Dennis v. Davey

Filing 16

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jennifer L. Thurston on 10/4/2017 recommending that 1 Petition for Writ of Habeas Corpus be denied. Referred to Judge Dale A Drozd; Objections to F&R due by 10/30/2017. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MATTHEW DENNIS, 12 Case No. 1:17-cv-00529-DAD-JLT (HC) Petitioner, 13 v. 14 FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS DAVE DAVEY, 15 Respondent. 16 Petitioner is currently in custody of the California Department of Corrections and 17 18 Rehabilitation at California State Prison (“CSP”), Corcoran, California. He has filed a petition 19 for writ of habeas corpus challenging a disciplinary action taken against him for battery on an 20 inmate. Petitioner claims the evidence was insufficient and he was denied his due process rights. 21 Respondent claims that Petitioner was afforded all the procedural and substantive due process 22 rights to which he was entitled. The Court will recommend1 the petition be DENIED. 23 I. BACKGROUND 24 1 In his Traverse, Petitioner states he filed a decline to the jurisdiction of the magistrate judge. He believes that 25 despite his decline, the case has been assigned solely to the undersigned. Petitioner is incorrect. Petitioner declined to have a magistrate judge take full jurisdiction over the case pursuant to 28 U.S.C. § 636(c). Nevertheless, pursuant 26 to 28 U.S.C. § 636(b), the District Court has the authority to designate a magistrate judge to hear and determine all pretrial matters and to submit findings and recommendations for the disposition of the case. In this matter, the 27 undersigned was designated to determine non-dispositive matters and to submit findings and recommendations concerning dispositive matters. Thus, these findings and recommendations are issued pursuant to the District 28 Court’s designation. See 28 U.S.C. § 636(b)(1)(B). 1 Petitioner is serving a sentence of 12 years in prison for his 2014 convictions for second 1 2 degree robbery and petty theft. (Doc. 12-1 at 2.2) On April 7, 2017, Petitioner filed a federal 3 petition for writ of habeas corpus in this Court. He does not challenge his conviction, but a 4 disciplinary proceeding held on December 19, 2014, in which he was found guilty of battery on 5 an inmate with a weapon with a nexus to security threat group behavior in violation of Cal. Code 6 Regs., title 15, Sec. 3005(d)(1). (Doc. 12-2 at 34.) On July 7, 2017, Respondent filed an answer to the petition. (Doc. 12.) On September 7 8 26, 2017, Petitioner filed a traverse to Respondent’s answer. (Doc. 15.) 9 II. DISCUSSION 10 A. Jurisdiction 11 Relief by way of a petition for writ of habeas corpus extends to a person in custody 12 pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or 13 treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 14 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as 15 guaranteed by the United States Constitution. Although the challenged disciplinary proceeding 16 occurred at High Desert State Prison in Susanville, California, at the time of filing of the petition 17 Petitioner was housed at the CSP, which is located within the jurisdiction of this Court. 28 18 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d). On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 19 20 of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its 21 enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th 22 Cir. 1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (holding the AEDPA 23 only applicable to cases filed after statute’s enactment). The instant petition was filed after the 24 enactment of the AEDPA and is therefore governed by its provisions. Factual Background3 25 B. 26 On November 19, 2014, Officer Nakken witnessed three inmates begin to strike each 27 2 28 3 Page references are to ECF pagination. The factual background is derived from the Rules Violation Report. (Doc. 12-2 at 34.) 2 1 other in the head and upper torso area in the dayroom. The inmates involved were later 2 identified by their state I.D. cards as inmates Ashley, Groom, and Dennis (Petitioner). Officer 3 Nakken yelled for the inmates to “Get down!” All non-involved inmates immediately took a seat 4 on the ground, but Petitioner, inmate Ashley, and inmate Groom ignored the order and continued 5 to fight. Officer Nakken again yelled, “Get down,” and this time the three inmates separated 6 from each other. Inmates Ashley and Groom went to the right and Petitioner went to the left. 7 Officer Nakken first turned to Ashley who had remained in a fighting stance. Officer 8 Nakken ordered Ashley to get down but Ashley would not comply, so Officer Nakken deployed 9 pepper spray to Ashley’s face and he immediately got down to a prone position on the ground. 10 Nakken turned to inmate Groom who was also in a bladed fighting stance. Nakken ordered 11 Groom to get down to the ground but Groom refused and remained in a fighting position. 12 Nakken utilized his pepper spray on Groom and Groom immediately got down to the ground in a 13 prone position. 14 Finally, Nakken turned to Petitioner who looked like he was about the charge the other 15 inmates. Since Petitioner posed an immediate threat to the other two inmates, Nakken utilized 16 pepper spray on Petitioner. Petitioner immediately got down to a prone position. All three 17 inmates were then handcuffed and searched with negative results for contraband. Inmate Groom 18 sustained puncture wounds consistent with an inmate-manufactured stabbing weapon. 19 A subsequent review of the inmates’ files showed that Groom was a member of the 20 “Bloods” security threat group, and Petitioner was a member of the “Peckerwood” security threat 21 group. 22 C. Legal Standard of Review 23 A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless 24 the petitioner can show that the state court’s adjudication of his claim: (1) resulted in a decision 25 that was contrary to, or involved an unreasonable application of, clearly established Federal law, 26 as determined by the Supreme Court of the United States; or (2) resulted in a decision that “was 27 based on an unreasonable determination of the facts in light of the evidence presented in the 28 State court proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); 3 1 Williams, 529 U.S. at 412-413. 2 A state court decision is “contrary to” clearly established federal law “if it applies a rule 3 that contradicts the governing law set forth in [the Supreme Court’s] cases, or “if it confronts a 4 set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a 5 different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 4056 406). 7 In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that 8 an “unreasonable application” of federal law is an objective test that turns on “whether it is 9 possible that fairminded jurists could disagree” that the state court decision meets the standards 10 set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable 11 application of federal law is different from an incorrect application of federal law.’” Cullen v. 12 Pinholster, 563 U.S. 170, 203 (2011). Thus, a state prisoner seeking a writ of habeas corpus 13 from a federal court “must show that the state court’s ruling on the claim being presented in 14 federal court was so lacking in justification that there was an error well understood and 15 comprehended in existing law beyond any possibility of fairminded disagreement.” Harrington, 16 562 U.S. at 103. 17 The second prong pertains to state court decisions based on factual findings. Davis v. 18 Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). 19 Under § 2254(d)(2), a federal court may grant habeas relief if a state court’s adjudication of the 20 petitioner’s claims “resulted in a decision that was based on an unreasonable determination of the 21 facts in light of the evidence presented in the State court proceeding.” Wiggins v. Smith, 539 22 U.S. 510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court’s 23 factual finding is unreasonable when it is “so clearly incorrect that it would not be debatable 24 among reasonable jurists.” Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 99925 1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004). 26 To determine whether habeas relief is available under § 2254(d), the federal court looks 27 to the last reasoned state court decision as the basis of the state court’s decision. See Ylst v. 28 Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 4 1 2004). “[A]lthough we independently review the record, we still defer to the state court’s 2 ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). 3 The prejudicial impact of any constitutional error is assessed by asking whether the error 4 had “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. 5 Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007) 6 (holding that the Brecht standard applies whether or not the state court recognized the error and 7 reviewed it for harmlessness). 8 D. Due Process in Prison Disciplinary Hearings 9 Under the Fourteenth Amendment, no state shall deprive any person of life, liberty, or 10 property without due process of law. Prisoners retain their right to due process subject to the 11 restrictions imposed by the nature of the penal system. Wolff v. McDonnell, 418 U.S. 539, 556 12 (1974). A prisoner in a prison disciplinary hearing is not entitled to the full array of due process 13 rights that a defendant possesses in a criminal prosecution. Id. at 556. However, a prisoner who 14 is accused of a serious rules violation and who may be deprived of his or her good-time credits is 15 entitled to certain minimum procedural protections. Id. at 571-71 n. 9. Nevertheless, a 16 prisoner’s due process rights are moderated by the “legitimate institutional needs” of a prison. 17 Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (citing Superintendent, Mass. Corr. Inst. 18 v. Hill, 472 U.S. 445, 454-455 (1984)). 19 The process due in such a prison disciplinary hearing includes: (1) written notification of 20 the charges; (2) at least a brief period of time after the notice to prepare for the hearing; (3) a 21 written statement by the fact-finder as to the evidence relied on and reasons for the disciplinary 22 action; and (4) the inmate facing the charges should be allowed to call witnesses and present 23 documentary evidence in his defense when permitting him to do so will not be unduly hazardous 24 to institutional safety or correctional goals. Wolff, 418 U.S. at 564, 566, 570. 25 In addition, a decision to revoke an inmate’s good-time credit does not comport with 26 minimum procedural due process requirements unless its underlying findings are supported by 27 “some evidence.” Hill, 472 U.S. at 454. In reviewing a decision for “some evidence,” courts 28 “are not required to conduct an examination of the entire record, independently assess witness 5 1 credibility, or weigh the evidence, but only determine whether the prison disciplinary board’s 2 decision to revoke good time credits has some factual basis.” Id. at 455-56. The Ninth Circuit 3 has further held that there must be “some indicia of reliability of the information that forms the 4 basis for prison disciplinary actions.” Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987) 5 (uncorroborated hearsay statement of confidential informant with no firsthand knowledge is not 6 enough evidence to meet Hill standard.) 7 E. Analysis 8 In this case, the Lassen County Superior Court denied Petitioner’s claims in the last 9 reasoned state court decision, concluding: “No facts are alleged in the petition which 10 demonstrate any deficiency of due process.” (Doc. 12-2 at 2.) 11 Upon review of the record, it appears undisputed that Petitioner received written 12 notification of the charges within the time frame required by state law. (Doc. 12-2 at 34.) 13 Similarly, it appears uncontroverted that he had a period of approximately 24 days from the date 14 of issuance of the Rules Violation Report until the disciplinary hearing, thus affording him ample 15 opportunity to prepare a defense. Third, a written statement was issued by the fact-finder as to 16 the evidence relied on and reasons for the disciplinary action. 17 Petitioner argues, however, that he was denied the opportunity to call a key witness and 18 to present documentary evidence. He claims he requested that Officer Rigling be called to testify 19 to confidential statements that he had taken from Petitioner and other inmates, but the Senior 20 Hearing Officer, Lt. Harper, denied the request. He further claims that his requests to produce 21 and view photographs and confidential memoranda were denied. 22 Prisoners have a limited right to call witnesses and to present documentary evidence, 23 when doing so would not unduly threaten institutional safety and goals. Wolff, 418 U.S. at 56324 66. Petitioner contends he was unable to produce photographs which would have shown he 25 didn’t participate in the attack. There is no indication that Petitioner attempted to introduce 26 photographs. No video of the incident existed, and it appears there were photographs, but they 27 depicted the injuries sustained by the participants and their approximate locations during the 28 incident. There does not appear to be any photographic evidence which would have been 6 1 exculpatory, nor does Petitioner point to any. 2 The record also shows that the Rules Violation Report relied on confidential information 3 therefore, a CDC-1030 form was issued and provided to Petitioner on November 25, 2014, in 4 advance of the hearing. (Doc. 12-3 at 227-228.) The SHO considered the confidential 5 information and determined that there was reliable evidence that the incident was related to 6 security threat groups. (Doc. 12-3 at 228.) The information revealed that Petitioner and Inmate 7 Ashley were members of one security threat group, while Inmate Groom was a member of a rival 8 group. (Doc. 12-3 at 232.) The SHO concluded from this that the incident related to security 9 threat group behavior. Petitioner does not show that the confidential information was unreliable 10 or that the information would have been exculpatory as to the charge of battery. In any case, 11 there was substantial evidence of his involvement in the battery. The Court may not assess 12 witness credibility and reweigh the evidence. Pinholster, 563 U.S. at 181. 13 Petitioner asked to call Officers Nakken and Rigling as witnesses. The SHO called 14 Officer Nakken and asked the questions submitted by Petitioner. Nakken answered the 15 questions, and the SHO considered the answers. (Doc. 12-3 at 229.) However, Petitioner’s 16 request to call and question Rigling was denied. (Doc. 12-3 at 218.) Petitioner contends that 17 Rigling could have stated that he knew Petitioner was not involved in the incident. Petitioner 18 provides no factual basis for his assertion. On the contrary, the record shows that when Rigling 19 arrived at the scene, he assisted in securing and transporting Inmate Ashley to the program 20 office. (Doc. 12-3 at 195.) During his involvement, he witnessed Petitioner at the scene as one 21 of the participants. (Doc. 12-3 at 195.) Petitioner does not establish how his questioning of 22 Rigling concerning confidential memoranda would have shown that he was not involved in the 23 incident. Thus, the SHO reasonably found that the questions Petitioner wanted to ask Rigling 24 were not relevant to the charge of battery on an inmate. (Doc. 12-3 at 229.) 25 Petitioner also requests that the Court review the CDC-1030 confidential information 26 disclosure forms or prison memoranda in camera. Petitioner’s request must be denied. The 27 confidential information was not part of the prison disciplinary record that was reviewed by the 28 state courts, and Petitioner’s claims must be reviewed on the existing state court record. 7 1 Pinholster, 563 U.S. at 181. 2 Finally, Petitioner contends that the evidence was insufficient to show he was an active 3 participant in the battery. Nevertheless, the record provides at least some evidence that he was. 4 Several officers provided statements that they observed Petitioner, Inmate Ashley, and Inmate 5 Groom fighting and striking each other during the altercation. (Doc. 12-3 at 231-232.) When all 6 of the inmates were told to get down, only Petitioner, Ashley, and Groom remained standing and 7 were seen fighting each other. (Doc. 12-3 at 232.) All three inmates sustained visible physical 8 injuries, including Petitioner. (Doc. 12-3 at 232.) All three inmates were treated for pepper 9 spray exposure. (Doc. 12-3 at 232.) Inmate Groom suffered puncture wounds to his left side 10 consistent with an inmate-manufactured stabbing weapon. (Doc. 12-3 at 232.) The state court 11 noted this evidence and reasonably concluded that some evidence supported the charge. 12 As such, the Court concludes that all of the basic due process requirements were met in 13 this case, thus precluding any finding that habeas relief is justified. Wolff, 418 U.S. at 554, 556, 14 570. 15 III. RECOMMENDATION 16 Accordingly, the Court RECOMMENDS that the petition for writ of habeas corpus be 17 DENIED with prejudice on the merits. 18 This Findings and Recommendation is submitted to the United States District Court 19 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and 20 Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of 21 California. Within twenty-one days after being served with a copy, any party may file written 22 objections with the court and serve a copy on all parties. Such a document should be captioned 23 “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the objections 24 shall be served and filed within ten court days after service of the objections. The Court will 25 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). 26 /// 27 /// 28 /// 8 1 The parties are advised that failure to file objections within the specified time may waive 2 the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 5 IT IS SO ORDERED. Dated: October 4, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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