(HC) Johnson v. Walker, No. 2:2009cv00064 - Document 32 (E.D. Cal. 2010)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS, signed by Magistrate Judge Timothy J. Bommer on 11/1/10, ORDERING that petitioner's request for an order to show cause is DENIED AS MOOT; and petitioner's request for the appointment of counsel is DEN IED. It is RECOMMENDED that petitioner's petition for writ of hc be denied. This matter is referred to Judge Burrell. Within 21 days after being served with these f&r's, any party may file written objections with the court and serve a copy on all parties. Any reply to the objections shall be served and filed within seven days after service of the objections. (Kastilahn, A)
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(HC) Johnson v. Walker Doc. 32 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 LACEDRIC W. JOHNSON, 11 12 13 14 Petitioner, 2: 09 - cv - 0064 - GEB TJB vs. JAMES WALKER, Respondent. ORDER, FINDINGS AND 15 16 17 18 RECOMMENDATIONS ________________________________/ I. INTRODUCTION Petitioner, Lacedric W. Johnson, is a state prisoner proceeding pro se with a petition for a 19 writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges the loss of 180 days 20 worktime credit following a prison disciplinary proceeding where he was found guilty of 21 distribution of a controlled substance. Petitioner raises several claims in his federal habeas 22 petition; specifically: (1) his constitutional rights were violated when he was tortured and subject 23 to excessive use of force when prison authorities used a four-point restraint against him (“Claim 24 I”); (2) his due process rights were violated when the investigative employee assigned to his case 25 refused to provide information on the four-point restraint procedure and failed to seek out a 26 potential witness on his disciplinary charge (“Claim II”); (3) his due process rights were violated 1 Dockets.Justia.com 1 when he was denied the right to call witnesses and present documentary evidence at the 2 disciplinary hearing (“Claim III”); and (4) his assigned investigative employee “failed to, 3 investigate, prepare and explain the disciplinary process and represent Petitioner position at the 4 rules violation hearing” (Pet’r’s Pet. at p. 20.) (“Claim IV”). Petitioner also requests an order to 5 show cause and the appointment of counsel. For the following reasons, Petitioner’s requests are 6 denied and it is recommended that his habeas petition be denied. 7 8 9 II. FACTUAL AND PROCEDURAL BACKGROUND According to the Rules Violation Report (RVR), after Petitioner used the toilet on July 29, 2006, an intensive observation officer (Marquez) searched Petitioner’s feces and discovered 10 latex bindles. The RVR explained that Johnson told the officer that “the bindles contained 11 ‘marijuana’ ‘crystal meth’ and black tar ‘heroin.’” (Resp’t’s Answer, Ex. 1 at p. 37.) The bindles 12 were subsequently tested and determined to contain controlled substances including 13 amphetamines, marijuana, cocaine and heroin. (See id. at p. 49.) Petitioner was assigned an 14 investigative employee pursuant to CCR, Title 15, § 3315(d)(1)(A) and a staff assistant pursuant 15 to CCR, Title 15, § 3315(d)(2)(A). (See id. at p. 39.) 16 Petitioner appeared before the senior hearing officer (SHO) at a disciplinary hearing on 17 September 24, 2006. The SHO found Petitioner guilty of distribution of a controlled substance. 18 The SHO cited the officer’s finding of the latex bindles in Petitioner’s feces as well as 19 Petitioner’s partial admissions of guilt to the officer. The SHO’s determined that Petitioner 20 would forfeit 180 days of worktime credits. (See id. at p. 41.) 21 Petitioner filed a state habeas petition in the California Superior Court, County of Solano 22 in June 2008. That court denied the state habeas petition. Petitioner then filed a petition to the 23 California Court of Appeal which summarily denied the petition without discussion. 24 Subsequently, the California Supreme Court denied Petitioner’s petition on November 19, 2008 25 citing In re Swain, 34 Cal. 2d 300, 304 (1949), People v. Duvall, 9 Cal. 4th 464, 474 (1995) and 26 In re Dexter, 25 Cal. 3d 921 (1979). 2 1 Petitioner filed this federal habeas in January 2009. Respondent moved to dismiss the 2 petition arguing that Petitioner failed to exhaust his state court remedies. On January 21, 2010, 3 Respondent’s motion to dismiss was denied. Subsequently, Respondent answered the petition 4 and Petitioner filed a traverse. 5 6 III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS An application for writ of habeas corpus by a person in custody under judgment of a state 7 court can only be granted for violations of the Constitution or laws of the United States. See 28 8 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. 9 Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). 10 Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism 11 and Effective Death Penalty Act of 1996 (“AEDPA”) applies. See Lindh v. Murphy, 521 U.S. 12 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim 13 decided on the merits in the state court proceedings unless the state court’s adjudication of the 14 claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, 15 clearly established federal law, as determined by the Supreme Court of the United States; or (2) 16 resulted in a decision that was based on an unreasonable determination of the facts in light of the 17 evidence presented in state court. See 28 U.S.C. 2254(d). 18 If a state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing 19 court must conduct a de novo review of a petitioner’s habeas claims. See Delgadillo v. 20 Woodford, 527 F.3d 919, 925 (9th Cir. 2008). As previously stated, it has already been 21 determined by this Court that Petitioner exhausted his Claims. In denying Petitioner’s state 22 habeas petition, the California Supreme Court cited to In re Swain, 34 Cal. 2d 300, Duvall, 9 Cal. 23 4th 464, 474 and In re Dexter, 25 Cal. 3d 921. The holdings of these cases concern procedural 24 grounds, thus, the California Supreme Court did not adjudicate Petitioner’s Claims on the merits. 25 See Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004) (holding that “a state has 26 ‘adjudicated’ a petitioner’s claims ‘on the merits’ for purposes of § 2254(d) when it has decided 3 1 the petitioner’s right to post conviction relief on the basis of the substance of the constitutional 2 claim advanced, rather than denying the claim on the basis of a procedural or other rule 3 precluding state court review of the merits”). As there was not a merits adjudication by the 4 California Supreme Court, Petitioner’s claims will be reviewed de novo. See Pirtle v. Morgan, 5 313 F.3d 1160, 1167 (9th Cir. 2002) (“[W]hen it is clear that a state court has not reached the 6 merits of a properly raised issue, we must review it de novo.”). 7 IV. PETITIONER’S CLAIMS FOR REVIEW 8 A. Claim I 9 In Claim I, Petitioner raises several arguments concerning the nature of the prison staff’s 10 investigation after it was determined that he was purportedly concealing “contraband in torso on 11 7/23/06.” (Pet’r’s Pet. at p. 11.) Most specifically, Petitioner objects to the prison staff’s use of 12 a “4-point restraint” against him during their investigation. 13 Challenges to the validity of any confinement or to particulars affecting its duration are 14 the province of habeas corpus. See Hill v. McDonough, 547 U.S. 573, 579 (2006). 15 “Traditionally, challenges to prison conditions have been cognizable only via § 1983, while 16 challenges implicating the fact or duration of confinement must be brought through a habeas 17 petition.” Docken v. Chase, 393 F.3d 1024, 1026 (9th Cir. 2004); see also Badea v. Cox, 931 18 F.2d 573, 574 (9th Cir. 1991) (stating that habeas corpus proceedings are the proper method to 19 challenge the legality or duration of confinement whereas a civil rights action is the proper 20 method of challenging the conditions of confinement). 21 In Claim I, Petitioner challenges the conditions of his confinement during the prison’s 22 investigation. The proper method to pursue such a Claim by Petitioner is through a civil rights 23 action, not through habeas. Therefore, Petitioner is not entitled to federal habeas relief on Claim 24 I. 25 B. Claim II 26 In Claim II, Petitioner makes two arguments. First, he asserts that the investigative 4 1 employee assigned to his case violated his due process rights when he failed to obtain a copy of 2 the prison’s procedure for using a 4-point restraint. (See Pet’r’s Pet. at p. 16.) This argument 3 does not relate to Petitioner’s length of or validity of confinement. Instead, it relates to his 4 conditions of confinement argument as stated in supra Part IV.A. Thus, this argument does not 5 warrant federal habeas relief. 6 Next, Petitioner asserts that the investigative employee assigned to his case failed to seek 7 out a potential witness. Petitioner later identifies this purported witness as “C/O Lopez.” (See 8 Pet’r’s Traverse at p. 6.) In his traverse, Petitioner alludes to the fact that Lopez apparently 9 replaced female officer Marquez while Petitioner was defecating because Marquez was female. 10 However, Petitioner admitted in his Petition that he defecated in the presence of Marquez on July 11 29, 2006. (See Pet’r’s Pet. at p. 11 (“While on ‘intensive observation’, Petitioner defecated on 12 July 29, 2006 in the presence of N. Marquez.”)) The investigative employee’s report also 13 indicated that Petitioner was asked if he wanted any other staff questioned and/or present at the 14 hearing pertaining to this case to which Petitioner said “No.” (Resp’t’s Answer, Ex. 1 at p. 43.) 15 At the outset, to the extent that the Petitioner asserts that the disciplinary proceedings 16 were not in compliance with various provisions of the California Penal Code as well as state and 17 correctional code regulations, his arguments are not cognizable in this federal habeas petition. 18 See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (stating that it is not the province of a habeas 19 court to examine state law questions). Next, where a prison disciplinary hearing may result in the 20 loss of earned good time or behavior credits, due process requires that the inmate receive certain 21 procedural protections. First, “written notice of the charges must be given to the disciplinary- 22 action defendant in order to inform him of the charges and to enable him to marshal the facts and 23 prepare a defense.” Wolff v. McDonnell, 418 U.S. 539, 564 (1974). Second, “at least a brief 24 period of time after the notice, no less than 24 hours, should be allowed to the inmate to prepare 25 for the appearance before the [disciplinary] committee.” Id. Third, “there must be a written 26 statement by the factfinders as to the evidence relied on and reasons for the disciplinary action.” 5 1 Id. (internal quotation marks and citation omitted). Fourth, “the inmate facing disciplinary 2 proceedings should be allowed to call witnesses and present documentary evidence in his defense 3 when permitting him to do so will not be unduly hazardous to institutional safety or correctional 4 goals.” Id. at 566. Fifth, “[w]here an illiterate inmate is involved . . . or where the complexity of 5 the issues makes it unlikely that the inmate will be able to collect and present the evidence 6 necessary for an adequate comprehension of the case, he should be free to seek the aid of a fellow 7 inmate, or . . . to have adequate substitute aid . . . from the staff or from [a]n . . . inmate 8 designated by the staff.” Id. at 570. Thus, under Wolff, prison officials must allow prisoners to 9 seek assistance from fellow inmates or prison staff if the inmate is illiterate or where the factual 10 issues are so complex that the inmate requires assistance in collecting and presenting evidence. 11 Id. 12 The record in this case shows that Petitioner did not request any witnesses at his 13 disciplinary hearing. (See Resp’t’s Answer, Ex. 1 at p. 40, 43) Petitioner pleaded not guilty and 14 stated that he will “save my statement for the courts.” (Id. at p. 39.) Furthermore, the Supreme 15 Court has explained that: 16 21 [t]he requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. The standard is met if “there was some evidence from which the conclusion of the administrative tribunal could be deduced . . . .” United States ex rel. Vajtauer v. Comm’r of Immigration, 273 U.S. [103] at 106 (1927). Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. 22 Superintendent v. Hill, 472 U.S. 445, 455-56 (1985) (citations omitted). For the reasons outlined 23 in infra Part IV.C.iii, the SHO had some evidence to support his finding. Thus, pursuant to Hill, 24 Petitioner’s due process rights were satisfied. 17 18 19 20 25 26 Additionally, even if Petitioner did in fact request that the investigative employee should have interviewed and investigated Lopez as a possible witness (even though this argument is 6 1 contrary to the record), and such a claim rises to the level of a constitutional claim, Petitioner has 2 not shown prejudice so as to justify federal habeas relief. See Brecht v. Abrahamson, 507 U.S. 3 619, 637 (1993); see also Tien v. Sisto, Civ. No. 07-2436, 2010 WL 1236308, at *4 (E.D. Cal. 4 Mar. 26, 2010) (“While neither the United States Supreme Court or the Ninth Circuit Court of 5 Appeals has spoken on the issue, numerous federal Courts of Appeals, as well as courts in this 6 district, have held that a prisoner must show prejudice to state a habeas claim based on an alleged 7 due process violation in a disciplinary proceeding.”) (citing Pilgrim v. Luther, 571 F.3d 201, 206 8 (2d Cir. 2009); Howard v. United States Bureau of Prisons, 487 F.3d 808, 813 (10th Cir. 2007); 9 Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir. 2003); Elkin v. Fauver, 969 F.2d 48, 53 (3d Cir. 10 1992); Poon v. Carey, No. Civ. S-05-0801 JAM EFB P, 2008 WL 5381964, at *5 (E.D. Cal. Dec. 11 22, 2008); Gonzalez v. Clark, No. 1:07-CV-0220 AWI JMD HC, 2008 WL 4601495, at *4 (E.D. 12 Cal. Oct. 15, 2008)). Petitioner has not shown what Lopez’s testimony would have been or how 13 his testimony would have rebutted the evidence relied upon by the SHO in finding Petitioner 14 guilty of the infraction. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory 15 allegations which are not supported by a statement of specific facts do not warrant habeas 16 relief.”). As previously stated, Petitioner admitted in his petition that Marquez was present while 17 he was defecating on July 29, 2006. He has not shown that Lopez’s testimony would have 18 changed anything found within the RVR. Therefore, for the reasons outlined above, Petitioner is 19 not entitled to federal habeas relief on Claim II. 20 C. Claim III 21 In Claim III, Petitioner raises several separate arguments; specifically: (a) Petitioner had 22 no documentary or witnesses to present due to the staff investigator’s failure to perform his 23 duties such that the SHO violated Petitioner’s due process rights by continuing with the 24 disciplinary hearing even after Petitioner informed the SHO of an available witness and 25 documentary evidence; (b) the SHO was biased; and (c) the SHO could not have found Petitioner 26 guilty based on the evidence presented. Each of these arguments is considered in turn. 7 1 2 i. SHO’s denial of request for witness and documentary evidence With respect to Petitioner’s first argument, Petitioner asserts that the SHO erred in 3 continuing with the hearing after Petitioner explained to him that he had a possible witness and 4 documentary evidence. While he does not specifically cite to a particular witness or documents 5 he wished to present, reading the petition liberally, it appears that Petitioner is claiming that the 6 SHO erred in not allowing him to call Lopez as a potential witness. First, this conclusory 7 statement by Petitioner that he requested Lopez as a witness is contrary to the record. (See 8 Resp’t’s Answer, Ex. 1 at p. 40 (“Johnson did not choose to have any witnesses present at his 9 disciplinary hearing.”).) Second, for the reasons discussed infra Part IV.C.iii, Petitioner’s due 10 process rights were not violated because the SHO had some evidence to support his findings. 11 Third, as previously stated, Petitioner failed to show any prejudice suffered by Lopez not 12 testifying. Thus, this argument does not merit federal habeas relief. 13 14 ii. SHO’s Bias Next, Petitioner states that the SHO was biased. (See Pet’r’s Pet. at p. 18 (“Petitioner 15 was denied the right to have a full and fair hearing by an unbiased hearing officer.”).) A hearing 16 conducted by a biased hearing officer may violate a prisoner’s due process rights. See, e.g., 17 Wolff, 418 U.S. at 571. To support a claim of bias, the petitioner must demonstrate actual bias 18 or the appearance of bias. See Taylor v. Hayes, 418 U.S. 488, 501 (1974). Bias cannot be shown 19 from an adverse ruling in a pending case, rather the alleged bias must be from an extrajudicial 20 source. See Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir. 2008). 21 Petitioner presents no evidence that the SHO was biased aside form his own subjective 22 belief. Without any other evidence, this does not give rise to an appearance of bias. 23 Accordingly, Petitioner is not entitled to federal habeas relief on this argument. 24 iii. Lack of Evidence to Support a Guilty Finding 25 26 Finally, Petitioner asserts that the SHO could not find Petitioner’s guilty based on the evidence presented. As previously stated, the disposition of a prison disciplinary hearing must be 8 1 supported by “some evidence” in the record. See Hill, 472 U.S. at 455. The “some evidence” 2 standard is “minimally stringent “ and a decision must be upheld if there is any reliable evidence 3 in the record that could support the conclusion reached by the fact finder. See Powell v. Gomez, 4 33 F.3d 39, 40 (9th Cir. 1994) (citing Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987)). 5 Determining “whether this standard is satisfied does not require examination of the entire record, 6 independent assessment of the credibility of witnesses, or the weighing of evidence.” Hill, 472 7 U.S. at 455-56. Furthermore, “[r]evocation of good time credits is not comparable to a criminal 8 conviction, and neither the amount of evidence necessary to support such a conviction, nor any 9 other standard greater than some evidence applies in this context.” Id. at 456. 10 Petitioner claims that there was insufficient evidence to support the SHO’s guilty finding 11 of distribution of a controlled substance. On the facts of this case, the evidence relied upon by 12 the SHO to find Petitioner guilty of the rule violation of distribution of a controlled substance 13 was sufficient so as to not violate the Due Process Clause. Specifically, the SHO made the 14 following findings to support his conclusion: 15 16 17 18 19 20 21 22 23 24 The Rules Violation Report dated 07-29-06, authored by Correctional Officer Marquez, which states in part: Following Johnson’s use of the toilet I collected and searched his feces, which contained two latex bindles. One was red and the other yellow which were about 1 ½ inches in diameter. Johnson then stated he had two more bindles. At approximately 1040 hours, Johnson used the toilet again and a search of the feces resulted in two more latex bindles being recovered. One bindle was blue in color and measured 3 inches in length and 1 ½ inches in diameter. Johnson stated that the bindles contained marijuana, crystal meth, and black tar heroin. Subject’s partial admission of guilt, stating “I have two more balloons.” He stated that the balloons contained marijuana, heroin, and crystal meth during the contraband watch, by spontaneous statement to Correctional Officer Marquez as stated in the 115 initial copy . . . The substantiation of distribution is that the drugs were wrapped in bindles, brought through visiting with the intention of distributing them to other inmates on the facility and the various kinds of drugs that were in the balloons. 25 26 (See Resp’t’s Answer, Ex. 1 at p. 40.) The disciplinary hearing disposition must be upheld if 9 1 there is any reliable evidence in the record to support the conclusion of the factfinder. For the 2 reasons cited by the SHO, there was “some evidence” to support the guilty finding. Thus, 3 Petitioner is not entitled to federal habeas relief on this argument. 4 D. Claim IV 5 Finally, Petitioner asserts that his staff assistant failed to investigate, prepare and explain 6 the disciplinary process to him in violation of the correctional rules. First, Petitioner’s argument 7 appears to be premised on state law, and therefore does not merit federal habeas relief. See 8 Estelle, 502 U.S. at 67-68. Additionally, the record indicates that the prison assigned Petitioner a 9 staff assistant. The RVR indicated that “Officer Liu was the Staff Assistant and fully explained 10 the CDC-115 process.” (Resp’t’s Answer, Ex. 1 at p. 39.) Thus, to the extent that this Claim 11 asserts a due process violation, Petitioner’s conclusory allegation does not merit federal habeas 12 relief and is belied by the record. Furthermore, Petitioner was assigned an investigative 13 employee who interviewed Petitioner and sought to investigate Petitioner’s case. (See Resp’t’s 14 Answer, Ex. 1 at p. 42-43.) Thus, Petitioner is not entitled to federal habeas relief on Claim IV. 15 V. PETITIONER’S REQUESTS 16 A. Request for an Order to Show Cause 17 Petitioner requests “an order to show cause” in his request for relief. (See Pet’r’s Pet. at 18 p. 24.) Respondent answered the Petition on February 5, 2010. Accordingly, Petitioner’s request 19 for an order to show cause is denied as moot. 20 B. Request to Appoint Counsel 21 Petitioner also requests the appointment of counsel. There currently exists no absolute 22 right to the appointment of counsel in habeas proceedings. See, e.g., Nevius v. Sumner, 105 F.3d 23 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at 24 any stage of the case “if the interests of justice so require.” In the present case, the interests of 25 justice do not so require to warrant the appointment of counsel. Accordingly, Petitioner’s request 26 for the appointment of counsel is denied. 10 1 VI. CONCLUSION 2 For the foregoing reasons, IT IS HEREBY ORDERED that: 3 1. Petitioner’s request for an order to show cause is DENIED AS MOOT; and 4 2. Petitioner’s request for the appointment of counsel is DENIED. 5 IT IS HEREBY RECOMMENDED that Petitioner’s Petition for writ of habeas corpus be 6 7 DENIED. These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 9 after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 12 shall be served and filed within seven days after service of the objections. The parties are 13 advised that failure to file objections within the specified time may waive the right to appeal the 14 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In any objections he 15 elects to file, petitioner may address whether a certificate of appealability should issue in the 16 event he elects to file an appeal from the judgment in this case. See Rule 11, Federal Rules 17 Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability 18 when it enters a final order adverse to the applicant). 19 DATED: November 1, 2010 20 21 22 23 24 TIMOTHY J BOMMER UNITED STATES MAGISTRATE JUDGE 25 26 11