(HC) Randolph v. Matevousian, No. 1:2017cv00397 - Document 23 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS to Deny Petition for Writ of Habeas Corpus; FINDINGS and RECOMMENDATIONS to Deny Motion for Discovery, signed by Magistrate Judge Sheila K. Oberto on 4/23/18. Objections to F&R Due Within Thirty Days. (Marrujo, C)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DEVONNE RANDOLPH, 12 13 Petitioner, v. 14 WARDEN MATEVOUSIAN, 15 Respondent. 16 17 No. 1:17-cv-00397-LJO-SKO HC FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS CORPUS FINDINGS AND RECOMMENDATIONS TO DENY MOTION FOR DISCOVERY (Docs. 1 & 21) 18 19 Petitioner, Devonne Randolph, is a federal prisoner proceeding pro se with a petition for 20 writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner contends that his Due Process 21 Rights were violated by the United States Penitentiary, Atwater, California. In addition to his 22 petition for writ of habeas corpus, Petitioner filed a Motion for Discovery. The Court referred the 23 matter to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. 24 Having reviewed the record as a whole and applicable law, the undersigned recommends that the 25 Court deny the habeas petition and the motion for discovery. 26 27 28 1 1 I. Background 2 On December 20, 2006, the Superior Court for the District of Columbia sentenced 3 Petitioner to 798 months’ imprisonment. At all times pertinent to this case, Petitioner was 4 incarcerated at the United States Penitentiary (“USP”), Atwater, California. Petitioner is 5 6 7 currently incarcerated at USP Lewisburg, Pennsylvania. His projected release date is September 16, 2063. 8 On the morning of April 20, 2015, Officer B. Lodge conducted a random search of 9 Petitioner’s cell. In the cell, the Officer found torn pieces of paper towel soaked in an unknown 10 red substance. The paper towels were tested using a Narcotics Identification Kit (“NIK”), and 11 found to contain morphine. 12 13 14 In the incident report dated April 20, 2015, Petitioner was charged with possession of narcotics, in violation of BOP Code 113. BOP Code 113 prohibits “[p]ossession of any narcotics, 15 marijuana, drugs, alcohol, intoxicants, or related paraphernalia, not prescribed for the individual 16 by the medical staff.” 28 C.F.R. § 541.3, Table 1, Code 113. 17 18 19 20 21 22 In the incident report, Officer Lodge described the events as follows: On April 20, 2015 at approximately 10:10 AM[,] I conducted a random search of cell 129 in Unit 6A. During the search I located 2 torn piece[s] of red paper towel soaked in an unidentified substance inside the left locker inside a homemade cloth shelf hanging from the locker door which contained the personal items of [Petitioner]. The item was then tested by [Special Investigative Support (“SIS”)] Technician J. Garcia utilizing . . . the NIK test . . ., resulting in a positive detection for Morphine. 23 (Doc. 18-2 at 6.) Petitioner received a copy of this incident report on April 20, 2015. 24 SIS Technician Garcia wrote a memorandum describing the NIK test results: 25 On April 20, 2015 at approximately 11:00 AM, I tested 2 torn pieces of red paper towel with a hard construction paper-like texture, [that] appeared to be saturated with an unknown liquid, which gave a strong syrup odor. The items were found in unit 6A cell 129, located inside a homemade cloth material shelf hanging from one of the wall lockers. [Petitioner] is the sole occupant of cell 129. Small pieces of the saturated paper towel were tested with a sequence of NIK test[s] . . . 2 26 27 28 1 2 3 resulting in a positive detection for Morphine. Id. at 8. The matter was referred to the Disciplinary Hearing Officer (“DHO”). Prior to the DHO’s 4 disciplinary hearing, Petitioner was presented with and signed a Notice of Discipline Hearing 5 6 form and an Inmate Rights at Discipline Hearing form. Petitioner requested and was appointed a 7 staff representative, Case Management Coordinator (“CMC”) L. Ortiz. Prior to the hearing, 8 Petitioner informed CMC Ortiz that a cologne Petitioner purchased from the inmate commissary 9 would trigger a positive result for morphine on a NIK test. Petitioner also claimed a staff witness, 10 Lieutenant Hayes, would attest to this claim. CMC Ortiz emailed Lieutenant Hayes asking, 11 12 13 14 “[Petitioner] said you would attest to the fact the cologne he had does test for morphine?” Id. at 21. Lieutenant Hayes responded, “NEGATIVE . . . I have NEVER heard of any such thing.” Id. DHO Christopher Liwag conducted a disciplinary hearing on April 27, 2015. At the 15 hearing, Petitioner stated: “It was my rag, but I did not know there were drugs on it. I bought it 16 off the compound.” Id. at 16. 17 The DHO considered the following documentary evidence: the incident report, two 18 photos, SIS Technician Garcia’s memorandum, emails exchanged between CMC Ortiz and 19 Lieutenant Hayes, and Petitioner’s statements. Id. Although Petitioner requested Lieutenant 20 21 22 23 24 25 26 27 28 Hayes as a witness, Lieutenant Hayes did not testify because CMC Ortiz spoke with him about Petitioner’s claims prior to the hearing. The DHO concluded that Petitioner committed the code violation of which he was accused. The DHO made the following findings and conclusions: [Petitioner’s] due process rights were read and reviewed by the DHO to [Petitioner]. The DHO confirmed [Petitioner] received a copy of his Incident report, did want to call a witness, did want a staff representative, and had no documentary evidence to submit. [Petitioner] understood his due process rights, and was prepared to proceed with the disciplinary hearing. The DHO noted that the name RANDOLPH was mis-spelled in section 11 of the incident report. 3 1 2 [Petitioner] was aware of the situation. Moreover, [the] grammatical error was moot as [Petitioner] admitted to owning [a] rag laced with drugs in his single cell. 3 ... 4 The DHO finds [Petitioner] committed the prohibited act of POSSESSING NARCOTICS, which is a violation of Code 113. 5 6 7 8 9 10 11 12 13 14 15 The DHO relied upon the reporting officer’s statement, photos of the rag, support staff memo and emails that [Petitioner] was in possession of drugs in his single cell. [Petitioner] did provide an exculpatory statement and stated, “It was my rag but I did not know there were drugs on it. I bought it off the compound.” The DHO weighed this statement but deemed it less credible. [Petitioner] wanted the DHO to remake the drug using the items to see if it tested positive for drugs. The DHO informed [Petitioner] that this could not be done under the circumstances as the DHO is not a drug maker and that the DHO relied on the greater weight of the evidence when making a finding. As such the greater weight of evidence lies within the reporting officer’s statement, photos of the piece of rag that was obtained in [Petitioner’s] locker, NIK test results which tested positive for morphine. The Staff Representative was present over the telephone . . . and she stated, “I interviewed Lt. Hayes ([Petitioner’s] witness) and he does not know of any item sold in the commissary that would of tested positive for drugs.” Moreover, an email from Lt. Hayes stated he “NEVER” told [Petitioner] [ ] this allegation that the Federal Bureau of Prisons was selling cologne to inmates that would of tested positive for drugs. The DHO weighed the Staff Representative comments as incriminating. 16 17 18 19 Based upon the greater weight of the evidence, the DHO is convinced [Petitioner] committed the following act of possessing narcotics, which is a prohibited violation of Code 113. Id. at 17. 20 As punishment for violating Code 113, the DHO sanctioned Petitioner with the 21 disallowance of 41 days of good conduct time; 30 days in disciplinary segregation; 90 days loss 22 of phone privileges; 90 days loss of visitation privileges; and a $50.00 monetary fine. Id. 23 On March 20, 2017, Petitioner filed this petition for writ of habeas corpus in this Court. 24 25 26 On September 21, 2017, Petitioner filed a motion for discovery. The parties do not dispute venue, personal service, subject matter jurisdiction, or exhaustion of remedies. 27 28 4 1 2 3 II. The DHO Did Not Deny Petitioner His Due Process Rights by Rejecting Petitioner’s Request to Present Documentary Evidence. Petitioner contends that he was denied his Due Process Rights because the DHO did not 4 allow him to present documentary evidence. (Doc. 22 at 1.) Specifically, Petitioner alleges he 5 was unable to present evidence to show that the napkin contained coffee, not an illegal narcotic. 6 Id. Respondent counters that the petition should be dismissed because Petitioner’s disciplinary 7 sanctions were based on “some evidence,” which supported the DHO’s findings. (Doc. 18 at 4.) 8 A. Standard of Review 9 10 When a prison disciplinary proceeding may result in the loss of good time credits, due 11 process requires that the prisoner receive: (1) advance written notice of at least 24 hours of the 12 disciplinary charges; (2) an impartial hearing body; (3) an opportunity, when consistent with 13 institutional safety and correctional goals, to call witnesses and present documentary evidence in 14 15 his defense; and (4) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1984) 16 17 18 19 (citing Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974)). Due process also requires that a disciplinary decision be supported by “some evidence.” Id. at 455 (citing United States ex rel. Vatauer v. Comm’r of Immigration, 273 U.S. 103, 106 (1927)). 20 The Supreme Court “has recognized that a governmental decision resulting in the loss of 21 an important liberty interest violates due process if the decision is not supported by any 22 evidence.” Id. at 455 (internal citations omitted). The “some evidence” standard “is met if ‘there 23 was some evidence from which the conclusion of the administrative tribunal could be deduced.’” 24 25 Id (citing Vatauer, 273 U.S. at 106). The Court does not need to examine the entire record, 26 independently assess the credibility of witnesses, or weigh the evidence to determine whether the 27 standard is satisfied. Id. “Instead, the relevant question is whether there is any evidence in the 28 record that could support the conclusion reached by the disciplinary board.” Id. at 455-56 5 1 (internal citations omitted). Therefore, the Due Process Clause does not require the Court to “set 2 aside decisions of prison administrators that have some basis in fact.” Id. at 456. 3 B. Petitioner Was Not Denied His Due Process Rights. 4 Petitioner alleges that his Due Process Rights were violated “when the DHO refused to 5 6 allow him to present documentary evidence that would prove the paper napkin did not contain 7 meth or any type of illegal substance and was in fact coffee, sold [at] the commissary.” (Doc. 22 8 at 1.) 9 10 11 Prisoners facing disciplinary hearings have the right to call witnesses and present documentary evidence in their own defense when permitting the inmate to do so “will not be unduly hazardous to institutional safety or correctional goals.” Ponte v. Real, 471 U.S. 491, 499 12 13 14 (1985); Wolff v. McDonnell, 418 U.S. 539, 566 (1974). Nonetheless, determining an inmate's right to present witnesses and relevant documentary evidence requires the court to balance the 15 individual inmate's interest in avoiding loss of good conduct time against the institution's need to 16 keep the hearing within reasonable limits and to limit witnesses that may create a risk of reprisal 17 or undermine authority. Wolff, 418 U.S. at 566. 18 19 Petitioner requested that the DHO “remake the drug using the items to see if it tested positive for drugs.” (Doc. 18-2 at17.) The DHO refused because “the DHO is not a drug maker.” 20 21 Id. Although inmates have a right to present documentary evidence, the Court “should not be too 22 ready to exercise oversight and put aside the judgment of prison administrators.” Wolff, 418 U.S. 23 at 566. The Court must “balance the inmate’s interest in avoiding loss of good time against the 24 needs of the prison, and some amount of flexibility and accommodation is required. Prison 25 officials must have the necessary discretion to keep the hearing within reasonable limits.” Id. 26 Here, the decision not to “remake the drug” to confirm the NIK test was in the DHO’s discretion 27 to maintain “reasonable limits” on the scope of the hearing. 28 6 1 Further, Petitioner’s Due Process Rights were not violated as the DHO supported his 2 findings with “some evidence.” A review of the record reveals there was evidence to support the 3 charges. The towel was found during a random search of Petitioner’s cell in Petitioner’s locker. 4 When tested, the towel came back positive for morphine. Although Petitioner tried to present 5 6 evidence that cologne could test positive for morphine, Petitioner’s proposed witness denied the 7 claim. This evidence constitutes at least “some evidence” supporting the guilty finding. Because 8 the “some evidence” standard was met in this case, the Court recommends dismissing Petitioner’s 9 claim. 10 11 12 13 14 15 III. Racial Discrimination Claims Are Not Cognizable Pursuant to 28 U.S.C. § 2241. Petitioner alleges that his Due Process rights were violated at USP Atwater as prison officers used NIK tests to “deliberately create false positives” and used write-ups “in a racial[ly] discriminatory manner.” (Doc. 1 at 3.) Petitioner claims prison officers used NIK tests to convict black, but not white, prisoners of narcotics possession charges. Id. 16 As the Court previously instructed Petitioner, challenges to the conditions of federal 17 prison life are properly brought in a civil rights action under 42 U.S.C. § 1983 or in a Bivens 18 19 action. McCarthy v. Bronson, 500 U.S. 136, 142 (1991). A federal petition for writ of habeas corpus concerns whether a petitioner is in custody in violation of the Constitution. 28 U.S.C. § 20 21 2241. "Habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or 22 duration of his confinement and seeks immediate or speedier release, even though such a claim 23 may come within the literal terms of § 1983." Preiser v. Rodriguez, 411 U.S. 475, 488-89 (1973); 24 see also Nettles v. Grounds, 788 F.3d 992, 1004 (9th Cir. 2015). 25 26 Petitioner’s allegation of racial discrimination involves the conditions of his confinement, so he cannot proceed on this claim through a writ of habeas corpus. Instead, Petitioner must 27 pursue this claim through a Bivens action. Bivens v. Six Unknown Named Agents of Federal 28 7 1 Bureau of Narcotics, 408 U.S. 388 (1971) (The United State Supreme Court established a federal 2 counterpart to a 42 U.S.C. § 1983 action and established the right to sue a federal employee for a 3 civil rights action.) Therefore, the Court recommends dismissing Petitioner’s claim for racial 4 discrimination without prejudice to allow Petitioner to re-file this claim pursuant to Bivens. 5 6 7 IV. Motion for Discovery Petitioner filed a motion for discovery seeking “limited discovery” on evidence possessed 8 by the Respondent Warden that will establish the allegations contained in the” petition for writ of 9 habeas corpus. (Doc. 21 at 3.) 10 11 A. Standard of Review “Habeas petitioners are not routinely entitled to discovery.” Bracy v. Gramley, 520 U.S. 12 13 14 899, 904 (1997). The discovery provisions of the Federal Rules of Civil Procedure do not generally apply in habeas cases. Harris v. Nelson, 394 U.S. 286, 295 (1969). “A judge may, for 15 good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure 16 and may limit the extent of discovery.” See Rule 6(a) of the Rules Governing § 2254 Cases. 17 18 19 B. Petitioner Is Not Entitled to Discovery Petitioner requests discovery to prove that he was unable to present exculpatory evidence at his DHO hearing. Notwithstanding the fact that the Court has determined that Petitioner was 20 21 22 not entitled to present this evidence at the hearing, the Court will address Petitioner’s motion. Petitioner specifically requests discovery of “documents, e-mails, and NIK test[s] 23 performed in December 2016 and concluded in January 2017.” 24 “Virginia federal public defenders[’] office sent pieces of paper to inmates at USP Atwater that 25 the NIK test falsely created positive test [results] for meth.” (Doc. 21 at 1-2.) Petitioner notes 26 Petitioner alleges that the that charges for three inmates were dismissed based on false positive NIK test results. Id. at 2. 27 28 8 Petitioner’s violation for drug possession occurred on April 20, 2015. 1 Petitioner is 2 requesting documentary evidence from December 2016 to January 2017—approximately 1 year 3 and 7 months after Petitioner’s violation. The Court cannot conclude that there is good cause to 4 allow Petitioner discovery of evidence that does not apply to his case. Therefore, the Court 5 6 7 recommends denying Petitioner’s motion for discovery. V. Evidentiary Hearing Petitioner requests the Court hold an evidentiary hearing. In habeas proceedings, "an 8 9 evidentiary hearing is not required on issues that can be resolved by reference to the state court 10 record." Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998). "It is axiomatic that when issues 11 can be resolved with reference to the state court record, an evidentiary hearing becomes nothing 12 13 14 15 16 more than a futile exercise." Id. at 1176. Here, all of Petitioner's claims can be resolved by reference to the state court record. Accordingly, the Court recommends denying Petitioner’s request for an evidentiary hearing. VI. Certificate of Appealability 17 A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a 18 district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. 19 Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a 20 certificate of appealability is 28 U.S.C. § 2253, which provides: 21 22 23 24 25 26 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. 27 28 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— 9 1 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or 2 3 (B) the final order in a proceeding under section 2255. (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. 4 5 6 (3) The certificate of appealability under paragraph (1) shall indicate which specific issues or issues satisfy the showing required by paragraph (2). 7 8 If a court denies a habeas petition, the court may only issue a certificate of appealability 9 10 "if jurists of reason could disagree with the district court's resolution of his constitutional claims 11 or that jurists could conclude the issues presented are adequate to deserve encouragement to 12 proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). 13 Although the petitioner is not required to prove the merits of his case, he must demonstrate 14 15 "something more than the absence of frivolity or the existence of mere good faith on his . . . part." Miller-El, 537 U.S. at 338. 16 Reasonable jurists would not find the Court's determination that Petitioner is not entitled 17 18 to federal habeas corpus relief to be debatable or wrong, or conclude that the issues presented 19 required further adjudication. Accordingly, the Court recommends declining to issue a certificate 20 of appealability. 21 VII. 22 Conclusion and Recommendation Based on the foregoing, the undersigned recommends: the Court 23 (1) deny Petitioner’s discovery and insufficient evidence claims with prejudice and 24 decline to issue a certificate of appealability; 25 26 (2) deny Petitioner’s racial discrimination claim without prejudice; and 27 (3) deny Petitioner’s motion for discovery. 28 // 10 1 These Findings and Recommendations will be submitted to the United States District 2 Judge assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty 3 4 (30) days after being served with these Findings and Recommendations, either party may file written objections with the Court. The document should be captioned AObjections to Magistrate 5 6 Judge=s Findings and Recommendations.@ Replies to the objections, if any, shall be served and 7 filed within fourteen (14) days after service of the objections. The parties are advised that failure 8 to file objections within the specified time may constitute waiver of the right to appeal the District 9 Court's order. 10 Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 11 12 13 14 15 IT IS SO ORDERED. Dated: April 23, 2018 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 11 .