Villegas v. Gonzalez et al

Filing 15

FINDINGS and RECOMMENDATION to Deny Respondent's Motion to Dismiss 11 ; FINDINGS AND RECOMMENDATION to Summarily Dismiss Petition 1 , signed by Magistrate Judge Michael J. Seng on 6/30/11. Referred to Judge O'Neill. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SANTOS A. VILLEGAS,
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Petitioner,
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v.
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FERNANDO GONZALES, et al.,
Respondents.

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1:10-cv-01104 LJO MJS HC
FINDINGS AND RECOMMENDATION TO
DENY RESPONDENT’S MOTION TO
DISMISS
FINDINGS AND RECOMMENDATION TO
SUMMARILY DISMISS PETITION
(Docs. 1, 11)

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Petitioner is a state prisoner proceeding pro se with a Petition for Writ of Habeas

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Corpus pursuant to 28 U.S.C. § 2254. Respondent is represented in this action by Christopher

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J. Rench, Esq., of the Office of the Attorney General for the State of California.

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I.

BACKGROUND

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Petitioner is currently in the custody of the California Department of Corrections. On

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January 16, 2008, the Institutional Gang Unit concluded that there was sufficient evidence to

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validate Petitioner as an associate of the 'Mexican Mafia (EME)' prison gang. (Pet. at 26-31,

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ECF No. 1.) Petitioner asserts that the validation process violated his procedural due process

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rights. (Id.)

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On October 14, 2010, Respondent filed a Motion to Dismiss the petition for failure to

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state a cognizable claim; Respondent asserts that the prison gang validation process only

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affects the conditions of Petitioner's confinement and not the fact or duration of the

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confinement. (Mot. To Dismiss, ECF No. 11.) Petitioner filed an Opposition on December 9,

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2010 and Respondent filed a Reply on December 20, 2010. (Opp'n and Reply, ECF Nos. 12-

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13.)

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II.

DISCUSSION

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A.

Procedural Grounds for Motion to Dismiss

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Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a

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petition if it "plainly appears from the petition and any attached exhibits that the petitioner is

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not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254

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Cases.

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The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an

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answer if the motion attacks the pleadings for failing to exhaust state remedies or being in

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violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th

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Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state

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remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural

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grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp.

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1189, 1194 & n. 12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss

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after the court orders a response, and the Court should use Rule 4 standards to review the

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motion. See Hillery, 533 F. Supp. at 1194 & n. 12.

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Moreover, the Advisory Committee Notes to Rule 8 of the Rules Governing Section

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2254 Cases indicates that the court may dismiss a petition for writ of habeas corpus either on

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its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an

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answer to the petition has been filed. See, e.g., Miles v. Schwarzenegger, 2008 U.S. Dist.

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LEXIS 72056, 2008 WL 3244143, at *1 (E.D. Cal. Aug. 7, 2008) (dismissing habeas petition

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pursuant to respondent's motion to dismiss for failure to state a claim). However, a petition for

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writ of habeas corpus should not be dismissed without leave to amend unless it appears that

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no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d

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13, 14 (9th Cir. 1971).

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B.

Cognizability of Petitioner's Claim
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Habeas Corpus Jurisdiction

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A writ of habeas corpus is the appropriate federal remedy when "a state prisoner is

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challenging the very fact or duration of his physical imprisonment, and the relief he seeks is

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a determination that he is entitled to an immediate or speedier release from that

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imprisonment." Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Challenges to prison

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disciplinary convictions in which the inmate has lost time credits must be raised in a federal

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habeas corpus action unless the credits have been restored or the disciplinary conviction set

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aside. Edwards v. Balisok, 520 U.S. 641, 644 (1997). Federal habeas corpus jurisdiction also

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exists when a prisoner seeks "expungement of a disciplinary finding from his record if

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expungement is likely to accelerate the prisoner's eligibility for parole." Bostic v. Carlson, 884

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F.2d 1267, 1269 (9th Cir. 1989) (citing McCollum v. Miller, 695 F.2d 1044, 1047 (7th Cir.

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1982)); see also Docken v. Chase, 393 F.3d 1024, 1028-29, 1031 (9th Cir. 2004) (challenging

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state parole board's refusal to provide petitioner with annual review of his suitability for parole).

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In Docken v. Chase, the Ninth Circuit clarified Bostic's definition of the word "likely" in

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this context. 393 F.3d at 1031. Expungement of a disciplinary finding is "likely" to accelerate

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a prisoner's eligibility for parole when his claim has "a sufficient nexus to the length of

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imprisonment so as to implicate, but not fall squarely within the 'core' challenges identified by

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the Preiser Court." Docken, 393 F.3d at 1031. An inmate's claim strikes at the core of habeas

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corpus when it "attack[s] the very duration of [his] physical confinement itself" and seeks

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"immediate release or speedier release from that confinement." Preiser, 411 U.S. at 487-88,

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498. The Ninth Circuit has concluded that a "sufficient nexus" exists, and therefore habeas

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jurisdiction, where a prison inmate "seek[s] only equitable relief in challenging aspects of [his]

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parole review that . . . could potentially affect the duration of [his] confinement." Docken, 393

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F.3d at 1031 (emphasis in original). "The likelihood of the effect on the overall length of the

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prisoner's sentence . . . determines the availability of habeas corpus." Id. at 1028 (quoting

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Ramirez, 334 F.3d at 858).

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Respondent asserts, relying on Ramirez v. Galaza, that habeas jurisdiction does not

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exist if a successful petition does not necessarily shorten Petitioner's sentence. See 334 F.3d

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at 859 ("habeas jurisdiction is absent, and a § 1983 action proper, where a successful

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challenge to a prison condition will not necessarily shorten the prisoner's sentence.").

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Subsequently, in Docken the Ninth Circuit explained that such distinction applied to 28 U.S.C.

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§ 1983 cases, and did not likewise limit habeas corpus cases. Docken, 393 F.3d at 1028.1

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"Ramirez concerned a challenge to internal disciplinary procedures and the administrative

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segregation that resulted from it. Ramirez's suit did not deal with the fact or duration of his

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confinement." See, e.g., Docken, 393 F.3d at 1030 n.4. Docken rejected the premise that

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habeas and section 1983 jurisdiction are mutually exclusive. Id. at 1031 ("As outlined above,

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the question of the relationship between habeas and § 1983 relief has only explicitly come up

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before in converse form: whether claims are not cognizable under § 1983 because their

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resolution will necessarily impact the fact and duration of confinement. In the only instance

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where the Supreme Court addressed whether habeas and § 1983 are necessarily mutually

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exclusive, the suggestion was that they are not. We agree.") (emphasis in original; citations

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omitted.).

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In summary, habeas corpus jurisdiction exists if a successful claim could potentially

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affect the duration of confinement. Respondent's assertion that habeas jurisdiction requires

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claims that necessarily shorten a petitioner's sentence incorrectly heightens the applicable

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standard.

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"Thus, although Suprem e Court case law m akes clear that § 1983 is not available where a prisoner's
claim 'necessarily' im plicates the validity or duration of confinem ent, it does not set out any m irror-im age lim itation
on habeas jurisdiction. The Court's central concern, in all of the cases cited above, has been with how far the
general rem edy provided by § 1983 m ay go before it intrudes into the m ore specific realm of habeas, not the other
way around." Docken, 393 F.3d at 1028.

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1.

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Does Petitioner's Gang Validation Not Affect the Duration of His
Confinement as a Matter of Law?

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Here, Respondent asserts that Petitioner's challenge to his gang validation would "not

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necessarily accelerate his release from prison; rather it would amount to a change in housing

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assignment." (Mot. to Dismiss at 3.) Based on this contention, Respondent asserts that the

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present claim is not cognizable. Federal courts have struggled with this precise issue.

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The Ninth Circuit, in an unpublished opinion, held that such a claim is not cognizable

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as it does not affect the duration of a petitioner's sentence as required under Preiser v.

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Rodriguez and Ramirez v. Galaza. See Burton v. Adams, No. 10-15668 (9th Cir. Feb. 23,

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2011).2 Further, several district courts have also found that such claims are not cognizable in

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habeas. See e.g., Burton v. Adams, 2010 U.S. Dist. LEXIS 22960 (E.D. Cal. Feb. 25, 2010);

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Garcia v. Horel, 2010 U.S. Dist. LEXIS 108720 (N.D. Cal. Sept. 20, 2010); Perez v. McDonald,

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2011 U.S. Dist. LEXIS 40449 (E.D. Cal. April 6, 2011).

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However, other courts have found such claims cognizable. See Flores v. Jacquez, 2010

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U.S. Dist. LEXIS 106928 at *4 (N.D. Cal. Oct. 5, 2010) ("A further review of California federal

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cases reveals that the courts have been inconsistent regarding whether a challenge to an

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indeterminate sentence to administrative segregation based on a gang-validation can be

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properly addressed in a habeas petition."). For example, in Larriva v. Watson, 2008 U.S. Dist.

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LEXIS 10287 at *9 (E.D. Cal. Feb. 12, 2008), the court denied such grounds as a basis of a

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motion to dismiss as the Respondent did not show as a matter of law that the claim could not

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be presented. In Waco v. Gonzales, 2010 U.S. Dist. LEXIS 2141 at *14 n2 (C.D. Cal. Jan. 6,

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2010), the court declined to address whether the claim was foreclosed and proceeded to the

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merits of the claim. The court reasoned it was possible such placement in segregation could

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have affected petitioner's release date by affecting his ability to earn good time credits. Id.

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Further, in Maldonado v. Scribner, 2008 U.S. Dist. LEXIS 2415 (E.D. Cal. Jan. 11, 2008), the

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court declined to adopt the recommendation of the magistrate judge to dismiss the petition as

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W hile the Ninth Circuit does not prohibit or restrict the citation of unpublished opinions issued after
January 1, 2007, such opinions are not precedential. 9th Cir. R. 36-3.

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the potential deprivation of good time credits provided a possible basis for cognizability. Still

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other courts have not addressed whether the claim was cognizable, and addressed the merits

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of the claim. See O'Neal v. Horel, 2009 U.S. Dist. LEXIS 24437 (N.D. Cal. March 13, 2009);

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Garibay v. Horel, 2011 U.S. Dist. LEXIS 55186 (N.D. Cal. May 24, 2011).

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Respondent presently makes his argument that Petitioner's claims are not cognizable

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in a motion to dismiss. Under applicable motion to dismiss standards, it may not be

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appropriate to make the requested determination. "[A] habeas court reviewing a petition under

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Rule 4 reviews only to see if it plainly appears that petitioner is not entitled to relief. Simply put,

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Rule 4 is intended to screen out plainly frivolous appeals." Calderon v. U.S. Dist. Court, 98

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F.3d 1102, 1109 (9th Cir. Cal. 1996). See also, Williams v. Kullman, 722 F.2d 1048, 1050 (2d

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Cir. N.Y. 1983) ("Nevertheless, Rule 4 does not confer unbridled discretion to dispose of all

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such habeas applications sua sponte. Summary dismissal is appropriate only in those cases

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where the pleadings indicate that petitioner can prove no set of facts to support a claim

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entitling him to relief.") (citing Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct.

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99 (1957).

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The present petition is not plainly frivolous. However, as described above, courts have

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grappled with whether gang validation sufficiently impacts the duration of a petitioner's

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sentence to present a cognizable habeas claim. Some district courts have found such claims

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are not cognizable and dismissed the petitions. Here Respondent is unable to provide any

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precedential authority that forecloses the possibility of relief to Petitioner; no such authority yet

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exists. Accordingly, this Court finds an attempt to rule on the cognizability of Petitioner's claims

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at this juncture to be premature. Further evidence and briefing may be needed to make a

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factual and legal determination that Petitioner's gang validation does not likely affect the term

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of his confinement. Respondent's attempt to dismiss the petition at this juncture is

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inappropriate and the Court declines to determine Respondent's motion to dismiss.

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B.

Merits of Petitioner's Claim

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Although Respondent filed a Motion to Dismiss, doing so put the Court in possession

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of sufficient documents to determine the merits of Petitioner's claim. In furtherance of judicial

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efficiency, the Court shall address the merits of Petitioner's claims at this time. See Rule 4,

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Rules Governing Section 2254 Cases.
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Standard of Review

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Federal courts may review habeas corpus petitions "in behalf of a person in custody

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pursuant to the judgment of a State court only on the ground that he is in custody in violation

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of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petition

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may not be granted with respect to any claim that was adjudicated on the merits in state court

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unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary

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to, or involved an unreasonable application of, clearly established Federal law, as determined

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by the Supreme Court of the United States; or (2) resulted in a decision that was based on an

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unreasonable determination of the facts in light of the evidence presented in the State court

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proceeding." 28 U.S.C. § 2254(d).

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"Under the 'contrary to' clause, a federal habeas court may grant the writ if the state

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court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question

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of law or if the state court decides a case differently than [the] Court has on a set of materially

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indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S. Ct. 1495, 146 L. Ed.

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2d 389 (2000).

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"Under the 'unreasonable application' clause, a federal habeas court may grant the writ

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if the state court identifies the correct governing legal principle from [the] Court's decision but

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unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal

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habeas court may not issue the writ simply because that court concludes in its independent

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judgment that the relevant state-court decision applied clearly established federal law

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erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A

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federal habeas court making the "unreasonable application" inquiry should ask whether the

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state court's application of clearly established federal law was "objectively unreasonable." Id.

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at 409.

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2.

No Clearly Established Federal Law Protects Petitioner's Claimed Right

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"Clearly established federal law, as determined by the Supreme Court of the United

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States" refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as

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of the time of the relevant state-court decision." Williams, 529 U.S. at 412; Norris v. Morgan,

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622 F.3d 1276, 1285 (9th Cir. 2010). If there is no Supreme Court precedent that controls on

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the legal issue raised by a petitioner in state court, the state court's decision cannot be

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contrary to, or an unreasonable application of, clearly-established federal law. Carey v.

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Musladin, 549 U.S. 70, 77, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006).

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The Supreme Court holdings on prisoners' rights in administrative segregation

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placement decisions are quite limited and are most recently found in Sandin v. Conner, 515

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U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), which set out the criteria for determining

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whether there is a protected liberty interest, and Wilkinson v. Austin, 545 U.S. 209, 125 S. Ct.

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2384, 162 L. Ed. 2d 174 (2005), which held that an indefinite placement in a harsh

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administrative segregation unit deprived inmates of a protected liberty interest; the latter case

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also summarized the procedural protections for such a deprivation that already had been

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identified by the Supreme Court.

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The Due Process Clause of the Fourteenth Amendment of the U.S. Constitution

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protects individuals against governmental deprivations of life, liberty or property without due

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process of law. Deprivations closely related to the expected terms of confinement may amount

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to deprivations of a procedurally protected liberty interest, provided that state statutes or

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regulations narrowly restrict the power of prison officials to impose the deprivation and that the

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liberty in question is one of "real substance." Sandin v. Conner, 515 U.S. at 484-87. An

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interest of "real substance" generally will be limited to freedom from restraint that imposes

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"atypical and significant hardship on the inmate in relation to the ordinary incidents of prison

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life" or "will inevitably affect the duration of [a] sentence." Id. The Supreme Court later held that

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indefinite placement in a restrictive "supermax" facility, where inmates are not eligible for

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parole consideration, imposes an "atypical and significant hardship within the correctional

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context." See Wilkinson, 545 U.S. at 223-25.

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When placement in administrative segregation implicates a protected liberty interest,

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the next step is to determine what process is due. In Wilkinson, the Court explained that

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administrative segregation placement requires less procedure "than in cases where the right

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at stake is the right to be free from confinement at all." Wilkinson, 545 U.S. at 225 (referring

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to the requirements set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed.

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2d 935 (1974), and Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 33 L. Ed. 2d 484

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(1972)). "Where the inquiry draws more on the experience of prison administrators, and where

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the State's interest implicates the safety of other inmates and prison personnel, the informal,

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nonadversary procedures set forth in [Greenholtz v. Inmates of Neb. Penal and Correctional

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Complex, 442 U.S. 1, 15, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979), and Hewitt v. Helms, 459

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U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983)], provide the appropriate model." Wilkinson,

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545 U.S. at 228-29. In Greenholtz, the Court had determined that the level of process due in

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parole suitability decision included an opportunity to be heard and notice of any adverse

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decision; in Hewitt, the Court had determined that the level of process due for inmates being

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transferred to administrative segregation included some notice of the charges and an

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opportunity to be heard. Wilkinson, 545 U.S. at 229. "[T]hese cases remain instructive for their

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discussion of the appropriate level of procedural safeguards." Id. Accordingly, the "clearly

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established federal law" for purposes of § 2254(d) requires that an inmate being transferred

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to administrative segregation that amounts to an atypical and significant hardship must be

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provided with (1) notice of the charges or reasons such placement is being considered, (2) an

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opportunity to be heard, and (3) notice of any adverse decision.

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The Supreme Court has not held that the procedural protections include any evidentiary

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sufficiency requirement for the decision to place an inmate in administrative segregation. In

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a prison disciplinary hearing, due process requires that there be an evidentiary basis for the

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prison officials' decision. See Superintendent v. Hill, 472 U.S. 445, 455, 105 S. Ct. 2768, 86

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L. Ed. 2d 356 (1985) (standard is met if there is "some evidence" from which the conclusion

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of the administrative tribunal could be deduced). The Supreme Court has not extended

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Superintendent v. Hill to the administrative segregation placement context. Cf. Swarthout v.

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Cooke, 131 S. Ct. 859, 862, 178 L. Ed. 2d 732 (2011) (implicitly declining to find, for purposes

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of section 2254(d) habeas analysis, that constitutional protections required for parole denial

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included any evidentiary sufficiency requirement). While not required based on Supreme Court

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precedent, the Ninth Circuit and district courts within the circuit have applied the "some

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evidence" standard to an inmate's placement in Secured Housing Unit ("SHU") for gang

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affiliation. See, e.g., Bruce v. Ylst, 351 F.3d 1283, 1287-88 (9th Cir. 2003).

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3.

Petitioner Received His Constitutionally Protected Procedural Rights

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Based on the law as described above, Petitioner has a protected liberty interest at issue

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with regard to indefinite placement in SHU housing. SHU conditions are severe and may affect

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a Petitioner's eligibility for parole. Accord Wilkinson, 545 U.S. at 224 (necessity of harsh

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conditions in light of danger that high-risk inmates pose to prison officials and other inmates

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does not diminish "conclusion that conditions give rise to a liberty interest in their avoidance").

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The potential to spend years in the harsh conditions of the SHU presents an atypical and

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significant hardship and therefore amounts to a deprivation of a protected liberty interest.

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In light of the absence of Supreme Court authority imposing any evidentiary sufficiency

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requirement or any requirement for the reliability of evidence, federal habeas relief cannot be

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granted to Petitioner on the basis of a claim that the placement decision is based on

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insufficient evidence or evidence that lacks sufficient indicia of reliability. Much of Petitioner's

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claims relate to the sufficiency of the evidence used by the institutional gang investigator at

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California Correctional Institution Tehachapi to find Petitioner as an associate of the Mexican

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Mafia (EME) Prison gang. (See Pet. at 26-31.) Petitioner's due process claim based on

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sufficiency and reliability of the evidence therefore must be denied.

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4.

Some Evidence Supported the Administrative Decision

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Assuming Superintendent v. Hill did apply to an administrative segregation placement

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decision, Petitioner's claim fails. Sufficient evidence exists to support the decision to validate

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him as a gang associate. (Pet. at 26-31.) Three pieces of evidence were used by prison

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officials to conclude that Petitioner met the criteria for validation as an associate of the EME

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prison gang. The three pieces of evidence - individually and collectively - provided some

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evidence to support the validation decision. According to the Kern County Superior Court, the

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decision was based on reliable evidence in the form Aztec symbols on a drawing in Petitioner's

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possession known to evidence membership in the EME, an address book listing EME

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members, and information contained in a letter to a known member of the Mexican Mafia.

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(Pet. at 35-36.) Determinations of a factual issue by a state court shall be presumed to be

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correct. 28 U.S.C. § 2254(e)(1). While Petitioner claims that the evidence relied upon did not

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meet the requirements of the relevant California Code of Regulations, he does not explain how

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the evidence is otherwise unreliable. See 15 Cal. Code Regs. § 3378.

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Thus, even if Superintendent v. Hill's some evidence requirement was a constitutionally

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required procedural protection for administrative segregation placement, the California court's

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rejection of his due process claim would not have been not contrary to or an unreasonable

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application of such requirement. Petitioner is not entitled to relief on this claim.

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III.

CONCLUSION

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As explained above, while Petitioner's claim is potentially cognizable in federal habeas,

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the claim fails on the merits and must be denied as Petitioner received constitutionally

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adequate safeguards at his gang validation proceeding. Based on the foregoing, this Court

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recommends that Respondent’s motion to dismiss be denied. However, as Petitioner's claims

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are all based on substantive determinations made at his gang validation proceeding, this Court

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recommends that the petition be summarily dismissed.

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IV.

RECOMMENDATION

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Accordingly, the Court HEREBY RECOMMENDS that the motion to dismiss for failure

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to state a cognizable claim be DENIED. Further, the Court RECOMMENDS that the petition

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be DISMISSED as Petitioner received constitutionally adequate safeguards at his gang

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validation proceeding.

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This Findings and Recommendation is submitted to the assigned United States District

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Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local

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Rules of Practice for the United States District Court, Eastern District of California. Within thirty

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(30) days after the date of service of this Findings and Recommendation, any party may file

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written objections with the Court and serve a copy on all parties. Such a document should be

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captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the

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Objections shall be served and filed within fourteen (14) days after service of the Objections.

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The Finding and Recommendation will then be submitted to the District Court for review of the

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Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(c). The parties are advised that

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failure to file objections within the specified time may waive the right to appeal the Order of the

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District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:
92b0h

June 30, 2011

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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