(HC) Hunter vs. Tilton, et al.,, No. 2:2008cv01460 - Document 16 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Charlene H. Sorrentino on 5/20/10 recommending that petitioner's petition for a writ of habeas corpus be denied; REFFERED to Judge John A. Mendez; parties may file written objection within 21 days after being served with these F&R's.(Carlos, K)
Download PDF
<![CDATA[
(HC) Hunter vs. Tilton, et al., Doc. 16 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 WESLEY WADE HUNTER, 11 Petitioner, 12 No. CIV 08-CV-01460 JAM CHS P vs. 13 JAMES TILTON, ET AL., 14 Respondent. 15 16 FINDINGS AND RECOMMENDATIONS / I. INTRODUCTION 17 Petitioner, Wesley Hunter, is a state prisoner proceeding pro se with a second 18 amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. With this petition, 19 Petitioner does not challenge his underlying conviction and sentence. Rather, he challenges the 20 results of a prison disciplinary hearing held on March 7, 2006 in which he was convicted of 21 Distribution of Controlled Substance in an Institution/Facility or Contract Health Facility, in 22 violation of CAL. CODE Regs. tit. 15, §3323(c)(7) (2006) (current version at CAL. CODE Regs. tit. 23 15, §3323(c)(6) (2010)). 24 II. ISSUES 25 Petitioner claims that: 26 A. Insufficient evidence supports his prison disciplinary conviction for 1 Dockets.Justia.com 1 Distribution of a Controlled Substance in an Institution; and 2 B. He was not afforded the minimum procedural protections guaranteed by the Due Process Clause during his prison disciplinary proceedings . 3 Upon careful consideration of the record and the applicable law, it is recommended 4 that this petition for habeas corpus relief be denied. 5 III. FACTUAL AND PROCEDURAL BACKGROUND 6 On September 2, 2005, the Investigative Services Unit (“ISU”) at California State 7 Prison, Los Angeles County (CSP-LAC) received an anonymous note indicating that the occupants 8 of Facility D, Housing Unit 3, Cell 216, Petitioner and his cell mate, Andre Underwood, were in 9 possession of a contraband cellular telephone. Ex. C at 20-22.1 The anonymous note indicated that 10 Petitioner used the cellular telephone to facilitate drug trafficking activities. Id. Upon inspection 11 of Cell 216 and a clothed-body search of its occupants, correctional officers discovered a functioning 12 Virgin Mobile Kyocera cellular telephone tucked into the left sock of Inmate Underwood. Id. Based 13 on this finding, ISU confiscated all property within the cell for further investigation. Id. Petitioner 14 and Inmate Underwood received medical evaluations and were then re-housed in Administrative 15 Segregation. Id. A subsequent search warrant issued to Virgin Mobile revealed Petitioner to be the 16 service subscriber for the cellular telephone. Id. at 21. The address of record for the subscription 17 was identical to that of William Eugene Hunter, Petitioner’s brother and approved visitor at CSP18 LAC, and Katrina Hunter, who was identified by Virgin Mobile as the source of the subscription’s 19 payments. Id. at 21. 20 On September 6, 2005, ISU conducted a search of each inmate’s confiscated property. 21 Id. at 23-28. Amongst Petitioner’s property, correctional officers discovered a cellular telephone 22 charger and an envelope containing one hundred dollars in United States currency tucked between 23 the pages of a Bible. Id. In addition, correctional officers discovered nine individually packaged 24 25 1 26 All citations to lettered exhibits are to the second amended petition; all citations to numbered exhibits are to respondent’s answer. 2 1 bindles, all containing a green leafy substance, inside the left front pocket of a pair of grey 2 sweatpants belonging to Petitioner. Id. at 16. Both an initial field test and a subsequent laboratory 3 test confirmed that the bindles contained marijuana. Id. at 29, 32. 4 The search of Inmate Underwood’s property revealed an eleven page handwritten 5 letter signed by Inmate Underwood. Ex. A at 6. The letter was addressed to a suspected Mafia Crip 6 gang member and contained detailed plans involving Petitioner, Inmate Underwood and the 7 trafficking of controlled substances within California Department of Corrections and Rehabilitation 8 (“CDCR”) Institutions, including, inter alia, CSP-LAC. Id. The letter described “how other Mafia 9 Crip leaders and members, both incarcerated and civilian[,] can and should profit from the sale of 10 narcotics...inside the CDCR and on the streets.” Id. Moreover, the letter described the plans of “98 11 Main Street Mafia Crips” leaders “to establish and control” other illegal activities in CSP-LAC, 12 CDCR Institutions, and the greater Los Angeles Area.2 Id. at 7. In addition to the letter, correctional 13 officers discovered two notes. The first note contained the names, addresses, CDC numbers, and 14 last known locations of various Mafia Crips members. Id. The second note contained the bylaws 15 of the Mafia Crips and three pay sheets recording money owed to Inmate Underwood. Id. 16 In addition to the above evidence gathered from the cell occupied by Petitioner and 17 Inmate Underwood, a confidential informant admitted to purchasing both marijuana and tar heroin 18 from Inmate Underwood. The informant identified Petitioner as the cellmate of Inmate Underwood. 19 Ex. B at 13. 20 On November 9, 2005, Petitioner was issued a Rules Violation Report (“RVR”) 21 charging him with Distribution of a Controlled Substance in an Institution, in violation of CAL. CODE 22 2 23 24 25 26 Inmates in California Correctional Institutions are prohibited from possessing “any matter which contains or concerns...[p]lans for activities which violate the law, [the California Code of Regulations], or local procedures.” CAL. CODE Regs. tit. 15, § 3006(c)(6). Because the letter authored by Inmate Underwood detailed “[p]lans for activities which violate the law,” the letter itself is contraband. Id. The contents of the letter relevant to Petitioner’s RVR were summarized and presented to him in a confidential memorandum dated November 9, 2005. Ex. B at 12. Petitioner was provided with as much information as possible “without endangering the safety of the source or the security of the institution.” Ex. A at 7; see CAL. CODE Regs. tit. 15, § 3321(a)(1)-(2). 3 1 Regs. tit. 15, § 3323(c)(7). Ex. A. The CDCR also referred the RVR to the District Attorney for 2 prosecution.3 Id. at 4. On November 21, 2005, Petitioner timely received his copies of the RVR and 3 all other relevant documents, including the Serious Rules Violation Report, Continuation of Rules 4 Violation Report, Confidential Information Disclosure Forms from Sources One and Two, and the 5 Crime Incident Report. Id. On that same date, Petitioner requested that his disciplinary hearing on 6 the RVR be postponed pending the outcome of the referred prosecution; however, he withdrew this 7 request on March 3, 2006. Id. 8 Petitoner’s disciplinary hearing was held on March 7, 2006. The hearing was 9 conducted by the Senior Hearing Officer (“SHO”), who informed Petitioner that he had been charged 10 with Distribution of a Controlled Substance, in violation of CAL. CODE Regs. tit. 15, § 3016(c). Id. 11 Petitioner acknowledged understanding both the charge and the evidence being presented against 12 him. Id. According to the RVR, Petitioner entered a guilty plea and stated, “It was mine. My cellie 13 (UNDERWOOD, C63387) had no knowledge of the drugs.” Id. at 5. Though Petitioner was 14 informed, both prior to and during the hearing, of his right to request witnesses to testify in his 15 defense, he chose to call no witnesses. Id. The SHO found Petitioner guilty at the conclusion of the 16 hearing. Id. The finding of guilt was based on several incident reports filed by correctional officers 17 reciting the above facts, the laboratory results confirming the substance in the nine bindles to be 18 marijuana, and Petitioner’s guilty plea. Id. at 5-8. Accordingly, Petitioner was assessed a six month 19 loss of “good time” credits, sixty days loss of yard, dayroom and telephone privileges, and one year 20 loss of visiting privileges followed by two years of “no contact” visits. Id. at 8; see CAL. CODE Regs. 21 tit. 15, § 3315. Petitioner was additionally required to undergo two random drug tests per month for 22 a one year period and to enroll in a substance abuse counseling program. Id.; see CAL. CODE Regs. 23 24 25 26 3 Indeed, Petitioner was charged with a violation of CAL. PENAL CODE § 4573.6, which prohibits the unauthorized possession of controlled substances in a correctional institution. On September 14, 2006, Petitioner pleaded nolo contedere to the charges in the Superior Court of California, Los Angeles County. Ex. H at 49. He was sentenced to a four year period of incarceration in state prison, to run concurrently with the term he is currently serving. Id. at 52. 4 1 tit. 15, § 3315. 2 Petitioner sought appellate review on the adjudication of his disciplinary hearing with 3 CDCR, arguing that he pleaded guilty solely to possession, not distribution, of the marijuana found 4 in his cell. Ex. D at 37. Consequently, Petitioner requested either that the RVR be dismissed or that 5 the charges in the RVR be reduced from Distribution to Possession of a Controlled Substance. 6 Petitioner further requested that he be interviewed prior to any determination on the merits of his 7 appeal. Petitioner’s appeal bypassed the First Level of Review. Ex. F at 40. Petitioner’s Second 8 Level Review was denied on June 5, 2006. Id. at 41. Petitioner’s appeal was denied at the 9 Director’s Level on November 7, 2006. Ex. G. 10 After exhausting his administrative appeals, Petitioner filed a petition for writ of 11 habeas corpus in the Kern County Superior Court on April 13, 2007. Ex. 1. The court denied the 12 petition in a reasoned opinion on June 19, 2007, finding that Petitioner had failed “to state a prima 13 facie claim for relief under habeas corpus.” Ex. L. at 68-70. Petitioner next filed petitions in the 14 California Court of Appeal for both the Second and the Fifth Appellate Districts. Ex. L at 71-83. 15 Those petitions were denied August 17, 2007 and May 16, 2008, respectively. Id. Both Appellate 16 Districts declined to exercise jurisdiction over Petitioner’s claims and, therefore, each court denied 17 his petition several times without prejudice to refile in the alternate Appellate District. Ex. L at 71- 18 83. On May 23, 2008, Petitioner filed a petition for writ of habeas corpus in the California Supreme 19 Court. Ex. 6. The petition was summarily denied on June 11, 2008. Ex. L at 84. 20 On June 25, 2008, Petitioner filed a petition for writ of habeas corpus in this Court. 21 The petition was dismissed with leave to amend on November 4, 2008 because it named the 22 improper respondent. (Dist. Ct. Order, Nov. 24, 2008). In addition, the Court noted that one of 23 Petitioner’s four claims could be properly pursued only by way of a civil rights claim. Id. Petitioner 24 filed an amended petition on November 25, 2008. Once again, however, he failed to name the 25 proper respondent. Consequently, the amended petition was dismissed with leave to amend. (Dist. 26 Ct. Order, Dec. 10, 2008). Petitioner filed the instant second amended petition for writ of habeas 5 1 corpus, incorporating his state court petition, on December 24, 2008. Respondent filed an answer 2 on March 10, 2009. On March 18, 2009, Petitioner filed a traverse to Respondent’s answer. 3 IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW 4 This case is governed by the provisions of the Antiterrorism and Effective Death 5 Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after 6 its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 7 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, an application for a writ of habeas corpus by a 8 person in custody under a judgment of a state court may be granted only for violations of the 9 Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 10 375 n. 7 (2000). Federal habeas corpus relief is not available for any claim decided on the merits 11 in state court proceedings unless the state court’s adjudication of the claim: 12 (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 13 14 15 (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. 16 28 U.S.C. § 2254(d). Although “AEDPA does not require a federal habeas court to adopt any one 17 methodology,” Lockyer v. Andrade, 538 U.S 63, 71 (2003), there are certain principles which guide 18 its application. 19 First, AEDPA establishes a “highly deferential standard for evaluating state-court 20 rulings.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002). Accordingly, when determining whether 21 the law applied to a particular claim by a state court was contrary to or an unreasonable application 22 of “clearly established federal law,” a federal court must review the last reasoned state court 23 decision. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004); Avila v. Galaza, 297 F.3d 911, 24 918 (9th Cir. 2002). Provided that the state court adjudicated petitioner’s claims on the merits, its 25 decision is entitled to deference, no matter how brief. Lockyer, 538 U.S. at 76; Downs v. Hoyt, 232 26 F.3d 1031, 1035 (9th Cir. 2000). 6 1 Second, “AEDPA’s, ‘clearly established Federal law’ requirement limits the area of 2 law on which a habeas court may rely to those constitutional principles enunciated in U.S. Supreme 3 Court decisions.” Robinson, 360 F.3d at 155-56 (citing Williams, 529 U.S. at 381). In other words, 4 “clearly established Federal law” will be “ the governing legal principle or principles set forth by [the 5 U.S. Supreme] Court at the time a state court renders its decision.” Lockyer, 538 U.S. at 64. It is 6 appropriate, however, to examine lower court decisions when determining what law has been 7 "clearly established" by the Supreme Court and the reasonableness of a particular application of that 8 law. See Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 2000). 9 Third, the “contrary to” and “unreasonable application” clauses of § 2254(d)(1) have 10 “independent meanings.” Bell v. Cone, 535 U.S. 685, 694 (2002). Under the “contrary to” clause, 11 a federal court may grant a writ of habeas corpus only if the state court arrives at a conclusion 12 opposite to that reached by the Supreme Court on a question of law, or if the state court decides the 13 case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 14 529 U.S. at 405. It is not necessary for the state court to cite or even to be aware of the controlling 15 federal authorities “so long as neither the reasoning nor the result of the state-court decision 16 contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002). Moreover, a state court opinion need not 17 contain “a formulary statement” of federal law, though the fair import of its conclusion must be 18 consistent with federal law. Id. 19 Under the “unreasonable application” clause, the court may grant relief “if the state 20 court correctly identifies the governing legal principle...but unreasonably applies it to the facts of the 21 particular case.” Bell, 535 U.S. at 694. As the Supreme Court has emphasized, a court may not issue 22 the writ “simply because that court concludes in its independent judgment that the relevant state- 23 court decision applied clearly established federal law erroneously or incorrectly.” Williams, 529 U.S. 24 at 410. Thus, the focus is on “whether the state court’s application of clearly established federal law 25 is objectively unreasonable.” Bell, 535 U.S. at 694 (emphasis added). 26 Finally, the petitioner bears the burden of demonstrating that the state court’s decision 7 1 was either contrary to or an unreasonable application of federal law. Woodford, 537 U.S. at 24 ; 2 Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). 3 V. DUE PROCESS IN THE PRISON DISCIPLINARY CONTEXT 4 Petitioner alleges that his Due Process rights were violated when he was assessed, 5 inter alia, a loss of 180 days “good time” credits after being convicted in a prison disciplinary 6 proceeding of distributing a controlled substance in an institution. The Due Process Clause of the 7 Fourteenth Amendment to the United States Constitution prohibits state action that “deprive[s] any 8 person of life, liberty, or property without due process of law.” U.S. CONST . AMEND . XIV, § 2. 9 Although the Constitution does not guarantee “good time” credits to prison inmates, when a state 10 provides a statutory right to such credits and also “specifies that it is to be forfeited only for serious 11 misbehavior,” the prisoner’s interest in those credits takes on “real substance” and is “sufficiently 12 embraced within the Fourteenth Amendment ‘liberty’ to entitle him to those minimum procedures 13 appropriate under the circumstances and required by the Due Process Clause to insure that the state- 14 created right is not arbitrarily abrogated.” Wolff v. McDonnell, 418 U.S. 539, 557. California has 15 created such a statutory scheme. See CAL. CODE REGS tit. 15, § 3043. Consequently, California 16 prison inmates have a statutorily created liberty interest in “good time” credits and require minimum 17 due process procedural protections before those credits may be revoked. 18 Where a protected liberty interest exists, the requirements imposed by the Due 19 Process Clause are “dependent upon the particular situation being examined” and will vary 20 accordingly. Hewitt v. Helms, 459 U.S. 460, 472 (1983). Indeed, the Supreme Court has recognized 21 that “[l]awful imprisonment necessarily makes unavailable many rights and privileges of the ordinary 22 citizen, a ‘retraction justified by the considerations underlying our penal system.’” Wolff, 418 U.S. 23 at 555. In identifying the procedural safeguards required in the prison context, courts must 24 remember “the legitimate institutional needs of assuring the safety of inmates and prisoners” and 25 avoid “burdensome administrative requirements that might be susceptible to manipulation.” Hill, 26 472 U.S. at 454-55. Thus, the requirements of due process necessarily involve a balancing of inmate 8 1 rights and institutional security concerns, with a recognition that broad discretion must be accorded 2 to prison officials. Wolff, 418 U.S. at 560-63. 3 It is well established that inmates subject to disciplinary action, although not 4 guaranteed the “full panoply of rights” afforded to criminal defendants under the Due Process 5 Clause, are still entitled to certain procedural protections. Id. at 556-558 (1974); Superintendent v. 6 Hill, 472 U.S. 445, 455-56 (1985). Specifically, when a disciplinary proceeding may result in the 7 loss of “good time” credits guaranteed under a state statutory scheme, an inmate must receive: “(1) 8 advance written notice of the disciplinary charges; (2) an opportunity, when consistent with 9 institutional safety and correctional goals, to call witnesses and present documentary evidence in his 10 defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for 11 the disciplinary action.” Hill, 445 U.S. at 454 (citing Wolff,418 U.S. at 563-67); see also Ponte v. 12 Real, 471 U.S. 491, 495 (1985). Conversely, a prison disciplinary proceeding does not invoke a 13 constitutional right to counsel, Wolff, 418 U.S. at 570, to confront or cross-examine adverse 14 witnesses, Ponte, 471 U.S. at 510; see also Baxter v. Palmigiano, 425 U.S. 308, 322 (1976), or to 15 the procedural protections applicable to a guilty plea in state and federal criminal trials. Bostic v. 16 Carlson, 884 F.2d 1267, 1272 (9th Cir. 1989) (noting the stringent requirements for “ascertaining 17 whether a guilty plea is truly knowing, intelligent and voluntary” in the context of a criminal trial 18 and that the Ninth Circuit has refused to extend those procedural protections to less formal 19 proceedings). 20 The disposition of a disciplinary hearing must be supported by “some evidence” in 21 the record. Hill, 472 U.S. at 455. This means that a finding of guilt may not be “without support” 22 or “arbitrary.” Id. at 457. The “some evidence” standard is “minimally stringent” and a decision 23 must be upheld if there any reliable evidence in the record that could support the conclusion reached 24 by the factfinder. Powell v. Gomez, 33 F.3d 39, 40 (9th Cir. 1994) (citing Cato v. Rushen, 824 F.2d 25 703, 705 (9th Cir. 1987) (internal citations omitted)). Determining “whether this standard is satisfied 26 does not require examination of the entire record, independent assessment of the credibility of 9 1 witnesses, or the weighing of evidence.” Hill, 472 U.S. at 455-56; Toussaint v. McCarthy, 801 F.2d 2 1080, 1105 (9th Cir. 1986). Indeed, “[r]evocation of good time credits is not comparable to a 3 criminal conviction, and neither the amount of evidence necessary to support such a conviction, nor 4 any other standard greater than some evidence applies in this context.” Id. at 456 (citing Wolff, 418 5 U.S. at 562-63; Jackson v. Virginia, 443 U.S. 307 (1979)). 6 VI. 7 DISCUSSION A. Some Evidence” Supports the Discipline 8 Petitioner claims that insufficient evidence was presented during his disciplinary 9 hearing to support his conviction for distribution of a controlled substance in an institution. Thus, 10 Petitioner claims that he may only be convicted for the rule violation of possession of a controlled 11 substance. Respondent, on the other hand, argues that “some evidence” supported the prison 12 disciplinary decision. 13 On the facts in this case, it is apparent that the evidence relied upon by the SHO to 14 convict Petitioner for the rule violation of distribution in his disciplinary hearing was sufficient to 15 meet the requirements imposed by the Due Process Clause. The RVR clearly shows that the SHO 16 found Petitioner guilty of the charged rule violation based upon: (1) Incident Reports authored by 17 Officers Balandran, Clemons, Gamboa, and Romero detailing, inter alia, the discovery of contraband 18 items in Petitioner’s cell; (2) laboratory results confirming the green leafy substance discovered in 19 Petitioner’s cell to be marijuana; (3) the contents of a letter authored by Inmate Underwood revealing 20 plans involving himself and Petitioner to set up a narcotic trafficking ring within California State 21 Prisons; (4) the statement of a confidential informant who admitted purchasing marijuana and tar 22 heroin from Inmate Underwood and identified Petitioner as Inmate Underwood’s cellmate; and (5) 23 Petitioner’s guilty plea. Ex. C at 5-8. As discussed above, a federal court considering a Petitioner’s 24 habeas corpus claim is not required to examine the entire record, independently assess witness 25 credibility or weigh evidence. Hill, 472 U.S. at 455-56. The disposition of a disciplinary hearing 26 must be upheld if there is any reliable evidence in the record to support the conclusion reached by 10 1 the factfinder. 2 Moreover, AEDPA establishes a highly deferential standard for evaluation of a state- 3 court ruling. Accordingly, a federal court considering a Petitioner’s federal habeas corpus petition 4 must review and give deference to the last reasoned state-court decision on the merits of a 5 petitioner’s claim. Here, the Kern County Superior Court determined that: 6 9 There is evidence to support the imposition of discipline: the confidential informants, the positive laboratory finding of 2.75 grams of marijuana, the letter from petitioner’s cellmate detailing the plan between petitioner and himself to distribute the controlled substances, and the cell phone possession and the records tracing the account to the petitioner. All this evidence was also coupled with the detailed reports by the corrections officers. Petitioner fails to state a prima facie case for relief under habeas corpus. 10 Although Petitioner claims that his prison disciplinary conviction lacked evidentiary 11 support, he does not dispute the reliability or the factual accuracy of the evidence relied upon in 12 either the final RVR or the Kern County Superior Court opinion. The record in this case contains 13 at least “some evidence” to support the guilty finding of the SHO in Petitioner’s prison disciplinary 14 proceeding. In addition, Petitioner has not demonstrated that the decision of the Kern County 15 Superior Court upholding his prison disciplinary conviction was contrary to or an unreasonable 16 application of clearly established federal law, or that it was based on an unreasonable determination 17 of facts. Petitioner has, therefore, failed to demonstrate that he is entitled to federal habeas corpus 18 relief on this claim. 7 8 19 B. 20 Petitioner claims that he has been denied access to two cassette tapes recorded when 21 the Investigative Services Unit (“ISU”) interviewed him on December 23, 2005. Petitioner alleges 22 that these tapes disclose favorable evidence proving that correctional officers knew he did not, in 23 fact, sell any drugs. He further claims that production of the two tapes would demonstrate that he 24 was promised either that the RVR would be dismissed or that the charged rule violation would be 25 reduced to mere possession of a controlled substance. 26 Petitioner Received All Process He Was Due Petitioner was entitled to and, in fact, was afforded, the minimal procedural 11 1 protections detailed in Hill. The RVR notes that Petitioner received all relevant documents notifying 2 him of the disciplinary charges against him and the evidence relied upon well in advance of his 3 disciplinary hearing. Ex. A at 4. Indeed, Petitioner acknowledges that he received the RVR for 4 distribution of a controlled substance on November 9, 2005, well in advance of his actual hearing. 5 (Second Am. Pet.). Petitioner was given an opportunity at the hearing to call witnesses, although 6 he declined to do so, and to present documentary evidence in his defense. Ex. A at 5. Finally, 7 Petitioner was provided with a written statement from the SHO detailing the evidence relied upon 8 in reaching the determination of guilt and the reasons for the disciplinary action. Id. at 1-11. 9 Petitioner was not constitutionally entitled to the additional requested discovery. See Keel v. Dovey, 10 459 F.Supp.2d 946, 959 (C.D. Cal.2006) (finding that due process was satisfied where prisoner was 11 provided notice of the evidence to be relied upon at the disciplinary hearing and no further discovery 12 need be granted). Petitioner is not entitled to relief on this claim. 13 Petitioner additionally claims that the SHO’s verbal finding during his prison 14 disciplinary hearing is inconsistent with the final written disposition of his RVR. Although 15 Petitioner acknowledges admitting during the hearing that the marijuana found in his cell belonged 16 to him, he denies ever selling any drugs. According to Petitioner, the SHO found his hearing 17 statements credible and agreed to accept Petitioner’s guilty plea for the lesser offense of possession 18 of a controlled substance. Petitioner, therefore, contends that both his guilty plea and conviction for 19 distribution recorded on his RVR were errors that the SHO has since promised him would be 20 corrected. Aside from Petitioner’s self-serving statements, there is no evidence to corroborate 21 Petitioner’s claim. In fact, the final RVR reflects that Petitioner pleaded guilty to the charged rule 22 violation of distribution of a controlled substance during his disciplinary hearing and that, after 23 considering all of the evidence presented, the SHO found Petitioner guilty of said rule violation. 24 This Court is not permitted to substitute its own judgment for that of the SHO or to conduct an 25 independent determination with regard to the credibility of Petitioner’s hearing statements. Hill, 26 472 U.S. at 455-56. Moreover, Petitioner is not constitutionally entitled to a determination of 12 1 whether his disciplinary hearing guilty plea was knowing, intelligent and voluntary. Bostic, 884 F.2d 2 at 1267. As stated above, Petitioner received all process due under the Fourteenth Amendment and, 3 therefore, is not entitled to relief on this claim. 4 Finally, Petitioner claims that the California Code of Regulations fails to give 5 adequate warning to inmates regarding what circumstantial evidence may be considered when 6 determining whether a prison inmate is guilty of the rule violation of distribution of a controlled 7 substance, instead of the lesser rule violation of possession. Petitioner argues that, in order to be 8 convicted for distribution of a controlled substance, specific acts of distribution must be documented 9 and proven during his disciplinary hearing. Petitioner is mistaken. CAL. CODE REGS. tit. 15, § 3000 10 defines the act of distribution as “the sale or unlawful dispersing, by an inmate or parolee, of any 11 controlled substance; or the solicitation of or conspiring with others in arranging for, the 12 introduction of controlled substances into any institution, camp, contract health facility, or 13 community correctional facility for the purpose of sales or distribution. (Emphasis added). It is 14 clear that the California Code of Regulations contemplates that soliciting or conspiring with others 15 to distribute controlled substances within an institution, in addition to actual distribution of a 16 controlled substance, will constitute an act of distribution. Petitioner is not entitled to relief on this 17 claim. 18 VII. 19 20 CONCLUSION Accordingly, IT IS RECOMMENDED that petitioner’s petition for a writ of habeas corpus be denied. 21 These findings and recommendations are submitted to the United States District 22 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one 23 days after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 26 shall be served and filed within seven days after service of the objections. Failure to file objections 13 1 within the specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 2 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In any 3 objections he elects to file petitioner may address whether a certificate of appealability should issue 4 in the event he elects to file an appeal from the judgment in this case. See Rule 11, Federal Rules 5 Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability 6 when it enters a final order adverse to the applicant). 7 DATED: May 20, 2010 8 9 10 CHARLENE H. SORRENTINO UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 14
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
