisons, 487 F.3d 808, 813 20 (10th Cir. 2007); Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir. 21 2003); Elkin v. Fauver, 969 F.2d 48, 53 (3d Cir. 1992); Poon v. 22 Carey, no. Civ. S 05 0801 JAM EFB P, 2008 WL 5381964, *5 (E.D.Cal. 23 Dec. 22, 2008); and Gonzalez v. Clark, no. 1:07 CV 0220 AWI JMD HC, 24 2008 WL 4601495, at *4 (E.D.Cal. Oct. 15, 2008)); see also Smith v. 25 United States Parole Commission, 875 F.2d 1361, 1368-69 (9th Cir. 26 1989) (requiring a petitioner in a § 2241 proceeding who challenged 27 the government’s delayed compliance with a procedural regulation 28 concerning the appointment of counsel before a record review in 11 1 parole revocation proceedings to demonstrate prejudice to be 2 entitled to habeas relief); Standlee v. Rhay, 557 F.2d 1303, 1307-08 3 (9th Cir. 1977) (the burden is on a parolee to demonstrate that 4 failure to permit a witness’s live testimony at a revocation hearing 5 was so prejudicial as to violate due process). B. 6 7 Analysis The procedural protections provided for by Wolff did not 8 include a mandatory appeal of prison disciplinary findings. Thus, 9 Petitioner has not shown that the delay in his receipt of the DHO’s 10 report violated his constitutional rights. Further, Petitioner 11 himself alleges his problem with the progress of his administrative 12 appeal was based on the failure to obtain an extension of time to 13 appeal, which was due to Petitioner’s being in transit between 14 institutions and being physically separated from his legal property. 15 (FAP, doc. 7, 4-5.) There is no showing that the timing of 16 Petitioner’s receipt of the DHO’s decision resulted in any prejudice 17 to Petitioner. 18 Accordingly, it will be recommended that Petitioner’s due 19 process claim concerning delayed receipt of a DHO decision be 20 denied. 21 V. Due Process Violation Based on the DHO’s Finding 22 Petitioner alleges he suffered a due process violation when the 23 DHO found he had committed the assault because there was some 24 evidence that supported a contrary finding, and the weight of the 25 evidence actually supported Petitioner’s innocence. 26 In determining whether some evidence of the violation supported 27 the finding, the Court does not make its own assessment of the 28 credibility of witnesses or reweigh the evidence; however, the Court 12 1 must ascertain that the evidence has some indicia of reliability 2 and, even if meager, Anot so devoid of evidence that the findings of 3 the disciplinary board were without support or otherwise arbitrary.@ 4 Cato v. Rushen, 824 F.2d 703, 704-05 (9th Cir. 1987) (quoting 5 Superintendent v. Hill, 472 U.S. 445, 457 (1985)). Evidence that 6 has been evaluated and found to constitute Asome evidence@ supportive 7 of various findings includes the report of a prison guard who saw 8 several inmates fleeing an area after an assault on another inmate 9 when no other inmates were in the area, Superintendent v. Hill, 472 10 U.S. 456-57; and the statement of a guard that the inmate had 11 admitted a theft to supplement his income, coupled with 12 corroborating evidence, Bostic v. Carlson, 884 F.2d 1267, 1270 (9th 13 Cir. 1989). 14 Here, the reports of the officers’ observations at the time of 15 the assault, the documented injuries, and the victim’s statement to 16 the investigating officer constituted some evidence to support the 17 finding that Petitioner assaulted another inmate. Accordingly, it 18 will be recommended that the Court deny Petitioner’s due process 19 claim based on the weight of the evidence. 20 VI. Biased Tribunal 21 Petitioner alleges the hearing officer was biased against him. 22 A fair trial in a fair tribunal is a basic requirement of due 23 process that applies in prison disciplinary proceedings. In re 24 Murchison, 349 U.S. 133, 136 (1955); Wolff v. McDonnell, 418 U.S. at 25 570-71. Fairness requires an absence of actual bias and of the 26 probability of unfairness. In re Murchison, 349 U.S. at 136. Bias 27 may be actual, or it may consist of the appearance of partiality in 28 the absence of actual bias. Stivers v. Pierce, 71 F.3d 732, 741 13 1 (9th Cir. 1995). A showing that the adjudicator has prejudged, or 2 reasonably appears to have prejudged, an issue is sufficient. 3 Kenneally v. Lungren, 967 F.2d 329, 333 (9th Cir. 1992). There is a 4 presumption of honesty and integrity on the part of decision makers 5 which may be overcome by evidence of a risk of actual bias or 6 prejudgment based on special facts and circumstances. Withrow v. 7 Larkin, 421 U.S. 35, 46-47, 58 (1975). 8 The mere fact that a decision maker denies relief in a given 9 case or has denied relief in the vast majority of cases does not 10 demonstrate bias. Stivers v. Pierce, 71 F.3d at 742. Unfavorable 11 judicial rulings alone are generally insufficient to demonstrate 12 bias unless they reflect such extreme favoritism or antagonism that 13 the exercise of fair judgment is precluded. 14 States, 510 U.S. 540, 555 (1994). Liteky v. United A committee of correctional 15 officers and staff, acting with the purpose of taking necessary 16 disciplinary measures to control inmate behavior within acceptable 17 limits, was sufficiently impartial to conduct disciplinary hearings 18 and impose penalties, including revocation of good time credits. 19 Wolff v. McDonnell, 418 U.S. at 570-71. 20 Here, there is no basis to conclude that the DHO had, or even 21 appeared to have, any prior involvement or improper connection with 22 Petitioner’ case. 23 prejudgment. There is no evidence of any predisposition or See 28 C.F.R. § 541.8; Clutchette v. Procunier, 497 24 F.2d 809, 820 (9th Cir. 1974), mod. 510 F.2d 613, rev'd. on other 25 grounds, Baxter v. Palmigiano, 425 U.S. 308 (1976); see also Wolff, 26 418 U.S. at 592-93 (Marshall, J., concurring). Petitioner has not 27 shown any basis for rebuttal of the presumption of fairness. 28 14 1 Accordingly, it will be recommended that the Court deny 2 Petitioner’s claim that he suffered a due process violation from a 3 biased tribunal. 4 VII. Inability to Present Evidence 5 Petitioner alleges that he was not permitted to present any 6 evidence. A. 7 8 Witnesses The right to call witnesses and to present evidence at a 9 disciplinary hearing is limited by the prison authority=s discretion 10 concerning undue hazards to institutional safety or correctional 11 goals. Wolff v. McDonnell, 418 U.S. at 563-64. The right to call 12 witnesses is circumscribed by the necessary mutual accommodation 13 between institutional needs and objectives and the provisions of the 14 Constitution that are of general application. The Supreme Court has 15 noted that a disciplinary authority may decline to allow an inmate 16 to call a witness for irrelevance, lack of necessity, or hazards 17 presented in individual cases. 18 321 (1976). Baxter v. Palmigiano, 425 U.S. 308, A prison disciplinary hearing officer's decision that 19 an inmate's request to call witnesses may properly be denied as 20 irrelevant, unnecessary, unduly prolonging the hearing, or 21 jeopardizing prison safety, is entitled to deference from the Court. 22 See, Wolff v. McDonnell, 418 U.S. at 563-64; Ponte v. Real, 471 U.S. 23 491, 497-98 (1985); Neal v. Shimoda, 131 F.3d 818, 831 (9th Cir. 24 1997); Zimmerlee v. Keeney, 831 F.2d 183, 187 (9th Cir. 1987). 25 Here, there is no showing of any denial of the qualified right 26 to present witnesses. 27 the DHO. Petitioner’s own statement was considered by Petitioner did not request witnesses. (Doc. 36-1, 12.) 28 Although Petitioner refused to sign any acknowledgments, 15 1 correctional officers signed documents indicating that Petitioner 2 was advised of his right to present witnesses on November 18, 2009, 3 six days before the DHO hearing; he not only failed to request 4 witnesses, but also affirmatively waived his right to present 5 witnesses. 6 (Id. at 6, 13-15.) Accordingly, Petitioner has not shown that any denial of due 7 process resulted from an absence of witnesses. It will thus be 8 recommended that Petitioner’s due process claim based on inability 9 to present witnesses be denied. B. 10 11 Documentary Evidence Petitioner alleges that his right to present documentary 12 evidence was denied when the DHO declined Petitioner’s request for 13 copies of videographic security records. 14 On November 19, 2009, the DHO communicated with the 15 investigating officers to determine if any video evidence had been 16 reviewed. The response indicated that due to the amount of time 17 that could be spent reviewing the tape in a particular recording 18 system, no video evidence was available, and none had been 19 considered in connection with the charges. 20 (Doc. 36-1 at 30-31.) As set forth above, there is only a qualified right or interest 21 in presenting a defense in a disciplinary proceeding. 22 418 U.S. at 556, 563-72. See Wolff, Petitioner has set forth no basis to 23 render additional protections necessary in this case. Because there 24 was no video evidence available for the DHO to consider, Petitioner 25 cannot demonstrate a denial of due process based on the DHO's 26 alleged failure to consider such video evidence. 27 Accordingly, it will be recommended that the Court deny 28 Petitioner’s due process claim based on the inability to present 16 1 documentary evidence. 2 VIII. Statement Made to Officer Philips 3 Petitioner contends his statement to investigating officer 4 Phillips was coerced as the product of deception because before 5 Petitioner made his statement, Phillips allegedly informed 6 Petitioner that he was not being referred for prosecution or being 7 charged with a 101 assault. (Doc. 7, 7-9.) Respondent does not 8 address this contention. 9 There is no showing of any action on the part of the officer or 10 any circumstance attending the investigation that would cause 11 Petitioner’s will to be overborne in making the statement. 12 Considering all the circumstances attending Petitioner’s statement 13 to Officer Phillips, Petitioner has not shown that his statement was 14 involuntary and thus a denial of due process. 15 United States, 530 U.S. 428, 434 (2000). See Dickerson v. Accordingly, it will be 16 recommended that Petitioner’s due process claim concerning an 17 involuntary statement be denied. 18 IX. Incomplete Investigation 19 Petitioner contends the investigation of the matter was 20 incomplete because Petitioner’s statement was not included, and 21 unspecified evidence was overlooked. (Doc. 7, 10.) The DHO’s 22 report of the hearing, however, clearly reflects that Petitioner’s 23 statement was considered. Petitioner’s vague and unsupported 24 assertions concerning the failure to include unspecified evidence 25 are not sufficient to warrant relief. 26 Allegations in a petition that are vague, conclusory, patently 27 frivolous or false, or palpably incredible are subject to summary 28 dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 17 1 Accordingly, it will be recommended that that Court deny 2 Petitioner’s claim concerning an incomplete investigation. 3 X. Recommendations 4 Based on the foregoing, it is RECOMMENDED that: 5 1) The petition for writ of habeas corpus be DENIED; and 6 2) Judgment be ENTERED for Respondent. 7 These findings and recommendations are submitted to the United 8 States District Court Judge assigned to the case, pursuant to the 9 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local 10 Rules of Practice for the United States District Court, Eastern 11 District of California. Within thirty (30) days after being served 12 with a copy, any party may file written objections with the Court 13 and serve a copy on all parties. Such a document should be 14 captioned AObjections to Magistrate Judge=s Findings and 15 Recommendations.@ Replies to the objections shall be served and 16 filed within fourteen (14) days (plus three (3) days if served by 17 mail) after service of the objections. The Court will then review 18 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C). 19 The parties are advised that failure to file objections within the 20 specified time may result in the waiver of rights on appeal. 21 Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing 22 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 24 IT IS SO ORDERED. 25 26 Dated: May 26, 2015 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 27 28 18
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