Jackson v. Hartley

Filing 5

ORDER Deeming The Respondent To Be James D. Hartley, ORDER Denying Petitioner's Petition For Writ Of Habeas Corpus (Doc. 1 ), ORDER Directing The Clerk To Enter Judgment For Respondent And To Close The Action, ORDER Declining To Issue A Certificate Of Appealability, signed by Magistrate Judge Sheila K. Oberto on 12/10/2010. CASE CLOSED.(Fahrney, E)

(HC) Jackson v. Hartley

Doc. 5

1 2 3 4 5 6 7 8 9 10 DARWIN JACKSON, 11 Petitioner, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), v. JAMES D. HARTLEY, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv--0994-SKO-HC ORDER DEEMING THE RESPONDENT TO BE JAMES D. HARTLEY ORDER DENYING PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1) ORDER DIRECTING THE CLERK TO ENTER JUDGMENT FOR RESPONDENT AND TO CLOSE THE ACTION ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on June 15, 2010 (doc. 3). Pending before the Court is the petition, which was filed on June 4, 2010. /// 1
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I.

Jurisdiction

Petitioner, who is an inmate of Avenal State Prison (ASP) serving a life sentence for a 1984 conviction of murder sustained in Los Angeles County, challenges a prison disciplinary finding made at Avenal on December 30, 2007, that Petitioner committed battery on an inmate in violation Cal. Code Regs., tit. 15, § 3005(c), which resulted in a forfeiture of earned time credits. (Pet. 34-35.) Petitioner alleges 1) he was denied his Fourteenth

Amendment right to a fair disciplinary hearing and his Sixth and Fourteenth Amendment right to cross-examine the alleged victim; and 2) the finding of guilt, which rests on evidence from allegedly unreliable, confidential informants and is contradicted by circumstantial evidence, is not supported by some evidence, and thus Petitioner suffered a denial of due process of law. (Pet. 1, 3-4, 10-12, 20-21.) Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh

v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28

U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000). Plaintiff claims that in the course of the proceedings resulting in the disciplinary finding, he suffered violations of 2

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his constitutional rights.

Because violations of the

Constitution are alleged, it is concluded that the Court has subject matter jurisdiction over the instant petition. Further, Petitioner describes the named Respondent as the warden of his institution of confinement, "James A. Hartley." (Pet. 1, 10, 27-28.) Reference to the facilities website of the

California Department of Corrections and Rehabilitation (CDCR) reflects that the warden of ASP is named "James D. Hartley." Court DEEMS the named Respondent to be "James D. Hartley." Petitioner has thus named as a respondent a person who has custody of the Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). See, Stanley v. California The

Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Accordingly, this Court has jurisdiction over this action and over Respondent James D. Hartley, Warden of Avenal State Prison. II. Screening the Petition and Considering the Petition on the Merits

Rule 4 of the Rules Governing § 2254 Cases in the United 20 States District Courts (Habeas Rules) requires the Court to make 21 a preliminary review of each petition for writ of habeas corpus. 22 The Court must summarily dismiss a petition "[i]f it plainly 23 appears from the petition and any attached exhibits that the 24 petitioner is not entitled to relief in the district court...." 25 Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 26 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 27 1990). 28 3 Habeas Rule 2(c) requires that a petition 1) specify all

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grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption;

O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition

that are vague, conclusory, or palpably incredible are subject to summary dismissal. Cir. 1990). Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule Hendricks v. Vasquez, 908 F.2d 490, 491 (9th

8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001). Here, the Court has reviewed the petition, which includes apparently complete documentation of the disciplinary proceedings as well as documentation of Petitioner's having exhausted the administrative remedies available to Petitioner within the CDCR. (Pet. 43-44.) Other than Petitioner's denial of having committed the battery, there do not appear to be any disputed material facts with respect to the disciplinary proceedings or the evidence underlying the finding that Petitioner battered inmate Callender. Petitioner has provided an apparently complete record of the proceedings in question and has set forth multiple arguments concerning the proceedings and the evidence. 4 It does not appear

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that further input from Petitioner or input from Respondent is necessary. Accordingly, the Court will proceed to determine the issues raised by Petitioner in the petition on the basis of the documentary record provided by Petitioner. III. The Disciplinary Proceedings

The initial charge was battery on an inmate with serious injury. (Pet. 43.)

Correctional Sergeant S. Tuck reported in a rules violation report on December 30, 2007, that on that date and again on December 31, 2007 and January 2, 2008, he received confidential information that Petitioner had battered inmate Callender with a weapon in Callender's bunk in Dorm 13 in a dispute over bed space; Petitioner's hand swelled afterwards. (Pet. 51-53.) Tuck

reported that more than one confidential source independently provided the same information, and part of the information provided by the sources had already proven to be true. Callender had reported to the clinic on December 30 with serious injuries consistent with having been the victim of a battery. Further, an emergency physician record from Coalinga

Regional Medical Center (CRMC) confirmed that Callender had suffered a 2.5 centimeter laceration to the right cheek requiring sutures, and a fractured left clavicle. (Pet. 57-61.) On

December 31, 2007, medical examination of petitioner at about 7:00 p.m. revealed injuries to his right hand consistent with the confidential information received that Petitioner's hand had not been swollen at the time officers searched the inmates, but it swelled up later. (Pet. 55.) Although Petitioner had stated 5

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that he had received the injuries at work, the officers' daily logbook in the furniture factory where Petitioner worked contained no entry of any injury to Petitioner or any filing of workman's compensation forms. Sergeant Tuck photographed

Petitioner's right hand three times and included the photos in the incident package. (Pet 50.)

Petitioner's denial was set forth in the report of the investigating employee, Correctional Officer R. Pires. 55.) (Pet.

Pires characterized the confidential information as

voluntary and confirmed that the sources were not facing misconduct charges and did not receive anything in exchange for the information. (Pet. 56.)

With respect to possible witnesses, watch officers responded to the investigating employee that they did not have a clear view of the site of the assault, and there was never any code message that went out, so there was no need to respond or otherwise assist with respect to the incident. (Pet. 56, 94-95.) Inmate

Smith did not know if Petitioner's hand had been injured by the glue wheel or glue wheel clamp press at work on December 29, 2007. (Pet. 95-96.) Inmate Stinson could not remember if (Id. at 96.) Inmate

Petitioner's hand was injured on that date.

Dew said Petitioner's hand was injured by the glue wheel on December 29, 2007, and it should have been logged in the book. (Pet. 96.) The evidence presented at the hearing included Sergeant Tuck's rules violation report of December 30, 2007; the medical reports of injuries of both inmates; a crime incident report; the investigative employee's report dated January 24, 2008; 6

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confidential information contained in Petitioner's central file dated December 31, 2007, and January 2, 2008; confidential information disclosure forms dated December 31, 2007, January 2, 2008, and January 11, 2008; a confidential medical report dated December 30, 2007, from CRMC; the furniture factory logbook; and photographs of the injuries received by the Petitioner and victim Callender. (Pet. 52.)

Hearing Officer Campbell relied on that evidence and concluded that the scenario set forth in the written report was supported by the confidential information and inmate Callender's medical report. (Pet. 52-53.) Campbell accepted the reliability

of the three confidential documents in the finding phase of the hearing and deemed them reliable pursuant to Cal. Code Regs., tit. 15, § 3321(c) because more than one source had independently provided the same information. The hearing officer concluded

that the evidence presented was a preponderance of evidence, and indeed was overwhelmingly conclusive evidence, that Petitioner's behavior occurred as documented by the reporting employee, and thus Petitioner was found guilty of battery on an inmate. 52.) (Pet.

Campbell assessed three hundred and sixty (360) days loss (Pet. 53.) In

of credit with additional loss of privileges.

April 2008, the credit forfeiture was reduced to ninety days in view of the failure to establish serious injury. 43.) The report of the hearing held on February 5, 2008, reflects that Petitioner acknowledged that he had received all pertinent documentation at least twenty-four hours prior to the hearing held on February 5, 2008, including the report of the 7 (Pet. 88, 91,

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investigating employee.

(Pet. 51.)

The reports and the

disciplinary charge were read to Petitioner at the hearing, who stated that he understood the charges and was prepared to proceed. It was found that the disciplinary report dated

December 30, 2007, had been served on Petitioner on January 9, 2008, which was within fifteen days from the date of discovery; further, the disciplinary hearing was held on February 5, which was within thirty days of service of the report. process timeliness requirements had been met. Thus, all due

(Pet. 51.)

The investigating employee's report reflects that Petitioner requested staff and inmate witnesses at the hearing. (Pet. 96.)

The report of the hearing specifically states the following with respect to the "request for witnesses" inquiry: Subject rescinded his previous request for witnesses to be present at the hearing. Subject willingly waived all his rights to such and therefore, his request was granted by this Senior Hearing Officer. (Pet. 51.)

17 The Kings County Superior Court issued the last reasoned 18 decision on the merits, determining on February 11, 2009, that 19 the finding of battery was supported by some evidence in 20 accordance with Superintendent v. Hill, 472 U.S. 445, 454-56 21 (1985), namely, confidential information obtained by Respondent 22 and found to be reliable under the standards set forth in Cal. 23 Code Regs., tit. 15, § 3321(c), which pointed to Petitioner as 24 the inmate who brutally assaulted the victim, as well as visible 25 injuries to Petitioner's right hand, combined with an absence of 26 any documentation by Petitioner of any work injury on the date of 27 the incident. 28 8 (Pet. 20-21.) Further, although Petitioner

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alleged a denial of an opportunity to cross-examine the victim, Petitioner did not allege a specific request to conduct such cross-examination, and the court assumed to be true the statement within the relevant rules violation report that Petitioner had rescinded his previous request for witnesses to be present at the hearing. (Id. at 21.) Finally, the court reasoned that

Petitioner failed to demonstrate exhaustion of administrative remedies, which was a jurisdictional prerequisite to judicial relief. (Id.)

In the state court, Petitioner alleged that he had suffered a work injury and had told an investigating officer that work was the source of the injuries to his right hand. (Pet. 26.) He

alleged that he was placed in administrative segregation on December 31, 2007, and was given a hearing on February 5, 2008, by Senior Hearing Officer P. Campbell, at which Petitioner pled not guilty and claimed to have been falsely identified as the perpetrator. (Pet. 26, 34.) Petitioner alleged that the victim

had claimed that it was from falling downstairs that he had sustained his injuries of swelling to the back of the head, a cut to the right cheek requiring two stitches, and a broken left collarbone; the victim did not identify Petitioner as the attacker. (Pet 30-31.) Petitioner argued that his hand injuries

were inconsistent with one confidential report that the attacker had a weapon. (Pet. 33.) Petitioner recites that it was

reported that he rescinded his request for witnesses to be present at the hearing, but he does not dispute the rescission or affirmatively allege facts contrary to the occurrence of a waiver of any right to cross-examine witnesses. 9 (Pet. 27-29.)

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IV.

Legal Standards

A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000). Title 28 U.S.C. § 2254 provides in pertinent part: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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 (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. (e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption or correctness by clear and convincing evidence. The Petitioner bears the burden of establishing that the decision

22 of the state court was contrary to, or involved unreasonable 23 application of, the precedents of the United States Supreme 24 Court. 25 2004); Baylor v.Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). 26 27 28 10 Lambert v. Blodgett, 393 F.3d 943, 970 n.16 (9th Cir.

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Procedural due process of law requires that where the state has made good time subject to forfeiture only for serious misbehavior, then prisoners subject to a loss of good-time credits must be given advance written notice of the claimed violation, a right to call witnesses and present documentary evidence where it would not be unduly hazardous to institutional safety or correctional goals, and a written statement of the finder of fact as to the evidence relied upon and the reasons for disciplinary action taken. 563-64 (1974). not required. Wolff v. McDonnell, 418 U.S. 539,

Confrontation, cross-examination, and counsel are Wolff, 418 U.S. at 568-70.

Further, where good-time credits are a protected liberty interest, the decision to revoke credits must be supported by some evidence in the record. 445, 454 (1985). Superintendent v. Hill, 472 U.S.

The Court in Hill stated:

We hold that the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This 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. Commissioner of Immigration, 273 U.S., at 106, 47 S.Ct., at 304. 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. See ibid.; United States ex rel. Tisi v. Tod, 264 U.S. 131, 133-134, 44 S.Ct. 260, 260-261, 68 L.Ed. 590 (1924); Willis v. Ciccone, 506 F.2d 1011, 1018 (CA8 1974). Superintendent v. Hill, 472 U.S. at 455-56. The Constitution

does not require that the evidence logically preclude any conclusion other than the conclusion reached by the disciplinary board; rather, there need only be some evidence in order to 11

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ensure that there was some basis in fact for the decision. Superintendent v. Hill, 472 U.S. at 457. V. Analysis

With respect to the requirement that some evidence support the finding that Petitioner committed the battery upon inmate Callender, this Court does not make its own assessment of the credibility of witnesses or re-weigh the evidence. The Court

must, however, ascertain that the evidence has some indicia of reliability and, even if meager, "not so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary." Cato v. Rushen, 824 F.2d 703, 704-05 (9th

Cir. 1987) (quoting Superintendent v. Hill, 472 U.S. 445, 457 (1985)). In Cato v. Rushen, 824 F.2d at 705, the Court found that the Hill standard was not satisfied where the only evidence implicating the inmate was another inmate's statement that was related to prison officials through a confidential informant who had no first-hand knowledge of any relevant statements or actions by the inmate being disciplined and whose polygraph results were inconclusive. In contrast, evidence evaluated and found to

constitute "some evidence" supportive of various findings includes the report of a prison guard who saw several inmates fleeing an area after an assault on another inmate when no other inmates were in the area, Superintendent v. Hill, 472 U.S. 45657; the statement of a guard that the inmate had admitted a theft to supplement his income, coupled with corroborating evidence, Bostic v. Carlson, 884 F.2d 1267, 1270 (9th Cir. 1989); an inmate's admission and corroborating, circumstantial evidence, 12

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Crane v. Evans, 2009 WL 148273, *3 (N.D.Cal. Feb. 2, 2009); and an inmate's admission of having engaged in the violation plus an officer's report of having heard a recording of the offending conversation, Dawson v. Norwood, 2010 WL 761226, *1 (C.D.Cal. March 1, 2010). A prison disciplinary tribunal's determination derived from a statement of an unidentified inmate informant satisfies due process when the record contains 1) some factual information from which the trier can reasonably conclude that the information was reliable, and 2) a prison official's affirmative statement that safety considerations prevent the disclosure of the informant's name. Zimmerlee v. Keeney, 831 F.2d 183, 186-87 (9th Cir. 1987).

Reliability may be established by various methods, such as 1) the oath of a reporting or investigating officer appearing before the committee as to the truth of his report that contains confidential information, 2) corroborating testimony, 3) a statement on the record by a member of the tribunal that he had firsthand knowledge of sources of information and considered them reliable based on the informant's past record, 4) an in camera review of the documentation from which credibility was assessed, or 5) proof that an informant previously supplied reliable information. Zimmerlee v. Keeney, 831 F.2d at 186-87.

Information from an unidentified confidential informant may constitute some evidence where the confidentiality is necessary and there is some examination of the indicia of the reliability of the evidence, such as multiple confidential sources of the information, incrimination by a source, or a history of reliability. Gauthier v. Dexter, 573 F.Supp.2d 1282, 1291 13

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(C.D.Cal. 2008).

Review of the reliability determination and the Id. at 187. Due

safety determination should be deferential.

process does not require that a prisoner in a disciplinary proceeding be allowed to confront confidential informants. v. McDonnell, 418 U.S. 539, 568 (1974). Here, it was expressly determined by the hearing officer, "The identity of the sources or more specific information about how the information was retained is being withheld to protect the sources and institutional security," and "Specific information would reveal the identity of the sources." (Pet. 52.) Thus, the Wolff

record contains an affirmative statement that safety considerations preclude release of the identity of the informants. Further, the record contains ample factual information reflecting the reliability of the informants. It was concluded

that the confidential information was reliable because more than one source had independently provided the same information. (Pet. 52.) This was supported by the report of Officer Tuck, who

reported several confidential sources and further reported that more than one source independently provided the same information, and that part of the information provided by the sources had already proven to be true. Further, there was significant

corroborative evidence consisting of reliable reports of inmate Callender's injuries, Petitioner's own injuries, and Petitioner's inconsistency in claiming a work injury but not having reported it as such. There was sufficient factual material to support a

determination of reliability by the hearing officer. Petitioner emphasizes that his victim did not identify 14

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Petitioner as his attacker, and Petitioner argues that some of the confidential reports, such as one that Petitioner used a weapon, was inconsistent with the injury to Petitioner's hand. However, a report that a weapon was used is not necessarily inconsistent with an injury to Petitioner's hand, and identification may reliably be demonstrated by means other than the victim's testimony. evidence. The Court thus concludes that the disciplinary finding that Petitioner battered inmate Callender was supported by some evidence. With respect to cross-examining witnesses or presenting witnesses, the Court notes the finding of the disciplinary hearing officer that Petitioner rescinded his previous request for the presence of witnesses at the hearing. Petitioner does This Court will not re-weigh the

not affirmatively and specifically allege facts that would raise an issue of material fact regarding the rescission of his request. The Court concludes that the record supports the

conclusion that Petitioner had rescinded his request for witnesses. Further, the Court notes that cross-examination and confrontation of witnesses in prison disciplinary hearings are not guaranteed as a matter of federal due process of law. Generally, an inmate is allowed to present witnesses and documentary evidence when to do so does not threaten institutional safety or correctional goals; the decision is left to the sound discretion of the prison officials. Wolff v.

McDonnell, 418 U.S. 539, 566 (1974); Ponte v. Real, 471 U.S. 491, 15

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495 (1984).

Here, the prison officials accepted Petitioner's

waiver of witnesses. The Court, therefore, concludes that Petitioner did not show that he was denied due process of law by an absence of some reliable evidence to support the disciplinary finding or by the absence of witnesses from the hearing. habeas corpus will be denied. VI. Certificate of Appealability The petition for writ of

Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from the final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue

U.S. 322, 336 (2003).

only if the applicant makes a substantial showing of the denial of a constitutional right. § 2253(c)(2). Under this standard, a

petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. at 336 A

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

certificate should issue if the Petitioner shows that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in any procedural ruling. 529 U.S. 473, 483-84 (2000). Slack v. McDaniel,

In determining this issue, a court

conducts an overview of the claims in the habeas petition, 16

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generally assesses their merits, and determines whether the resolution was debatable among jurists of reason or wrong. Id.

It is necessary for an applicant to show more than an absence of frivolity or the existence of mere good faith; however, it is not necessary for an applicant to show that the appeal will succeed. Miller-El v. Cockrell, 537 U.S. at 338. A district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Rule 11(a) of the Rules Governing Section 2254 Cases.

Here, it does not appear that reasonable jurists could debate whether the petition should have been resolved in a different manner. Petitioner has not made a substantial showing Accordingly, the Court

of the denial of a constitutional right.

will decline to issue a certificate of appealability. VII. Disposition

Accordingly, it is ORDERED that: 1) Respondent is DEEMED to be James D. Hartley, Warden of

Avenal State Prison; and 2) 3) The petition for writ of habeas corpus is DENIED; and The Clerk is DIRECTED to enter judgment for Respondent

and close the action; and 4) ability. The Court DECLINES to issue a certificate of appeal

IT IS SO ORDERED. Dated: ie14hj December 10, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE

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