(HC) Ramos v. Lemon, No. 1:2023cv01707 - Document 5 (E.D. Cal. 2023)
Court Description: ORDER Directing Clerk of Court to Assign District Judge; FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Sheila K. Oberto on 12/18/2023. Referred to Judge NODJ; Objections to F&R due within Twenty-One Days. (Flores, E)
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(HC) Ramos v. Lemon Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GAVINO RAMOS, 12 Petitioner, 13 14 Case No. 1:23-cv-01707-SKO (HC) ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE v. FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS TRISTAN LEMON, et al., 15 Respondents. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. He is currently in custody of the California Department of 19 Corrections and Rehabilitation (“CDCR”) at Pleasant Valley State Prison in Coalinga, 20 California. He challenges a prison disciplinary hearing in which he was found guilty of 21 possessing alcohol. He claims the charges were manufactured and that the reporting officers 22 falsely represented that they found alcohol in Petitioner’s cell. After conducting a preliminary 23 review of the petition, the Court finds that Petitioner fails to present a prima facie claim for relief 24 and will recommend the petition be DISMISSED. 25 I. PRELIMINARY REVIEW OF PETITION 26 Habeas corpus petitions are subject to summary dismissal pursuant to Rule 4 of the Rules 27 Governing Section 2254 Cases in the United States District Courts. The provisions of Rule 4 28 provide in pertinent part: “If it plainly appears from the petition and any attached exhibits that 1 Dockets.Justia.com 1 the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and 2 direct the clerk to notify the petitioner.” The Advisory Committee Notes to Rule 8 indicate that 3 the Court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4 4, pursuant to the respondent’s motion to dismiss, or after an answer to the petition has been 5 filed. 6 II. BACKGROUND1 7 On March 2, 2022, at approximately 10:00 a.m., Officer A. Moreno was conducting 8 random cell searches in Building 4. As Officer Moreno approached Petitioner’s cell, he smelled 9 a pungent odor coming from Petitioner’s cell. He instructed the control booth officer to open the 10 cell door. As the cell door opened, Officer Moreno smelled a stronger odor of alcohol coming 11 from the cell. The cell was vacant at the time due to Petitioner being on the yard. As Moreno 12 conducted the search, he discovered a clear large institutional trash bag on the floor underneath 13 the desk seat. Moreno pulled the bag out and observed approximately 5 gallons of an 14 orange/yellow pulpy liquid substance suspected of being inmate-manufactured alcohol. Moreno 15 confiscated the trash bag containing the liquid substance and notified Program Sergeant T. 16 Ramos of his findings. Sergeant Ramos verified that the liquid substance was inmate17 manufactured alcohol. On March 11, 2022, Petitioner was served with a Rules Violation Report for possession 18 19 of alcohol. (Doc. 1 at 59.) On March 15, 2022, a Disciplinary Hearing was conducted. (Doc. 1 20 at 59.) Based upon the preponderance of evidence, Petitioner was found guilty as charged and 21 assessed a loss of 120 days of time credits. (Doc. 1 at 66-67.) The Disciplinary Hearing was 22 reheard on May 10, 2022, after the Chief Disciplinary Officer reviewed the hearing report and 23 determined a due process violation had occurred. (Doc. 1 at 74.) Petitioner was again found 24 guilty as charged based upon a preponderance of evidence and assessed a loss of 120 days of 25 time credits. (Doc. 1 at 78-80.) Petitioner sought administrative relief to no avail. On November 10, 2022, Petitioner 26 27 1 The factual background is derived from the Rules Violation Report included with Petitioner’s petition. 28 (Doc. 1 at 54.) 2 1 filed a petition for writ of habeas corpus in the Fresno County Superior Court. (Doc. 1 at 21.) On 2 February 24, 2023, the petition was denied in a reasoned decision. (Doc. 1 at 21-27.) On April 3 11, 2023, Petitioner filed a habeas petition in the Fifth District Court of Appeal. (Doc. 1 at 28.) 4 The petition was summarily denied on April 20, 2023. (Doc. 1 at 28.) On May 30, 2023, 5 Petitioner filed a habeas petition in the California Supreme Court. (Doc. 1 at 15.) On September 6 13, 2023, the petition was summarily denied. (Doc. 1 at 12.) 7 On December 11, 2023, Petitioner filed the instant federal petition for writ of habeas 8 corpus. (Doc. 1.) 9 III. DISCUSSION 10 A. Legal Standard for Due Process in Prison Disciplinary Hearings 11 Under the Fourteenth Amendment, no state shall deprive any person of life, liberty, or 12 property without due process of law. Prisoners retain their right to due process subject to the 13 restrictions imposed by the nature of the penal system. Wolff v. McDonnell, 418 U.S. 539, 556 14 (1974). A prisoner in a prison disciplinary hearing is not entitled to the full array of due process 15 rights that a defendant possesses in a criminal prosecution. Id. at 556. However, a prisoner who 16 is accused of serious rules violations and who may be deprived of his or her good-time credits is 17 entitled to certain minimum procedural protections. Id. at 571-71 n. 9. Nevertheless, a 18 prisoner’s due process rights are moderated by the “legitimate institutional needs” of a prison. 19 Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (citing Superintendent, Mass. Corr. Inst. 20 v. Hill, 472 U.S. 445, 454-455 (1984)). 21 The process due in such a prison disciplinary hearing includes: (1) written notification of 22 the charges; (2) at least a brief period of time after the notice to prepare for the hearing; (3) a 23 written statement by the fact-finders as to the evidence relied on and reasons for the disciplinary 24 action; and (4) the inmate facing the charges should be allowed to call witnesses and present 25 documentary evidence in his defense when permitting him to do so will not be unduly hazardous 26 to institutional safety or correctional goals. Wolff, 418 U.S. at 564, 566, 570. 27 In addition, a decision to revoke an inmate’s good-time credit does not comport with 28 minimum procedural due process requirements unless its underlying findings are supported by 3 1 “some evidence.” Hill, 472 U.S. at 454. In reviewing a decision for “some evidence,” courts 2 “are not required to conduct an examination of the entire record, independently assess witness 3 credibility, or weigh the evidence, but only determine whether the prison disciplinary board’s 4 decision to revoke good time credits has some factual basis.” Id. at 455-56. The Ninth Circuit 5 has further held that there must be “some indicia of reliability of the information that forms the 6 basis for prison disciplinary actions.” Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987) 7 (uncorroborated hearsay statement of confidential informant with no firsthand knowledge is not 8 enough evidence to meet Hill standard.) 9 10 B. Review of Claims Petitioner does not contend that his procedural due process rights were violated, and upon 11 review of the Rules Violation Report, it is clear all due process requirements were met. 12 Petitioner received written notice of the charges when he was served with the Rules Violation 13 Report. (Doc. 1 at 74.) There was a sufficient period of time from the date Petitioner was served 14 with the Rules Violation Report to the date of the hearing--April 14, 2022, to May 10, 2022--to 15 prepare for his defense. (Doc. 1 at 74.) Petitioner was issued a written copy of the disciplinary 16 hearing report which contained the evidence relied on and the reasons for the disciplinary action. 17 (Doc. 1 at 74-84.) Finally, Petitioner was permitted and did in fact ask questions of witnesses. 18 (Doc. 1 at 77-78.) 19 Petitioner contends that the evidence was insufficient to find him guilty. He contends the 20 charges were fabricated by the reporting officers. In reviewing the claim, the state court 21 determined that “some evidence” supported the guilty finding. (Doc. 1 at 24-25.) Per 22 Superintendent v. Hill, 472 U.S. at 454, the state court applied the correct standard of “some 23 evidence.” The only question for this Court is whether that determination was unreasonable. 24 A review of the record reveals that the state court’s determination was not unreasonable. 25 The senior hearing officer considered the reports of Officer A. Moreno and Sergeant T. Ramos. 26 According to the reports, Officer Moreno found a bag of pungent liquid substance in Petitioner’s 27 cell. The liquid substance was verified by Sergeant Ramos as inmate-manufactured alcohol. 28 Officer Moreno and Sergeant Ramos were present at the disciplinary hearing. The senior 4 1 hearing officer questioned Moreno at the hearing and Moreno confirmed that he discovered 2 alcohol in Petitioner’s cell. This constitutes at least “some evidence” to support the guilty 3 finding. 4 Petitioner attempts to show that Officer Moreno and Sergeant Ramos fabricated the event 5 by claiming he was actually in his cell during the time of the search, whereas the report stated 6 Petitioner was out of the cell. Petitioner attempts to prove this point by claiming there were 7 inconsistencies in the various reports and statements. He notes that Officer Moreno stated that 8 Petitioner’s cell was vacant due to Petitioner being on the recreational yard. (Doc. 1 at 7.) He 9 then points to the Investigative Employee’s statement: “It should be noted [Petitioner] was 10 confined to his quarters on the day of the incident but given out of cell time as the search was 11 being conducted. [Petitioner] was released from being confined to quarters on March 8, 2022, 12 and had ample time to mount a defense in his RVR.” (Doc. 1 at 7, 61.) Petitioner contends that 13 this shows Moreno lied in stating he was not in his cell. There is no support for this argument as 14 there is no inconsistency. In fact, the statement contradicts Petitioner’s contention as both 15 Moreno and the Investigative Employee stated that Petitioner was confined to quarters on the day 16 of the incident, March 2, 2022, but he was out of his cell while the search was conducted. The 17 Investigative Employee stated he was released from confinement to quarters on March 8, 2022, 18 but this has no relevance to the actual search that took place six days prior. The claim is without 19 merit. 20 Petitioner also undermines his argument by acknowledging that the records show he was 21 in his assigned quarters until he was ordered to exit his cell due to a mass cell search. (Doc. 1 at 22 19) (emphasis added.) In fact, in his state habeas petition, Petitioner completely contradicts his 23 claim: “Petitioner contends that the records will prove and show that ISU conducted a Mass 24 Search via Daily Activity Report (D.A.R.) on Bravo Facility in Four Building on March 2, 2022, 25 at 8:45-9:00 am and that all inmates housed in Four Block were ordered by the control booth 26 officer to exist [sic] there [sic] cell by sections A, B & C.” (Doc. 1 at 40.) Thus, the claim is 27 clearly frivolous. 28 Petitioner also contends that his due process rights were violated in the manner his 5 1 administrative appeals were processed. As noted above, Petitioner’s minimal due process rights 2 were satisfied. The Constitution does not provide additional due process protections for the 3 manner administrative appeals are conducted. He also contends that his Eighth Amendment 4 right to be free from cruel and unusual punishment was violated when he was given a false 5 charge for possession of alcohol. The claim lacks merit since there is no evidence that the charge 6 was false, but substantial evidence supporting Petitioner’s guilt. For the foregoing reasons, the Court concludes that Petitioner fails to state a prima facie 7 8 claim that any of his due process guarantees were violated. Wolff, 418 U.S. at 554, 556, 570. 9 The petition should be dismissed. 10 IV. ORDER 11 IT IS HEREBY ORDERED that the Clerk of Court is directed to assign a district judge to 12 the case. 13 V. RECOMMENDATION 14 Based on the foregoing, the Court HEREBY RECOMMENDS that the petition for writ of 15 habeas corpus be SUMMARILY DISMISSED for failure to state a prima facie claim for relief. This Findings and Recommendation is submitted to the United States District Court 16 17 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and 18 Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of 19 California. Within twenty-one (21) days after being served with a copy, Petitioner may file 20 written objections with the Court. Such a document should be captioned “Objections to 21 Magistrate Judge’s Findings and Recommendation.” The Court will then review the Magistrate 22 Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file 23 objections within the specified time may waive the right to appeal the District Court’s order. 24 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 26 IT IS SO ORDERED. 27 Dated: /s/ Sheila K. Oberto December 18, 2023 . UNITED STATES MAGISTRATE JUDGE 28 6
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