Santos v. Holland

Filing 10

FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition for Writ of Habeas Corpus for Failure to State a Cognizable Claim, Decline to Issue a Certificate of Appealability, and Direct the Clerk to Close the Case; Objection Deadline: Thirty (30) Days signed by Magistrate Judge Sheila K. Oberto on 2/19/2015. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 3/26/2015. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 MATTA J. SANTOS,

Case No. 1:14-cv-01929-LJO-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 (D0C. 1),
DECLINE TO ISSUE A CERTIFICATE
OF APPEALABILITY, AND DIRECT
THE CLERK TO CLOSE THE CASE

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Petitioner,
v.

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15 K. HOLLAND,
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Respondent.

OBJECTIONS DEADLINE:
THIRTY (30) DAYS

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Petitioner is a state prisoner proceeding pro se and in forma

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

The matter has been referred to the Magistrate Judge

21 pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304.
22 Pending before the Court is the petition, which was filed on
23 December 5, 2014.
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I.

Screening the Petition

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

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

Lindh v.

28 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484,
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1 1499 (9th Cir. 1997).
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Rule 4 of the Rules Governing ' 2254 Cases in the United States

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

The

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

Habeas Rule 4;

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

Habeas Rule

10 2(c) requires that a petition 1) specify all grounds of relief
11 available to the Petitioner; 2) state the facts supporting each
12 ground; and 3) state the relief requested.

Notice pleading is not

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

Rule 4, Advisory

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

The Court may dismiss a petition for writ of habeas corpus

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

Advisory Committee Notes to Habeas Rule 8, 1976

24 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir.
25 2001).

However, a petition for habeas corpus should not be

26 dismissed without leave to amend unless it appears that no tenable
27 claim for relief can be pleaded were such leave granted.
28 Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
2

Jarvis v.

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Petitioner alleges he is an inmate of the California

2 Correctional Institution at Tehachapi, California (CCIT), serving a
3 life sentence.

(Pet., doc. 1 at 1, 22.)

Petitioner challenges the

4 forfeiture of 360 days of time credit that he suffered as a sanction
5 in a prison disciplinary proceeding in which Petitioner was found to
6 have battered an inmate with a weapon on October 9, 2010.
7 8-31.)

(Id. at

Petitioner raises the following claims in the petition: 1)

8 Petitioner’s Eighth Amendment right was violated when Petitioner was
9 deprived of the right to present witnesses and documentary evidence
10 at the disciplinary hearing without any explanation; 2) Petitioner’s
11 right to a fair hearing was violated by the failure of an
12 investigative employee to discover the unreliability of confidential
13 information relied upon by the adjudicator; 3) Petitioner’s
14 protected liberty interest and right to due process of law were
15 violated by the finding that Petitioner was guilty of the misconduct
16 because the evidence on which it was based was unreliable; and 4)
17 the state superior court erred in failing to grant Petitioner an
18 evidentiary hearing to determine the reliability of the confidential
19 information.

(Id. at 8-22.)

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II.

Background

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The reporting officer stated that a confidential informant

22 reported that on October 9, 2010, after Petitioner had approached
23 the victim, Torres, and had spoken with Torres briefly, Petitioner
24 slashed at his neck and chest with a weapon.

Petitioner ran to

25 another area, where he was battered by three other inmates in
26 retaliation for having attacked Torres.

(Pet., doc. 1 at 31.)

The

27 state court that issued a decision concerning the reliability of the
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1 confidential informant stated the confidential informant
2 incriminated himself.
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(Id. at 53.)

Although Torres apparently tried to hide his injuries and

4 stitched himself up, a medical examination of Torres’ body performed
5 the following day showed injuries consistent with the confidential
6 information, including two cuts on his neck and one cut on his right
7 front chest area.

(Id. at 32-35.)

All inmates and areas were

8 searched, but no weapon was found; no officer observed the stabbing
9 of Torres.

Torres stated that he had cut himself shaving.

At the

10 hearing, Petitioner said that he was playing soccer or was near the
11 canteen with his cellmate, Hernandez, and did not see the victim
12 that day.
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(Id. at 31-39, 53-55.)

The state court upheld as supported by some evidence the

14 hearing officer’s finding that Petitioner had battered inmate Torres
15 based on the confidential information, which incriminated the
16 confidential informant and was corroborated by the other three
17 inmates’ retaliatory attack on Petitioner.

The victim’s explanation

18 was rejected as inconsistent with the physical evidence, which
19 reflected multiple slashes on the neck and one on the chest which
20 did not correspond with the victim’s shaving story; it was also
21 understandable that the victim was reluctant to come forward.
22 at 53-61.)

(Id.

The information from the confidential informant met

23 state standards of reliability because it was self-incriminating; to
24 have revealed more information could have endangered the source.
25 (Id. at 60.)
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III.

Denial of Witnesses

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Petitioner contends his rights under the Eighth Amendment were

28 violated when Petitioner was deprived of the right to present
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1 witnesses and documentary evidence at the disciplinary hearing
2 without any explanation.
A.

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Factual Summary

The documentation attached to the petition reflects that

5 Petitioner initially requested the presence of the reporting
6 officer, Palmer; Officer Durazo; the three inmates Petitioner
7 alleged had assaulted him, including inmates Avila, Nava, and
8 Guerrero; the victim, Torres; and Petitioner’s cellmate, Hernandez.
9 (Pet., doc. 1 at 60-61.)
10 Palmer.

(Id. at 55.)

Petitioner waived the presence of Officer

The hearing officer questioned Torres and

11 Avila, who refused to answer any questions.
12 accomplished by telephone.

Other questioning was

Nava and Guerrero were questioned and

13 responded that neither saw any arguing between Petitioner and the
14 victim, Petitioner attacking another inmate, Petitioner holding a
15 weapon, or the victim bleeding; they denied seeing anything.

(Id.

16 at 60-61.) Neither Hernandez nor Officer Durazo saw any argument or
17 other contact between Petitioner and the victim.
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B.

(Id. at 61.)

Analysis

The Due Process Clause is the source of procedural protections

20 applicable to prison disciplinary hearings.

Procedural due process

21 requires that where the state has made conduct credit subject to
22 forfeiture only for serious misbehavior, prisoners subject to a loss
23 of conduct credits must be given advance written notice of the
24 claimed violation, a right to call witnesses and present documentary
25 evidence where it would not be unduly hazardous to institutional
26 safety or correctional goals, and a written statement of the finder
27 of fact as to the evidence relied upon and the reasons for
28 disciplinary action taken.

Wolff v. McDonnell, 418 U.S. 539, 563-64
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1 (1974).

If the inmate is illiterate, or the issue so complex that

2 it is unlikely that the inmate will be able to collect and present
3 the evidence necessary for an adequate comprehension of the case,
4 the inmate should have access to help from staff or a sufficiently
5 competent inmate designated by the staff.

However, confrontation,

6 cross-examination, and counsel are not required.

Wolff, 418 U.S. at

7 568-70.
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The right to call witnesses and to present evidence at a

9 disciplinary hearing is limited by the prison authorities= discretion
10 concerning undue hazards to institutional safety or correctional
11 goals.

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

The right to call

12 witnesses is circumscribed by the necessary mutual accommodation
13 between institutional needs and objectives and the provisions of the
14 Constitution that are of general application.

A disciplinary

15 authority may decline to allow an inmate to call a witness for
16 irrelevance, lack of necessity, or hazards presented in individual
17 cases.

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

A prison

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

See, Wolff v. McDonnell, 418

22 U.S. at 563-64; Ponte v. Real, 471 U.S. 491, 497-98 (1985); Neal v.
23 Shimoda, 131 F.3d 818, 831 (9th Cir. 1997); Zimmerlee v. Keeney, 831
24 F.2d 183, 187 (9th Cir. 1987).
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Here, the hearing officer questioned all requested witnesses

26 and was not responsible for the two inmates’ refusal to answer
27 questions.

There is no showing that questioning the other witnesses

28 by telephone was arbitrary or unreasonable under the circumstances,
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1 or that it had any effect on the fairness or integrity of the
2 proceedings.

In short, it does not appear that a specific request

3 of Petitioner to present specific evidence was denied.

This is not

4 a situation in which a duty to include an explanation in the record
5 arises from the denial of a specific request to present a witness.
6 Cf. Ponte v. Real, 471 U.S. at 497.
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In summary, with respect to his right to call witnesses and

8 produce evidence, Petitioner has not shown a denial of due process.
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IV.

Reliance on Information from a Confidential Informant

Petitioner raises several related claims concerning the use in

11 the disciplinary proceeding of information from a confidential
12 informant.
A.

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Investigative Employee’s Lack of Access

Petitioner alleges his right to a fair hearing was violated by

15 the failure of an investigative employee to discover the
16 unreliability of confidential information from an unidentified
17 informant that was relied upon by the reporting officer and hearing
18 officer.

Petitioner in effect argues that a staff assistant in the

19 form of an investigative employee acting on Petitioner’s behalf
20 should have been able to confront and interview the informant to
21 determine his reliability, which was critical to Petitioner’s
22 defense to the disciplinary charge.
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Access to information from confidential informants is a matter

24 intertwined with the security of the inmates and the institution
25 and, as such, is largely within the purview of the prison
26 administrators.

Here, considering the violent and retaliatory

27 nature of the conduct of the Petitioner and of the other inmates, it
28 was reasonable to apprehend danger to the source if additional
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1 information were revealed.

Further, more generally, as a policy

2 matter, granting the right to confront and interview confidential
3 informants to investigators acting on behalf of accused inmates
4 might well discourage informants from stepping forward.

The

5 confidential information was strongly corroborated by independent
6 evidence, including the injuries to the victim, the inconsistency of
7 the victim’s injuries with the victim’s explanation of how he was
8 injured, and Petitioner’s assault by three inmates in retaliation
9 for Petitioner’s slashing the victim.

The record also indicates

10 that the informant incriminated himself in the course of reporting
11 his information, which tends to indicate reliability.
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In sum, Petitioner has not shown how lack of his investigator’s

13 access to a confidential informant prejudiced him.

In general, a

14 failure to meet a prison guideline regarding a disciplinary hearing
15 would not alone constitute a denial of due process.
16 Carlson, 884 F.2d 1267, 1270 (9th Cir. 1989).

See Bostic v.

The Court notes that

17 several courts have concluded that to establish a denial of due
18 process of law, prejudice is generally required.

See Brecht v.

19 Abrahamson, 507 U.S. 619, 637 (1993) (proceeding pursuant to 28
20 U.S.C. § 2254); see also Tien v. Sisto, Civ. No. 2:07 cv-02436-VAP
21 (HC), 2010 WL 1236308, at *4 (E.D.Cal. Mar. 26, 2010) (recognizing
22 that while neither the United States Supreme Court nor the Ninth
23 Circuit Court of Appeals has spoken on the issue, numerous federal
24 Courts of Appeals, as well as courts in this district, have held
25 that a prisoner must show prejudice to state a habeas claim based on
26 an alleged due process violation in a disciplinary proceeding; see
27 also Smith v. United States Parole Commission, 875 F.2d 1361, 136828 69 (9th Cir. 1989); Standlee v. Rhay, 557 F.2d 1303, 1307-08 (9th
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1 Cir. 1977).

Petitioner has not shown that he was denied a fair

2 hearing.
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Accordingly, it will be recommended that the Court deny

4 Petitioner’s claim that barring investigative access to the
5 confidential informant violated his right to a fair hearing.
B.

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Challenge to the Sufficiency of the Evidence
Supporting the Disciplinary Finding

Petitioner alleges that his protected liberty interest and
right to due process of law were violated by the finding that he
was guilty of the misconduct because the evidence on which it was
based was unreliable.

Petitioner’s challenge appears to be

primarily to the use of the information from the confidential
informant.
Where conduct credits are a protected liberty interest, the
decision to revoke credits must be supported by some evidence in the
record.

Superintendent v. Hill, 472 U.S. 445, 454 (1985).

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).

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

The Constitution does

2 not require that the evidence logically preclude any conclusion
3 other than that reached by the disciplinary board; rather, there
4 need only be some evidence in order to ensure that there was some
5 basis in fact for the decision.

Superintendent v. Hill, 472 U.S. at

6 457.
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Here, although the confidential informant’s information was one

8 basis of the finding, the hearing officer relied on other
9 independent evidence.

The victim, who was obviously reluctant to

10 report his injuries let alone accuse another inmate of inflicting
11 them, suffered injuries consistent with the confidential report but
12 inconsistent with the victim’s own explanation.

Three inmates

13 assaulted Petitioner in apparent retaliation for his attack on the
14 victim.

Finally, the confidential informant’s information

15 incriminated the informant and thus was reliable according to
16 established state standards.

The decision was supported by some

17 evidence.
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Accordingly, it will be recommended that the Court deny

19 Petitioner’s due process challenge to the use of the confidential
20 information to support the disciplinary finding.
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C.

Failure to Afford Petitioner an Evidentiary Hearing

Petitioner argues that the state superior court erred in

23 failing to grant Petitioner an evidentiary hearing to determine the
24 reliability of the confidential informant.
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Petitioner appears to contend that pursuant to 28 U.S.C.

26 § 2254(d)(2), the state court’s conclusion was based on an
27 unreasonable determination of the facts in light of the evidence
28 presented in the state court proceeding.
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Section 2254(d)(2) applies

1 where the process of the state court is claimed to have been
2 defective.
3 2004).

Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir.

To determine that a state court’s fact finding process is

4 defective in some material way or non-existent, a federal habeas
5 court must be satisfied that any appellate court to whom the defect
6 is pointed out would be unreasonable in holding that the state
7 court’s fact finding process was adequate.

Taylor v. Maddox, 366

8 F.3d at 1000.
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Here, the record of the disciplinary proceeding itself

10 reflected that the confidential information was substantially
11 corroborated by physical evidence of the wounds to the victim and
12 the retaliatory assault on Petitioner.

It was not necessary for the

13 state court to engage in discovery or weigh the evidence because the
14 quantum of evidence required by due process was the relatively low
15 standard of “some evidence,” which the confidential informant’s
16 information and the independent corroborating evidence easily
17 satisfied.

It was not unreasonable for an appellate court to

18 conclude that the state’s fact finding process was adequate.
19 Accordingly, it will be recommended that the Court deny Petitioner’s
20 claim that the state court improperly failed to provide Petitioner
21 an evidentiary hearing on the issue of the reliability of the
22 confidential informant.
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In sum, Petitioner has not alleged facts that point to a real

24 possibility of constitutional error, and the documentation submitted
25 in support of the petition forecloses relief on Petitioner’s claims.
26 It will be recommended that the petition be dismissed without leave
27 to amend for failure to state a cognizable claim.
28 ///
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1

V.

Certificate of Appealability

2

Unless a circuit justice or judge issues a certificate of

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

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6 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
7 (2003).

A district court must issue or deny a certificate of

8 appealability when it enters a final order adverse to the applicant.
9 Rule 11(a) of the Rules Governing Section 2254 Cases.
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A certificate of appealability may issue only if the applicant

11 makes a substantial showing of the denial of a constitutional right.
12 ' 2253(c)(2).

Under this standard, a petitioner must show that

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

Miller-

16 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
17 473, 484 (2000)).

A certificate should issue if the Petitioner

18 shows that jurists of reason would find it debatable whether: (1)
19 the petition states a valid claim of the denial of a constitutional
20 right, and (2) the district court was correct in any procedural
21 ruling.
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Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

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

23 claims in the habeas petition, generally assesses their merits, and
24 determines whether the resolution was debatable among jurists of
25 reason or wrong.

Id.

An applicant must show more than an absence

26 of frivolity or the existence of mere good faith; however, the
27 applicant need not show that the appeal will succeed.
28 Cockrell, 537 U.S. at 338.
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Miller-El v.

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Here, it does not appear that reasonable jurists could debate

2 whether the petition should have been resolved in a different
3 manner.

Petitioner has not made a substantial showing of the denial

4 of a constitutional right.

Accordingly, it will be recommended that

5 the Court decline to issue a certificate of appealability.
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VI.

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

9 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 action because dismissal

11 and
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13 would terminate the proceeding in its entirety.
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These findings and recommendations are submitted to the United

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

Within thirty (30) days after being served

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

Such a document should be

21 captioned AObjections to Magistrate Judge=s Findings and
22 Recommendations.@

Replies to the objections shall be served and

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

The Court will then review

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

February 19, 2015

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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