Davis v. Sherman

Filing 7

FINDINGS and RECOMMENDATIONS to Dismiss the Petition for Writ of Habeas Corpus for Failure to State a Cognizable Claim 1 ; FINDINGS and RECOMMENDATIONS to Decline to Issue a Certificate of Appealability and to Direct the Clerk to Close the Case, signed by Magistrate Judge Sheila K. Oberto on 2/19/15: Thirty (30) Day Deadline for Objections. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 CHARLES T. DAVIS,

Case No. 1:14-cv-01897-AWI-SKO-HC

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FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION FOR WRIT OF
HABEAS CORPUS FOR FAILURE TO STATE
A COGNIZABLE CLAIM (DOC. 1)

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Petitioner,
v.

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15 STU SHERMAN, Warden,
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Respondent.

FINDINGS AND RECOMMENDATIONS TO
DECLINE TO ISSUE A CERTIFICATE OF
APPEALABILITY AND TO DIRECT THE
CLERK TO CLOSE THE CASE
OBJECTIONS DEADLINE:
THIRTY (30) DAYS

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Petitioner is a state prisoner proceeding pro se and in forma

20 pauperis with a petition for writ of habeas corpus pursuant to 28
21 U.S.C. § 2254.

The matter has been referred to the Magistrate Judge

22 pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304.
23 Pending before the Court is the petition, which was filed on
24 December 1, 2014.
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I.

Screening the Petition

26

Rule 4 of the Rules Governing ' 2254 Cases in the United States

27 District Courts (Habeas Rules) requires the Court to make a
28 preliminary review of each petition for writ of habeas corpus.
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The

1 Court must summarily dismiss a petition "[i]f it plainly appears
2 from the petition and any attached exhibits that the petitioner is
3 not entitled to relief in the district court....@

Habeas Rule 4;

4 O=Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also
5 Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).

Habeas Rule

6 2(c) requires that a petition 1) specify all grounds of relief
7 available to the Petitioner; 2) state the facts supporting each
8 ground; and 3) state the relief requested.

Notice pleading is not

9 sufficient; rather, the petition must state facts that point to a
10 real possibility of constitutional error.

Rule 4, Advisory

11 Committee Notes, 1976 Adoption; O=Bremski v. Maass, 915 F.2d at 420
12 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)).
13 Allegations in a petition that are vague, conclusory, patently
14 frivolous or false, or palpably incredible are subject to summary
15 dismissal.
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Hendricks v. Vasquez, 908 F.2d at 491.

The Court may dismiss a petition for writ of habeas corpus

17 either on its own motion under Habeas Rule 4, pursuant to the
18 respondent's motion to dismiss, or after an answer to the petition
19 has been filed.

Advisory Committee Notes to Habeas Rule 8, 1976

20 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir.
21 2001).

A petition for habeas corpus should not be dismissed without

22 leave to amend unless it appears that no tenable claim for relief
23 can be pleaded were such leave granted.

Jarvis v. Nelson, 440 F.2d

24 13, 14 (9th Cir. 1971).
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In the petition filed on December 1, 2014, Petitioner alleges

26 that he is an inmate of the California Substance Abuse Treatment
27 Center at Corcoran, California (CSATF-COR), serving a sentence
28 imposed on May 18, 1998, in the Superior Court located at Rancho
2

1 Cucamonga, California, of sixty-one years to life for attempted
2 premeditated murder and attempted voluntary manslaughter with
3 weapons and great bodily injury.

(Pet., doc. 1 at 1, 11.)

4 Petitioner challenges sanctions, including a loss of time credit,
5 imposed in a prison disciplinary proceeding held on March 10, 2012,
6 regarding a charge that on February 16, 2012, Petitioner wilfully
7 disobeyed a direct order by wearing a hat in the prison chow hall.
8 (Id. at 5, 73-76.)

Petitioner alleges he suffered 1) a denial of

9 due process of law because the disciplinary report was false, and
10 the adjudication was wrong on the merits; 2) a denial of access to
11 the administrative appeals process that resulted in a denial of
12 access to the courts because he could not fully exhaust his
13 remedies; 3) a failure of the California Department of Corrections
14 and Rehabilitation (CDCR) to follow its own regulations regarding
15 the disciplinary proceeding and the administrative appeals process;
16 and 4) a failure of due process because he was denied witnesses at
17 the disciplinary hearing, which was a perfunctory hearing because of
18 a policy to deny appeals from disciplinary adjudications.
19 4-5, 14-15, 73.)

(Id. at

Petitioner asks this Court to compel the CDCR to

20 process his administrative appeal in a timely manner.

(Id. at 22.)

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II.

Dismissal of State Law Claims

22

Because the petition was filed after April 24, 1996, the

23 effective date of the Antiterrorism and Effective Death Penalty Act
24 of 1996 (AEDPA), the AEDPA applies to the petition.

Lindh v.

25 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484,
26 1499 (9th Cir. 1997).
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In the petition, Petitioner raises claims that are based on

28 California law, including denial of access to the administrative
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1 appeals process because he could not fully exhaust his remedies and
2 CDCR’s failure to follow its own regulations regarding the
3 disciplinary charges, proceedings, and the administrative appeals
4 process.
5

Federal habeas relief is available to state prisoners only to

6 correct violations of the United States Constitution, federal laws,
7 or treaties of the United States.

28 U.S.C. ' 2254(a).

Federal

8 habeas relief is not available to retry a state issue that does not
9 rise to the level of a federal constitutional violation.

Wilson v.

10 Corcoran, 562 U.S. C , 131 S.Ct. 13, 16 (2010); Estelle v. McGuire,
11 502 U.S. 62, 67-68 (1991).

Alleged errors in the application of

12 state law are not cognizable in federal habeas corpus.
13 Schaivo, 289 F.3d 616, 623 (9th Cir. 2002).
14 state court's interpretation of state law.
15 F.3d 1180, 1389 (9th Cir. 1996).

Souch v.

The Court accepts a
Langford v. Day, 110

In a habeas corpus proceeding,

16 this Court is bound by the California Supreme Court=s interpretation
17 of California law unless the interpretation is deemed untenable or a
18 veiled attempt to avoid review of federal questions.

Murtishaw v.

19 Woodford, 255 F.3d 926, 964 (9th Cir. 2001).
20

Here, there is no indication that any state court’s

21 interpretation of state law was associated with an attempt to avoid
22 review of federal questions.

Thus, this Court is bound by the state

23 court’s interpretation and application of state law.
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Petitioner alleges in his second claim that he suffered a

25 denial of access to the administrative appeals process, which is
26 provided for by state statute and regulation, and in his third claim
27 that the CDCR failed to follow state regulations regarding the
28 disciplinary proceeding and the administrative appeals process.
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1 Because these claims rest solely on state law, they are not
2 cognizable in a proceeding pursuant to § 2254 and must be dismissed.
3

Because the defect in these claims stems not from an absence of

4 allegations of fact but rather from the nature of the claims as
5 state law claims, the claims should be dismissed without leave to
6 amend because Petitioner could not allege tenable state law claims
7 even if leave to amend were granted.
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III.

Due Process Challenge to the Disciplinary Finding

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Petitioner alleges that the adjudicator relied on the

10 disciplinary report, and thus the adjudication was incorrect because
11 the disciplinary report was false.

Therefore, Petitioner suffered a

12 denial of due process of law.
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Procedural due process of law requires that where the state has

14 made good time subject to forfeiture only for serious misbehavior,
15 then prisoners subject to a loss of conduct credits must be given
16 advance written notice of the claimed violation, a right to call
17 witnesses and present documentary evidence where it would not be
18 unduly hazardous to institutional safety or correctional goals, and
19 a written statement of the finder of fact as to the evidence relied
20 upon and the reasons for disciplinary action taken.
21 McDonnell, 418 U.S. 539, 563-64 (1974).

Wolff v.

If the inmate is

22 illiterate, or the issue so complex that it is unlikely that the
23 inmate will be able to collect and present the evidence necessary
24 for an adequate comprehension of the case, the inmate should also
25 have access to help from staff or a sufficiently competent inmate
26 designated by the staff.

However, confrontation, cross-examination,

27 and counsel are not required.

Wolff, 418 U.S. at 568-70.

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Further, where conduct credits are a protected liberty

2 interest, the decision to revoke credits must be supported by some
3 evidence in the record.
4 (1985).
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Superintendent v. Hill, 472 U.S. 445, 454

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 Athere 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).

15 Superintendent v. Hill, 472 U.S. at 455-56.

The Constitution does

16 not require that the evidence logically preclude any conclusion
17 other than the conclusion reached by the disciplinary board; there
18 need only be some evidence in order to ensure that there was some
19 basis in fact for the decision.

Superintendent v. Hill, 472 U.S. at

20 457.
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Here, there is no merit to Petitioner’s due process challenge

22 to the finding that he engaged in the willfully disobedient act of
23 wearing a cap in violation of directions.

The reporting

24 correctional officer, Officer Dotson, reported and testified that he
25 saw Petitioner with the cap on, admonished him to remove it, saw him
26 remove it, and then saw him put it on again; the officer then
27 directed Officer Santoya to confiscate the cap after Petitioner had
28 received food.

(Pet., doc. 1 at 73, 82-83.)
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This evidence provides

1 a basis in fact for the decision, which is all that is demanded by
2 due process of law in this instance.
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Accordingly, Petitioner has not shown a real possibility of

4 constitutional error.

Petitioner’s allegations and his

5 documentation demonstrate that the finding was supported by some
6 evidence and thus preclude habeas relief on Petitioner’s claim.
7 Therefore, it will be recommended that Petitioner’s challenge to the
8 accuracy of the disciplinary finding be dismissed without leave to
9 amend.
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IV.

A.

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Denial of Request for Witnesses to Appear at the Hearing
Background

The report of the disciplinary proceeding reflects that

13 Petitioner was granted an inmate witness but had no questions for
14 him; Petitioner requested the presence of Officer Dotson, who was
15 the reporting officer, and one other officer, and he questioned
16 them.

(Doc. 1 at 74-76.)

Petitioner appends an undated

17 administrative request for witnesses, including Dotson, the
18 reporting officer; Santoya, the officer who confiscated Petitioner’s
19 cap at Dotson’s request; and inmate witnesses who declared either
20 that 1) in the course of escorting Petitioner out of the chow hall,
21 they saw Petitioner put on his cap, and it was their custom to take
22 the caps off before leaving the chow hall; or 2) in the course of
23 working in food service in the prison they were allowed to wear caps
24 in the chow hall and had further seen prison staff wear caps in the
25 chow hall.

(Id. at 80-83.)

Petitioner appends documentation of

26 correspondence with prison officials in which he asserts that the
27 additional inmate witnesses were not called to testify in conformity
28 with their declarations because, according to the hearing officer,
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1 it would have only created a conflict with Dotson’s testimony, which
2 would be that he saw Petitioner in the chow hall wearing his cap.
3 (Id. at 85-86.)
B.

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Analysis

The right to call witnesses and to present evidence at a

6 disciplinary hearing is limited by the prison authorities= discretion
7 concerning undue hazards to institutional safety or correctional
8 goals.

Wolff v. McDonnell, 418 U.S. at 563-64.

The right to call

9 witnesses is circumscribed by the necessary mutual accommodation
10 between institutional needs and objectives and the provisions of the
11 Constitution that are of general application.

A disciplinary

12 authority may decline to allow an inmate to call a witness for
13 irrelevance, lack of necessity, or hazards presented in individual
14 cases.

Baxter v. Palmigiano, 425 U.S. 308, 321 (1976).

A prison

15 disciplinary hearing officer's decision that an inmate's request to
16 call witnesses may properly be denied as irrelevant, unnecessary,
17 unduly prolonging the hearing, or jeopardizing of prison safety, is
18 entitled to deference from the Court.

See, Wolff v. McDonnell, 418

19 U.S. at 563-64; Ponte v. Real, 471 U.S. 491, 497-98 (1985); Neal v.
20 Shimoda, 131 F.3d 818, 831 (9th Cir. 1997); Zimmerlee v. Keeney, 831
21 F.2d 183, 187 (9th Cir. 1987).
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Here, it was not arbitrary or unreasonable for the disciplinary

23 hearing officer to have declined to call the inmate witnesses on the
24 ground of lack of necessity.

Even if the proffered inmate testimony

25 were fully credited, it did not constitute direct testimony that
26 Petitioner did not wear the cap in the chow hall after being
27 directed to remove it.

The testimony only showed that it was likely

28 Petitioner took the cap off upon entry and put in on again at an
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1 unspecified point, which does not foreclose or directly controvert
2 the reporting officer’s version of the events -- that he saw
3 Petitioner with the cap on, admonished him to remove it, saw him
4 remove it, then saw him put it on again, and ultimately directed
5 Officer Santoya to confiscate the cap after Petitioner had received
6 food.

(Compare pet., doc. 1 at 73 with and at 82-83.)

The record

7 submitted by Petitioner reflects that it was a reasonable and sound
8 exercise of discretion for the disciplinary hearing officer to find
9 that even if the inmates’ proffered testimony were considered, the
10 reporting officer’s report was more specific and was based on
11 recollection of having personally observed the violation.

For the

12 same reason, to the extent Petitioner might have had a right to call
13 witnesses, any denial of that right would be harmless and he
14 suffered no prejudice.

Thus, even if Petitioner were given leave to

15 amend, he could not allege a tenable procedural due process claim
16 regarding witnesses.
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Because Petitioner=s case does not point to a real possibility

18 of constitutional error, Petitioner=s claim concerning his witnesses
19 at the disciplinary hearing should be dismissed without leave to
20 amend.
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V.

Fair Tribunal

22

Petitioner alleges generally that his disciplinary hearing was

23 a perfunctory hearing because of a policy to deny appeals from
24 disciplinary adjudications.
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A fair trial in a fair tribunal is a basic requirement of due

26 process.

In re Murchison, 349 U.S. 133, 136 (1955).

Fairness

27 requires an absence of actual bias and of the probability of
28 unfairness.

Id.

Bias may be actual, or it may consist of the
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1 appearance of partiality in the absence of actual bias.
2 Pierce, 71 F.3d 732, 741 (9th Cir. 1995).

Stivers v.

A showing that the

3 adjudicator has prejudged, or reasonably appears to have prejudged,
4 an issue is sufficient.

Kenneally v. Lungren, 967 F.2d 329, 333

5 (9th Cir. 1992).
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There is a presumption of honesty and integrity on the part of

7 decision makers which may be overcome by evidence of a risk of
8 actual bias or prejudgment based on special facts and circumstances.
9 Withrow v. Larkin, 421 U.S. 35, 46-47, 58 (1975).

The mere fact

10 that a decision maker denies relief in a given case or has denied
11 relief in the vast majority of cases does not demonstrate bias.
12 Stivers v. Pierce, 71 F.3d at 742.

Unfavorable judicial rulings

13 alone are generally insufficient to demonstrate bias unless they
14 reflect such extreme favoritism or antagonism that the exercise of
15 fair judgment is precluded.

Liteky v. United States, 510 U.S. 540,

16 555 (1994).
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Here, even assuming the hearing officer was an employee of the

18 prison, his status did not deny Petitioner due process of law.

The

19 Supreme Court has ruled that a committee of correctional officers
20 and staff, acting with the purpose of taking necessary disciplinary
21 measures to control inmate behavior within acceptable limits, was
22 sufficiently impartial to conduct disciplinary hearings and impose
23 disciplinary penalties, including revocation of conduct credits.
24 Wolff v. McDonnell, 418 U.S. at 570-71.

The record of the

25 disciplinary proceedings submitted by Petitioner also shows that the
26 formalities of notice and hearing were observed and further provides
27 ample evidentiary support for the disciplinary finding.

The

28 specific showing reflected in the record contradicts and forecloses
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1 Petitioner’s generalized allegations of unfairness or a policy to
2 make and uphold administrative decisions that are unfavorable to the
3 inmate.
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Thus, it will be recommended that Petitioner’s claim of a

5 biased or unfair tribunal be dismissed without leave to amend.
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VI.

Denial of Access to the Courts

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Petitioner alleges that after his disciplinary adjudication, he

8 was denied access to an administrative appeal and to the state
9 courts.
10

As previously discussed, his claim concerning the absence of

11 compliance with state law governing administrative proceedings
12 should be dismissed.

To the extent Petitioner complains of a

13 resulting limitation of access to state court remedies, his claim is
14 not cognizable in this proceeding.

Hubbart v. Knapp, 379 F.3d 773,

15 779 (9th Cir. 2004); see also Ortiz v. Stewart, 149 F.3d 923, 939
16 (9th Cir. 1998); Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir.
17 1997).
18

Petitioner may be attempting to set forth a claim that state

19 officials actively interfered with an effort to prepare or file
20 legal documents in violation of his right of meaningful access to
21 the courts.

See Lewis v. Casey, 518 U.S. 343, 350 (1996).

However,

22 such a claim does not entitle Petitioner to relief in in this
23 proceeding.

A federal court may only grant a state prisoner’s

24 petition for writ of habeas corpus if the petitioner can show that
25 "he is in custody in violation of the Constitution or laws or
26 treaties of the United States."

28 U.S.C. § 2254(a).

A habeas

27 corpus petition is the correct method for a prisoner to challenge
28 the legality or duration of his confinement.
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Badea v. Cox, 931 F.2d

1 573, 574 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S.
2 475, 485 (1973)); Advisory Committee Notes to Habeas Rule 1, 1976
3 Adoption.

In contrast, a civil rights action pursuant to 42 U.S.C.

4 § 1983 is the proper method for a prisoner to challenge the
5 conditions of that confinement.

McCarthy v. Bronson, 500 U.S. 136,

6 141 42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574;
7 Advisory Committee Notes to Habeas Rule 1, 1976 Adoption.
8

Here, Petitioner’s claim concerning access to the courts has no

9 conceivable effect on the duration of his confinement; it concerns
10 only the conditions of his confinement.
11 in this proceeding.

Thus, it is not cognizable

It will be recommended that the claim be

12 dismissed without leave to amend.
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VII.

Certificate of Appealability

14

Unless a circuit justice or judge issues a certificate of

15 appealability, an appeal may not be taken to the Court of Appeals
16 from the final order in a habeas proceeding in which the detention
17 complained of arises out of process issued by a state court.

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18 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
19 (2003).

A district court must issue or deny a certificate of

20 appealability when it enters a final order adverse to the applicant.
21 Habeas Rule 11(a).
22

A certificate of appealability may issue only if the applicant

23 makes a substantial showing of the denial of a constitutional right.
24 ' 2253(c)(2).

Under this standard, a petitioner must show that

25 reasonable jurists could debate whether the petition should have
26 been resolved in a different manner or that the issues presented
27 were adequate to deserve encouragement to proceed further.

Miller-

28 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
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1 473, 484 (2000)).

A certificate should issue if the Petitioner

2 shows that jurists of reason would find it debatable whether: (1)
3 the petition states a valid claim of the denial of a constitutional
4 right, and (2) the district court was correct in any procedural
5 ruling.
6

Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

In determining this issue, a court conducts an overview of the

7 claims in the habeas petition, generally assesses their merits, and
8 determines whether the resolution was debatable among jurists of
9 reason or wrong.

Id.

An applicant must show more than an absence

10 of frivolity or the existence of mere good faith; however, the
11 applicant need not show that the appeal will succeed.

Miller-El v.

12 Cockrell, 537 U.S. at 338.
13

Here, it does not appear that reasonable jurists could debate

14 whether the petition should have been resolved in a different
15 manner.

Petitioner has not made a substantial showing of the denial

16 of a constitutional right.

Accordingly, it will be recommended that

17 the Court decline to issue a certificate of appealability.
18

VIII.

Recommendations

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Based on the foregoing, it is RECOMMENDED that:

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1)

The petition for writ of habeas corpus be DISMISSED without

21 leave to amend for failure to state a cognizable claim;
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2)

The Court DECLINE to issue a certificate of appealability;

3)

The Clerk be DIRECTED to close the case because dismissal

23 and
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25 would terminate the proceeding in its entirety.
26

These findings and recommendations are submitted to the United

27 States District Court Judge assigned to the case, pursuant to the
28 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local
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1 Rules of Practice for the United States District Court, Eastern
2 District of California.

Within thirty (30) days after being served

3 with a copy, any party may file written objections with the Court
4 and serve a copy on all parties.

Such a document should be

5 captioned AObjections to Magistrate Judge=s Findings and
6 Recommendations.@

Replies to the objections shall be served and

7 filed within fourteen (14) days (plus three (3) days if served by
8 mail) after service of the objections.

The Court will then review

9 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C).
10 The parties are advised that failure to file objections within the
11 specified time may result in the waiver of rights on appeal.
12 Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing
13 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
14
15 IT IS SO ORDERED.
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Dated:

February 19, 2015

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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