-TJB (HC) Sanchez v. Walker, et al, No. 2:2010cv00596 - Document 20 (E.D. Cal. 2011)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Timothy J. Bommer on 8/1/11, ORDERING that petitioner's request for an order to show cause is DENIED AS MOOT; petitioner's request for the appointment of counsel is DENIED; p etitioner's request for discovery is DENIED; and petitioner's request for an evidentiary hearing is DENIED. It is RECOMMENDED that the petition for writ of habeas corpus be DENIED. Matter referred to Judge Damrell with 1 the Petition for Writ of Habeas Corpus. Within 21 days after being served with these findings and recommendations, 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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-TJB (HC) Sanchez v. Walker, et al Doc. 20 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MANUEL GUADALUPE SANCHEZ, Jr. 11 12 13 14 Petitioner, 2: 10 - cv - 596 - FCD TJB vs. J. WALKER, et al., Respondents. ORDER, FINDINGS AND 15 16 17 18 RECOMMENDATIONS ________________________________/ I. INTRODUCTION Petitioner, Manuel Guadalupe Sanchez, Jr., is a state prisoner proceeding pro se with a 19 petition for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges the loss of 181 20 days of credit following a prison disciplinary proceeding where he was found guilty of possession 21 of a weapon. Petitioner raises four claims in his habeas petition; specifically: (1) Petitioner’s due 22 process rights were violated when Respondent failed to properly search his cell prior to his 23 arrival at that cell (“Claim I”); (2) Petitioner’s due process rights were violated when he was not 24 given a fair and impartial disciplinary hearing (“Claim II”); (3) Petitioner’s due process rights 25 were violated because there was insufficient evidence to show that he knowingly possessed a 26 weapon (“Claim III”); and (4) Petitioner’s due process rights were violated when his appeals 1 Dockets.Justia.com 1 were improperly heard (“Claim IV”). For the following reasons, the habeas petition should be 2 denied. 3 II. FACTUAL AND PROCEDURAL BACKGROUND 4 According to the Rules Violation Report (RVR), Petitioner’s cell was searched by Officer 5 Dreager on December 22, 2007. Petitioner’s mattress was searched and an object was found 6 wrapped with layers of plastic wrap surrounding the object. Upon opening the item, a 7 razorblade, a piece of silver metal, a sewing needle, sandpaper, fine wire and an inmate 8 manufactured hypodermic needle were found. (See Resp’t’s Answer Ex. 1 at p. 34.) 9 Petitioner appeared before a senior hearing officer (SHO) on January 21, 2008. The RVR 10 indicates that Petitioner did not request any witnesses besides Officer Dreager. (See id. at p. 35.) 11 Ultimately, Petitioner was found guilty of possession of a weapon by the SHO. 12 After exhausting his administrative appeals, Petitioner filed a petition for writ of habeas 13 corpus in the Superior Court of California, County of Sacramento on December 26, 2008. 14 Petitioner raised the issues he raises in his federal habeas petition. The Superior Court denied the 15 state habeas petition in a written decision dated February 18, 2009. (See id. Ex. 2.) Petitioner’s 16 petitions to the California Court of Appeal and the California Supreme Court were summarily 17 denied. 18 On March 15, 2010, Petitioner filed the instant federal habeas petition. Respondent 19 answered the petition on July 9, 2010 admitting that Petitioner had exhausted his claims. 20 Petitioner filed a traverse on October 13, 2010. On July 7, 2011, the matter was reassigned to the 21 undersigned. 22 23 III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS An application for writ of habeas corpus by a person in custody under judgment of a state 24 court can only be granted for violations of the Constitution or laws of the United States. See 28 25 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1994); Middleton v. 26 Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). 2 1 Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism 2 and Effective Death Penalty Act of 1996 (“AEDPA”) applies. See Lindh v. Murphy, 521 U.S. 3 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim 4 decided on the merits in the state court proceedings unless the state court’s adjudication of the 5 claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, 6 clearly established federal law, as determined by the Supreme Court of the United States; or (2) 7 resulted in a decision that was based on an unreasonable determination of the facts in light of the 8 evidence presented in state court. See 28 U.S.C. 2254(d). 9 As a threshold matter, this Court must “first decide what constitutes ‘clearly established 10 Federal law, as determined by the Supreme Court of the United States.’” Lockyer v. Andrade, 11 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). “‘[C]learly established federal law’ 12 under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court 13 at the time the state court renders its decision.’” Id. (citations omitted). Under the unreasonable 14 application clause, a federal habeas court making the unreasonable application inquiry should ask 15 whether the state court’s application of clearly established federal law was “objectively 16 unreasonable.” See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, “a federal court may 17 not issue the writ simply because the court concludes in its independent judgment that the 18 relevant state court decision applied clearly established federal law erroneously or incorrectly. 19 Rather, that application must also be unreasonable.” Id. at 411. Although only Supreme Court 20 law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in 21 determining whether a state court decision is an objectively unreasonable application of clearly 22 established federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) (“While only 23 the Supreme Court’s precedents are binding . . . and only those precedents need be reasonably 24 applied, we may look for guidance to circuit precedents.”). In this case, the last reasoned court 25 decision was from the Superior Court of California, County of Sacramento on Petitioner’s state 26 habeas petition. 3 1 2 3 4 5 6 7 8 9 10 11 12 IV. ANALYSIS OF PETITIONER’S CLAIMS The Superior Court provided the last reasoned decision on Petitioner’s claims and stated the following in denying Petitioner’s state habeas petition: Petitioner is challenging disciplinary proceedings held with respect to CDC 115 Rules Violation Report (RVR) log number A/S-07-12030. [FN 1] First, he contends that there was no evidence to show that he had knowing possession of the weapon as he asserts that correctional officials cannot demonstrate that they properly searched the cell and mattresses prior to moving petitioner and his cellmate into that particular cell. He also claims that officials did not search or x-ray a third mattress that was brought into the cell approximately five months later. [FN 2] [FN 1] Petitioner was charged with, and found guilty of, possession of an inmate-manufactured weapon. [FN 2] Petitioner has also raised the claim that prison officials failed to follow procedure when they allegedly neglected to search the cell and mattresses prior to his assignment there, and allegedly neglected to search the third mattress. However, as this information would go to the weight of the evidence presented this claim is being construed as part of petitioner’s sufficiency of the evidence claim. 13 14 15 16 17 18 19 20 21 Second, petitioner contends that he was denied a right to call witnesses at the hearing. Specifically, he is referring to the correctional employee who conducted the cell search prior to petitioner’s placement in the cell. He notes that the signature is illegible and asserts that that fact prevented him from being able to track the employee down and question him about the search. Third, petitioner contends that he was denied his right to a fair hearing of his appeal, asserting that correctional officials failed to address his issues. Specifically, he claims that they ignored the fact that he had been unable to call the correctional official who conducted the initial cell search as a witness and over-looked the fact that there was no evidence that he had knowledge of the weapon. Inmates may not have any weapons in their possession or under their control. (Cal. Code of Regs., tit. 15, § 3006(a).) 22 23 24 25 26 An inmate is found guilty at a disciplinary hearing based upon a preponderance of the evidence standard. Due process requires that the findings of a disciplinary board be upheld if the decision is supported by “some evidence.” (Superintendent v. Hill (1985) 472 U.S. 445, 454.) Hill expressly states that in applying the “some evidence” standard, courts are not required to examine the entire record, independently assess credibility of witnesses, or weigh the evidence. (Id., at p. 455.) The court must only decide if there is 4 1 any evidence in the record that would support the conclusion reached. (Id. at pp. 455-456.) 2 3 4 5 In this case, the weapon was found secreted inside the mattress that petitioner had been using for at least two months prior to the search. Unfortunately for petitioner, that information is sufficient to satisfy the “some evidence” standard set forth in Hill, supra. Petitioner’s claim that he was denied his right to call witness to the hearing fails to state a prima facie case for relief. 6 7 8 9 10 11 12 13 An inmate may request the presence of friendly and adverse witnesses at his disciplinary hearing. (Cal. Code Regs., tit. 15, § 3315(e).) Prison officials are required to call the requested witnesses unless the official conducting the hearing denies the request for one of the following reasons: the witness’s appearance would endanger him or her, the presiding official determines the witness has no relevant or additional information, or the witness is unavailable. (Cal. Code Regs., tit. 15, § 3315(e)(1).) The reasons for denial must be documented on the CDC Form 115. (Ca. Code Regs., tit. 15, § 3315(e)(2).) According to documentation attached to the petition, Mr. Sanchez never asked to have the officer who signed the Cell Inspection Sheet tracked down. Consequently, he waived his right ot have this witness produced for the hearing. 14 15 16 17 18 19 Peititioner’s final claim concerns his assertion that correctional officials did not respond to each of the specific issues that he raised in his appeal. Assuming, for the sake of argument, that this assertion were true, the only benefit to petitioner would be that the court could use that information as a basis to excuse a failure to satisfy the exhaustion requirement. However, as petitioner has a third level denial, he has, in fact, satisfied the exhaustion requirement and been able ot obtain judicial review of his issues. Therefore, petitioner’s claim does not state any type of claim for relief. 20 (Resp’t’s Answer Ex. 2.) 21 A. Claim I 22 In Claim I, Petitioner asserts that his prison disciplinary proceedings and appeal were not 23 in compliance with various provisions of the California Penal Code as well as state and 24 correctional code regulations. Specifically, Petitioner argues that Respondent failed to properly 25 search and document his cell prior to placing Petitioner in the cell. (See Pet’r’s Pet. at p. 6.) To 26 the extent that Petitioner bases this Claim under state law, it is insufficient to merit granting 5 1 federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (stating that it is not a 2 province of a habeas court to examine state law questions). Petitioner also argues that the Due 3 Process Clause was violated due to these purportedly state law infractions by the Respondent. To 4 the extent that Petitioner bases this Claim on the Due Process Clause, it will be considered within 5 the discussion of infra Claims II and III which set out the due process rights that Petitioner is 6 owed in this prison disciplinary proceeding. Thus, Claim I does not merit federal habeas relief 7 under these circumstances. 8 B. Claim II 9 In Claim II, Petitioner argues that his due process rights were violated when he was 10 denied a fair and impartial disciplinary hearing. Where a prison disciplinary hearing may result 11 in the loss of earned good time or behavior credits, due process requires that the inmate receive 12 certain procedural protections. First, “written notice of the charges must be given to the 13 disciplinary-action defendant in order to inform him of the charges and to enable him to marshal 14 the facts and prepare a defense.” Wolff v. McDonnell, 418 U.S. 539, 564 (1974). Second, “at 15 least a brief period of time after the notice, no less than 24 hours, should be allowed to the inmate 16 to prepare for the appearance before the [disciplinary] committee.” Id. Third, “there must be a 17 written statement by the factfinders as to the evidence relied on and reasons for the disciplinary 18 action.” Id. (internal quotation marks and citation omitted). Fourth, “the inmate facing 19 disciplinary proceedings should be allowed to call witnesses and present documentary evidence 20 in his defense when permitting him to do so will not be unduly hazardous to institutional safety 21 or correctional goals.” Id. at 566. Fifth, “[w]here an illiterate inmate is involved . . . or where 22 the complexity of the issues makes it unlikely that the inmate will be able to collect and present 23 the evidence necessary for an adequate comprehension of the case, he should be free to seek the 24 aid of a fellow inmate, or . . . to have adequate substitute aid . . . from the staff or from [a]n . . . 25 inmate designated by the staff.” Id. at 570. 26 Petitioner argues that his hearing was unfair because he was not allowed to call the 6 1 unknown officer who performed the cell inspection on August 17, 2007 as well as an officer who 2 brought in an additional mattress at some point after Petitioner was housed in his cell due to his 3 cellmate’s health condition. Contrary to Petitioner’s position, the RVR indicates that Petitioner 4 did not request any witnesses besides the officer that found the weapon.1 However, even 5 assuming arguendo that Petitioner did make such requests and they were denied, Petitioner has 6 not shown that he was prejudiced so as to justify federal habeas relief. See Brecht v. 7 Abrahamson, 507 U.S. 619, 637 (1993); see also Tien v. Sisto, Civ. No. 07-2436, 2010 WL 8 1236308, at *4 (E.D. Cal. Mar. 26, 2010) (“While neither the United States Supreme Court or the 9 Ninth Circuit Court of Appeals has spoken on the issue, numerous federal Courts of Appeals, as 10 well as courts in this district, have held that a prisoner must show prejudice to state a habeas 11 claim based on an alleged due process violation in a disciplinary proceeding.”) (citing Pilgrim v. 12 Luther, 571 F.3d 201, 206 (2d Cir. 2009); Howard v. United States Bureau of Prisons, 487 F.3d 13 808, 813 (10th Cir. 2007); Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir. 2003); Elkin v. Fauver, 14 969 F.2d 48, 53 (3d Cir. 1992); Poon v. Carey, Civ No. 05-0801, 2008 WL 5381964, at *5 (E.D. 15 Cal. Dec. 22, 2008); Gonzalez v. Clark, Civ. No. 07-0220, 2008 WL 4601495, at *4 (E.D. Cal. 16 Oct. 15, 2008)). Petitioner has not shown what the purportedly unknown officers’ testimony 17 would have been or how their testimony would have rebutted the evidence relied upon by the 18 SHO in finding Petitioner guilty of possession of a weapon. See James v. Borg, 24 F.3d 20, 26 19 (9th Cir. 1994) (“Conclusory allegations which are not supported by a statement of specific facts 20 do not warrant habeas relief.”). Thus, Petitioner fails to show that his due process rights were 21 violated. 22 In his introduction to his federal habeas petition, Petitioner also alludes to the fact that he 23 24 25 26 1 In his traverse, Petitioner asserts that his appeal form indicates that he did make these witness requests. However, Petitioner’s appeal form merely states that “[t]he SHO could not call the officer who sign [sic] the exhibit ‘B’ because the signature is not legible.” Nevertheless, for the reasons discussed infra, Petitioner failed to show that he is entitled to federal habeas relief as he failed to show prejudice. 7 1 requested his cellmate, William Barba, be called as a witness. (See Pet’r’s Pet. at p. 4.) 2 However, within Claim II, Petitioner does not argue that Barba was prevented from being a 3 witness on Petitioner’s behalf. Nevertheless, even if Petitioner was prevented from presenting 4 Barba as a witness, he fails to show that his due process rights were violated. Petitioner attached 5 a declaration to his habeas petition from Barba dated June 10, 2008 in which he states that his 6 cell was not searched on August 17, 2007 and that an extra mattress was brought into his cell for 7 him due to his medical condition. He also states in his declaration that he gave the extra mattress 8 to Petitioner and that he was never told whether the extra mattress was searched. As with 9 Petitioner’s arguments regarding the unknown two officers, Petitioner fails to show that this 10 evidence would have rebutted the finding of a weapon in Petitioner’s mattress by Officer 11 Dreager. Even if Barba was prevented from testifying, it would not have prejudiced Petitioner in 12 light of the evidence produced during the disciplinary hearing against Petitioner, namely the 13 finding of the weapon within Petitioner’s mattress. Thus, Petitioner failed to show that he was 14 prejudiced. For the foregoing reasons, Petitioner is not entitled to federal habeas relief on Claim 15 II. 16 C. Claim III 17 In his third claim, Petitioner argues that there was insufficient evidence to show that he 18 knowingly possessed a weapon. The disposition of a prison disciplinary hearing must be 19 supported by “some evidence” in the record. See Superintendent, Mass. Corr. Institution, 20 Walpole v. Hill, 472 U.S. 445, 455 (1985). The “some evidence” standard is “minimally 21 stringent” and a decision must be upheld if there is any reliable evidence in the record that could 22 support the conclusion reached by the fact finder. See Powell v. Gomez, 33 F.3d 39, 40 (9th Cir. 23 1994) (citing Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987)). Determining “whether this 24 standard is satisfied does not require examination of the entire record, independent assessment of 25 the credibility of witnesses, or the weighing of evidence.” Hill, 472 U.S. at 455-56. 26 Furthermore, “[r]evocation of good time credits is not comparable to a criminal conviction, and 8 1 neither the amount of evidence necessary to support such a conviction, nor any other standard 2 greater than some evidence applies in this context.” Id. at 456. 3 As noted by the Superior Court, there was “some evidence” giving rise to the SHO’s 4 finding. Specifically, an officer found a weapon within Petitioner’s mattress in his cell. 5 Petitioner’s arguments notwithstanding, it is not the province of a federal habeas court to reweigh 6 the evidence. See Hill, 472 U.S. at 455-56. In light of the finding by the officer, Petitioner’s 7 argument that there was insufficient evidence to find him guilty of the offense is without merit as 8 the evidence produced meets the minimally stringent “some evidence” threshold. Petitioner is 9 not entitled to federal habeas relief on Claim III. 10 D. Claim IV 11 Finally, Petitioner argues that his due process rights were violated when his appeals were 12 not properly heard. (See Pet’r’s Pet. at p. 14.) As the Respondent conceded, Petitioner 13 exhausted his state judicial remedies. (See Resp’t’s Answer at p. 2.) Furthermore, as the 14 Superior Court noted, this argument is relevant only if some of his claims were unexhausted. 15 However, Petitioner exhausted his state judicial remedies on his Claims. Thus, this argument 16 also does not merit federal habeas relief. 17 V. PETITIONER’S REQUESTS 18 A. Order to Show Cause 19 Petitioner requests an order to show cause. Respondent answered the petition on July 9, 20 2010. Therefore, this request will be denied as moot. 21 B. Appointment of Counsel 22 Next, Petitioner requests the appointment of counsel. There currently exists no absolute 23 right to the appointment of counsel in habeas proceedings. See, e.g., Nevius v. Sumner, 105 F.3d 24 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of counsel at 25 any stage of the case “if the interests of justice so require.” In the present case, the interests of 26 justice do not so require to warrant the appointment of counsel. Accordingly, Petitioner’s request 9 1 for the appointment of counsel is denied. 2 C. Discovery 3 Next, Petitioner requests discovery. Parties to a habeas proceeding are not entitled to 4 discovery as a matter of course. See Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rather, “[a] 5 judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of 6 Civil Procedure and may limit the extent of discovery.” Rule 6(a), Rules Governing § 2254 7 Cases; see also Bracy, 520 U.S. at 904. Good cause is shown “where specific allegations before 8 the court show reason to believe that the petitioner may, if the facts are fully developed, be able 9 to demonstrate that he is . . . entitled to relief.” Id. at 908-09 (internal quotation marks and 10 citation omitted); see also Pham v. Terhune, 400 F.3d 740, 743 (9th Cir. 2004). A request for 11 discovery “must also include any proposed interrogotories and requests for admission, and must 12 specify any requested documents.” Rule 6(b), Rules Governing § 2254 Cases. 13 In this case, Petitioner failed to show good cause to warrant granting his request for 14 discovery and he has not shown reason to believe that he would be entitled to relief if facts are 15 more fully developed. The request will be denied. 16 D. Evidentiary Hearing 17 Finally, Petitioner requests an evidentiary hearing. A court presented with a request for 18 an evidentiary hearing must first determine whether a factual basis exists in the record to support 19 petitioner’s claims, and if not, whether an evidentiary hearing “might be appropriate.” Baja v. 20 Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999); see also Earp v. Ornoski, 431 F.3d 1158, 1166 21 (9th Cir. 2005). A petitioner requesting an evidentiary hearing must also demonstrate that he has 22 presented a “colorable claim for relief.” Earp, 431 F.3d at 1167 (citations omitted). To show 23 that a claim is “colorable,” a petitioner is “required to allege specific facts which, if true, would 24 entitle him to relief.” Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998) (internal quotation 25 marks and citation omitted). In this case, an evidentiary hearing is not warranted for the reasons 26 stated in supra Part IV. Petitioner failed to demonstrate that he has a colorable claim for federal 10 1 habeas relief. Moreover, the Supreme Court has recently held that federal habeas review under 2 28 U.S.C. § 2254(d)(1) “is limited to the record that was before the state court that adjudicated 3 the claim on the merits” and “that evidence introduced in federal court has no bearing on” such 4 review. Cullen v. Pinholster, 131 S.Ct. 1388, 1398, 1400 (2011). Thus, his request will be 5 denied. 6 VI. CONCLUSION 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Petitioner’s request for an order to show cause is DENIED AS MOOT; 9 2. Petitioner’s request for the appointment of counsel is DENIED; 10 3. Petitioner’s request for discovery is DENIED; and 11 4. Petitioner’s request for an evidentiary hearing is DENIED. 12 For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the petition for 13 writ of habeas corpus be DENIED. 14 These findings and recommendations are submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 19 shall be served and filed within seven days after service of the objections. The parties are 20 advised that failure to file objections within the specified time may waive the right to appeal the 21 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In any objections he 22 elects to file, Petitioner may address whether a certificate of appealability should issue in the 23 event he elects to file an appeal from the judgment in this case. See Rule 11, Federal Rules 24 Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability 25 when it enters a final order adverse to the applicant). 26 // 11 1 DATED: August 1, 2011 2 3 4 5 TIMOTHY J BOMMER UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 12
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