(HC) Foote v. Dickinson et al, No. 2:2008cv01029 - Document 30 (E.D. Cal. 2010)

Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 11/29/10 ORDERING petitioner's motion to change the name of the respondent 25 is granted. The clerk of the court is directed to change the name of the respond ent to Kathleen Dickinson. Petitioner's motion for expansion of the record 28 is denied. Petitioner's motion for an evidentiary hearing is denied. Petitioner's order to show cause is denied. Petitioner's motion to appoint co unsel is denied. Also, RECOMMENDING that petitioner's application for a writ of habeas corpus be denied. The district court should decline to issue a certificate of appealability. Referred to Judge Lawrence K. Karlton. Objections due within 14 days. (Plummer, M)
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(HC) Foote v. Dickinson et al Doc. 30 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MICHAEL D. FOOTE, Petitioner, 11 vs. 12 13 No. 2:08-cv-1029 LKK JFM (PC) MIKE KNOWLES, ORDER AND Respondent. 14 FINDINGS & RECOMMENDATIONS / 15 Petitioner is a state prisoner presently housed at California Medical Facility 16 17 (“CMF”) proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. 18 § 2254. On January 22, 1979, petitioner began an indeterminate term of seven years to life for 19 first degree murder, in violation of California Penal Code § 187. In the petition before the court, 20 petitioner contends his due process rights were violated by the California Department of 21 Corrections (“CDCR”) when it refused to reissue and rehear a 2005 disciplinary hearing. 22 Petitioner claims his liberty interest in parole was affected because the Board of Parole Hearings 23 considered the disciplinary violation in denying parole on September 12, 2006. 24 ///// 25 ///// 26 ///// 1 Dockets.Justia.com FACTUAL BACKGROUND 1 On June 6, 2005, while housed at Avenal State Prison, petitioner was found guilty 2 3 of “Battery on an Inmate Resulting in Serious Injury” and assessed, inter alia, a 181-day loss of 4 good time credits. (See Pet., Ex. A at 7-10.) 5 On August 31, 2005, petitioner filed an appeal (“the initial appeal”) alleging 6 various due process violations. (Id. at 3.) By way of relief, petitioner sought to have the Battery 7 charge reduced to mutual combat and the three months he served in administrative segregation 8 be deemed time served. (Id.) On October 11, 2005, petitioner’s appeal was partially granted at 9 the second level of review1: the Battery charge was reduced to mutual combat, but it was 10 determined that petitioner was afforded all due process. (Pet., Ex. A at 9-10.) Petitioner’s 11 forfeiture of credits was ordered reduced to reflect the lesser charge of mutual combat. (Id. at 12 10.) Petitioner appealed that decision, seeking an expungement of all reports used to convict 13 him on the Battery charge. (Id. at 4, 11-12; Pet., Ex. C at 13.) This appeal was denied at the 14 Director’s level of review on the ground that the matter was to be “reissued and reheard,” and 15 that any new issues following the rehearing should be submitted as a new appeal. (Pet., Ex. A at 16 13.) Petitioner filed a new appeal (“the subsequent appeal”) claiming that he did not 17 18 receive a revised rule violation report (“RVR”), did not receive a notice of rehearing, and did not 19 receive a rehearing at all, as required by CDCR regulations. (Pet., Ex. B at 2-3.) For the alleged 20 regulatory violations, petitioner sought to have all charges against him dismissed and all material 21 related to either charge of Battery or mutual combat be expunged from his record. (Id.) This 22 1 23 24 25 26 The court takes judicial notice of the fact that the CDCR has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1 (2008). The process is initiated by submitting a CDC Form 602. Id. at § 3084.2(a). Four levels of appeal are involved, including the informal level, first formal level, second formal level, and third formal level, also known as the “Director’s Level.” Id. at § 3084.5. Due to the nature of the offense that petitioner was appealing, the first level of review was bypassed. See 15 Cal. Code of Reg. § 3084.5(b)(4). 2 1 appeal was screened on July 19, 2006 after a finding that the Director’s level of review in 2 petitioner’s initial appeal mischaracterized the nature of the action taken at the second level of 3 review. (Pet., Ex. C at 5.) The appeals coordinator concluded “that there is a misinterpretation 4 of the Director’s level response . . . where it is stated that the RVR was ordered reissued and 5 reheard when in actuality, the modification order directed the CDO to modify the findings to a 6 lesser charge.” (Id.) 7 Petitioner appealed this decision to the Director’s level of review on his 8 subsequent appeal, claiming that he should have been issued a revised RVR and that the material 9 submitted in support of the Battery charge should be expunged from his record. (Pet., Ex. C at 10 8-9.) The appeal was denied on the ground that it was “rejected, withdrawn or cancelled” at the 11 second level of review. (Id. at 11.) Petitioner returned to the second level of review, wherein the 12 appeal was again denied, this time with reference to the modification order dated October 20, 13 2005 from the initial appeal. (Id. at 12-13.) Petitioner once more sought relief at the Director’s 14 level, asserting that he was denied due process because he did not receive a rehearing and 15 because the erroneous RVR should have been expunged based on the modification order. (Pet., 16 Ex. D at 1-6.) On January 23, 2007, the appeal was denied a second time because it was 17 “rejected, withdrawn or cancelled” at the second level of review. (Id. at 7.) PROCEDURAL BACKGROUND 18 Petitioner filed a petition for writ of habeas corpus in the Riverside County 19 20 Superior Court. (See Ans., Ex. 2.) Using a summary denial form, the court denied the petition 21 for failure to state a prima facie factual case. (Id.) Petitioner appealed to the California Court of 22 Appeal, Fifth Appellate District. (Ans., Ex. 3.) That appeal was denied on the ground that 23 petitioner failed to “exhaust[ ] his Fresno County Superior Court habeas petition remedies . . . .”2 24 (Ans., Ex. 4.) Petitioner filed an appeal with the California Supreme Court. (Ans., Ex. 5.) 25 2 26 The state appellate court failed to recognize that petitioner filed a habeas petition in the Riverside County Superior Court. 3 1 Review was denied on March 12, 2008. (Ans., Ex. 6.) Petitioner filed a petition for writ of habeas corpus in this court on May 12, 2008. 2 3 Respondent filed an answer on July 14, 2008. Petitioner filed a traverse on July 24, 2008. ANALYSIS 4 5 I. Standards for a Writ of Habeas Corpus 6 Federal habeas corpus relief is not available for any claim decided on the merits 7 in 8 state court proceedings unless the state court's adjudication of the claim: (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 9 10 (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. 11 12 13 28 U.S.C. § 2254(d). Under section 2254(d)(1), a state court decision is “contrary to” clearly 14 15 established United States Supreme Court precedents if it applies a rule that contradicts the 16 governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially 17 indistinguishable from a decision of the Supreme Court and nevertheless arrives at different 18 result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 19 (2000)). 20 Under the “unreasonable application” clause of section 2254(d)(1), a federal 21 habeas court may grant the writ if the state court identifies the correct governing legal principle 22 from the Supreme Court’s decisions, but unreasonably applies that principle to the facts of the 23 prisoner’s case. Williams, 529 U.S. at 413. A federal habeas court “may not issue the writ 24 simply because that court concludes in its independent judgment that the relevant state-court 25 decision applied clearly established federal law erroneously or incorrectly. Rather, that 26 application must also be unreasonable.” Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 4 1 (2003) (it is “not enough that a federal habeas court, in its independent review of the legal 2 question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”) The court looks 3 to the last reasoned state court decision as the basis for the state court judgment. Avila v. 4 Galaza, 297 F.3d 911, 918 (9th Cir. 2002). 5 II. 6 Petitioner’s Motions A. 7 8 Motion to Change Name of Respondent On September 15, 2010, petitioner filed a motion to change the name of respondent from “Mike Knowles” to “Matthew Cate,” Secretary of the CDCR. 9 A petitioner seeking habeas relief must name the state officer having custody of 10 him as the respondent to the petition. Rule 2(a) of the Rules Governing Section 2254 Cases; 11 Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme 12 Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person having custody of the prisoner is 13 the warden of the prison because the warden has “day to day control over” the prisoner. 14 Brittingham v. United States, 982. F.2d 378, 279 (9th Cir. 1992). Rule 25 of the Federal Rules 15 of Civil Procedure allows the successor of a public office to automatically be substituted as a 16 party. Petitioner’s request is partially granted. The current warden of CMF, where 17 18 petitioner is presently housed, is Kathleen Dickinson, not Matthew Cate. The Clerk of the Court 19 will be directed to modify the name of the respondent. 20 B. On November 5, 2010, petitioner field a motion for expansion of the record. For 21 22 23 Motion to Expand the Record the reasons set forth in this court’s October 4, 2010 order, this motion is denied. C. Motion for an Evidentiary Hearing 24 Petitioner seeks an evidentiary hearing. Under 28 U.S.C. § 2254(e)(2), a district 25 court presented with a request for an evidentiary hearing must first determine whether a factual 26 basis exists in the record to support a petitioner’s claims and, if not, whether an evidentiary 5 1 hearing “might be appropriate.” Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999); see 2 also Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005); Insyxiengmay v. Morgan, 403 F.3d 3 657, 669-70 (9th Cir. 2005). “[W]here the petitioner establishes a colorable claim for relief and 4 has never been afforded a state or federal hearing on this claim, we must remand to the district 5 court for an evidentiary hearing.” Earp, 431 F.3d at 1167 (citing Insyxiengmay, 403 F.3d at 670; 6 Stankewitz v. Woodford, 365 F.3d 706, 708 (9th Cir. 2004); Phillips v. Woodford, 267 F.3d 966, 7 973 (9th Cir. 2001)). In other words, a hearing is required if: “(1) [the defendant] has alleged 8 facts that, if proven, would entitle him to habeas relief, and (2) he did not receive a full and fair 9 opportunity to develop those facts[.]” Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004). 10 Here, petitioner’s request does not establish that these requirements are satisfied 11 such that an evidentiary hearing would be appropriate. Accordingly, the court denies petitioner’s 12 request. D. 13 Petitioner filed a motion to show cause. Petitioner provides no details as to the 14 15 Motion to Show Cause nature of this motion. Thus, this motion is denied. E. 16 Motion to Appoint Counsel Petitioner has requested the appointment of counsel. There currently exists no 17 18 absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 19 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at 20 any stage of the case “if the interests of justice so require.” See Rule 8(c), Fed. R. Governing 21 § 2254 Cases. In the present case, the court does not find that the interests of justice would be 22 served by the appointment of counsel. Therefore, this motion is denied. 23 III. 24 Petitioner’s Claim Petitioner claims his due process rights were violated when the CDCR failed to 25 reissue a RVR and rehear the charge of mutual combat. Examination of the petition and the 26 traverse convinces the court that petitioner’s claim is, in fact, composed of three sub-claims: (1) 6 1 petitioner’s due process rights were violated because he did not receive a revised RVR and a 2 rehearing on the mutual combat charge; (2) the CDCR violated its own regulations when it 3 issued a modification order rather than an order to reissue and rehear the disciplinary violation; 4 and (3) the reports in petitioner’s file concerning the Battery charge and/or the mutual combat 5 charge should be expunged. The last reasoned rejection of this claim is the decision of the Riverside County 6 7 8 9 10 11 12 Superior Court: Pursuant to California Rule of Court 4.551, the petition is denied due to the failure of the petition to state a prima facie factual case supporting petitioner’s release. While the petition states a number of factual conclusions, these broad conclusions are not backed up with specific details, and/or are not supported by the record in this case. (Ans., Ex. 2.) Here, the Superior Court reached a decision on the merits and concluded that 13 petitioner failed to state a prima facie case. The Superior Court, however, did not provide 14 reasoning to support its conclusion. The California Court of Appeal and the California Supreme 15 Court also denied petitioner’s habeas petitions without analysis. Accordingly, the court will 16 conduct an independent review of the record to ascertain whether the state court’s denial was 17 contrary to or involved an unreasonable application of Supreme Court precedent. 18 In a prison disciplinary hearing the concept of due process exists because an 19 inmate has a liberty interest in having good time or earned time credited against his sentence. 20 Once that good time or earned time has been credited against the sentence, the sentence has been 21 shortened. The inmate has a liberty interest in being released on the earlier date. See Wolff v. 22 McDonnell, 418 U.S. 539 (1974). Thus, good time that has been credited against a sentence 23 cannot be taken away without affording due process. Pursuant to Wolff, an inmate facing 24 disciplinary proceedings which may result in the loss of good time/behavioral credits must 25 receive: (1) advance written notice of the disciplinary charges; (2) an opportunity, when 26 consistent with institutional safety and correctional goals, to call witnesses and present 7 1 documentary evidence in his defense; and (3) a written statement by the factfinder of the 2 evidence relied upon and the reasons for the disciplinary action. Id. at 563-67. 3 Additionally, the findings of the prison disciplinary decision-maker must be 4 supported by some evidence in the record. Superintendent v. Hill, 472 U.S. 445, 454 (1985). 5 There must be “some evidence” from which the conclusion of the decision-maker could be 6 deduced. Id. at 455. An examination of the entire record is not required nor is an independent 7 assessment of the credibility of witnesses or weighing of the evidence. Id. The relevant question 8 is whether there is any evidence in the record that could support the conclusion reached by the 9 disciplinary decision-maker. Id. 10 11 A. Revised RVR and Rehearing Petitioner argues that he was denied due process because the CDCR failed to 12 reissue a RVR to reflect the mutual combat charge and failed to rehear the matter. Upon review, 13 the undersigned finds that petitioner’s assertion is without merit. 14 Following a disciplinary hearing on a Battery charge, wherein petitioner admitted 15 to fighting another prisoner, petitioner was found guilty and assessed a loss of good time credits. 16 On appeal, petitioner alleged due process violations and requested that the Battery charge be 17 reduced to mutual combat. At the second level of review, the charge was reduced to mutual 18 combat, but no due process violations were found. Petitioner appealed to the Director’s level of 19 appeal, seeking expungement of reports related to the Battery charge. At that level, petitioner 20 was erroneously informed that the matter was to be “reissued and reheard.” 21 Petitioner has seized upon this language in seeking expungement of not only all 22 material related to both charges of Battery and mutual combat, but also the guilty finding for 23 mutual combat. Petitioner’s insistence continues despite being informed repeatedly that the 24 Director’s level of review in his initial appeal mischaracterized the action taken at the second 25 level of review – that is, the second level of review issued a modification order, not an order to 26 reissue and rehear. 8 1 The court notes that petitioner does not contend that the finding of guilt for the 2 mutual combat charge is erroneous or without “some evidence.” See Hill, 472 U.S. at 455. In 3 fact, in his initial appeal, petitioner affirmatively sought a reduction of the Battery charge to 4 mutual combat. “Some evidence” also exists in the form of petitioner’s admission at the 5 disciplinary hearing that he participated in mutual combat and health records showing that the 6 other prisoner sustained injuries. (See Pet., Ex. A at 3, 7-11.) 7 Therefore, petitioner’s claim that his due process rights were violated by the 8 CDCR for its failure to reissue the RVR and rehear the matter is without merit because a reissue 9 and rehearing was never ordered. 10 B. 11 Reissue / Rehearing v. Modification Order Petitioner also argues that even if a modification order was issued, he should have 12 received an order to reissue / rehear the matter pursuant to 15 Cal. Code of Regs. § 3084.5(h). 13 This claim is not cognizable on habeas review. A writ of habeas corpus is available under 28 14 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. 15 Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). Petitioner’s claims regarding his 16 prison appeals is not grounded in federal law and is therefore not cognizable in this federal 17 habeas corpus proceeding. Petitioner has no federal constitutional right to have his prison 18 appeals addressed in any particular manner. Cf. Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 19 1989) (errors in a state post-conviction review proceeding are not addressable through federal 20 habeas corpus). 21 22 23 C. Expungement Lastly, petitioner requests expungement of material related to the Battery and/or the mutual combat charges. 24 Under Docken v. Chase, 393 F.2d 1024, 1028-29 (9th Cir. 2004), the question 25 before the court is whether expungement of these records is “likely” to accelerate petitioner’s 26 eligibility for parole, Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989), or “could 9 1 potentially affect the duration of his confinement.” Docken, 393 F.3d at 1031. As a matter of 2 law, it is well established that a disciplinary violation may affect the duration of an inmate’s 3 confinement. Pursuant to CCR section 2402(a), a prisoner that “will pose an unreasonable risk 4 of danger to society if released from prison” is not suitable for release from prison, regardless of 5 the amount of time served. In considering suitability, the Board is required to consider “all 6 relevant, reliable information available,” including “involvement in other criminal misconduct 7 which is reliably documented” and “behavior before, during, and after the crime.” 15 Cal. Code 8 Regs. § 2402(b). The circumstances tending to show unsuitability include whether “[t]he 9 prisoner has engaged in serious misconduct in prison or jail.” Id. § 2402(c)(6). Likewise, 10 institutional behavior is given additional consideration amongst the circumstances tending to 11 show suitability for parole because “[i]nstitutional activities indicate an enhanced ability to 12 function within the law upon release.” Id. § 2402(d)(9). The unsuitability and suitability factors 13 are “set forth as general guidelines” to be considered by the parole board. Id. § 2402(c), (d). 14 For the reasons set forth above, petitioner is not entitled to expungement of the 15 mutual combat conviction or any materials related thereto, and any reference to the mutual 16 combat conviction by the Board of Parole Hearings is not improper. 17 Insofar as petitioner is requesting that the material related to the Battery charge be 18 expunged, this request should be denied because petitioner has not shown that expungement of 19 these materials is likely to accelerate his eligibility for parole or potentially affect the duration of 20 his confinement. See Bostic, 884 F.2d at 1269; Docken, 393 F.3d at 1031. The record reflects 21 that at the parole hearing on September 12, 2006, the parole board relied only on the mutual 22 combat conviction in denying parole. (See Pet., Ex. I at 22-23, 36-40, 48, 53, 64-65.) The 23 record also reflects that petitioner repeatedly admitted his involvement in the fight. (See id. at 24 22-23, 37-38.) The only reference to the Battery charge occurred when the parole board referred 25 to petitioner’s appeals in the matter, which were before them at the hearing, whereupon 26 petitioner argued that the CDCR should have reissued and reheard the disciplinary violation. 10 1 (Id. at 36-40.) Ultimately, the parole board denied parole in reliance on numerous factors, 2 including “a recent serious 115 disciplinary report . . . for mutual combat.” (See id. at 59-66.) 3 Petitioner’s supplemental exhibits also show that only petitioner’s mutual combat 4 conviction was considered by the parole board at subsequent hearings on October 6, 2008 and 5 November 6, 2009. (See Ex. K (Doc. No. 15) at 63, 72-76, 110; Ex L (Doc. No. 18) at 100-01.) 6 Notably, petitioner was granted parole at the November 2009 hearing. (See Ex. L at 95.) The 7 parole grant, however, was reversed on April 5, 2010 by Governor Arnold Schwarzenegger 8 relying, in part, on the mutual combat charge. (See Ex. M (Doc. No. 19) at 9.) 9 Petitioner thus fails to demonstrate that the state court’s determination was 10 contrary to clearly established federal law or resulted in an unreasonable determination of the 11 facts. Accordingly, petitioner is not entitled to federal habeas relief. 12 For all of the foregoing reasons, petitioner’s application for a writ of habeas 13 corpus should be denied. Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the 14 United States District Courts, “[t]he district court must issue or a deny a certificate of 15 appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. 16 § 2254. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant 17 has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 18 The court must either issue a certificate of appealability indicating which issues satisfy the 19 required showing or must state the reasons why such a certificate should not issue. Fed. R. App. 20 P. 22(b). The undersigned finds that petitioner has not made a substantial showing and thus 21 recommends that a certificate of appealability should not issue. 22 Accordingly, IT IS HEREBY ORDERED that 23 1. Petitioner’s motion to change the name of the respondent is granted. The 24 Clerk of the Court is directed to change the name of respondent to Kathleen Dickinson; 25 2. Petitioner’s motion for expansion of the record is denied; 26 3. Petitioner’s motion for an evidentiary hearing is denied; 11 1 4. Petitioner’s order to show cause is denied; 2 5. Petitioner’s motion to appoint counsel is denied; and 3 IT IS HEREBY RECOMMENDED that 4 1. Petitioner’s application for a writ of habeas corpus be denied; and 5 2. The district court should decline to issue a certificate of appealability. 6 These findings and recommendations are submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 8 days after being served with these findings and recommendations, any party may file written 9 objections with the court and serve a copy on all parties. Such a document should be captioned 10 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 11 objections shall be filed and served within fourteen days after service of the objections. The 12 parties are advised that failure to file objections within the specified time may waive the right to 13 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 DATED: November 29, 2010. 15 16 17 18 /014;foot1029.157 19 20 21 22 23 24 25 26 12