Tapia v. California Department of Corrections & Rehabilitation

Filing 13

FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus be DENIED re 1 Petition for Writ of Habeas Corpus filed by Gerardo Tapia ; referred to Judge Ishii,signed by Magistrate Judge Erica P. Grosjean on 08/18/2017. Objections to F&R due by 9/21/2017 (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GERARDO TAPIA, Petitioner, 12 FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS v. 13 14 Case No. 1:17-cv-00559-AWI-EPG-HC CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, 15 Respondent. 16 17 18 Petitioner Gerardo Tapia is a state prisoner proceeding pro se with a petition for writ of 19 habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Petitioner challenges a prison 20 disciplinary proceeding in which he was found guilty of possessing inmate-manufactured 21 alcohol. 22 The undersigned recommends denial of the petition because the state court’s denial of 23 habeas relief was not contrary to, or an unreasonable application of, clearly established federal 24 law. 25 I. 26 BACKGROUND 27 Petitioner currently is in the custody of the California Department of Corrections and 28 Rehabilitation (“CDCR”). According to the Rules Violation Report (“RVR”), on January 6, 1 1 2016, Correctional Officer P. Nkwocha conducted a random search of the cell occupied by 2 Petitioner and Inmate Yepez. Officer Nkwocha found under the bottom bunk a large, clear trash 3 bag filled with a liquid that appeared to be inmate manufactured alcohol. Officer Nkwocha asked 4 both Petitioner and Inmate Yepez to whom the alcohol belonged, and Yepez answered that the 5 alcohol was his. (ECF No. 11 at 30). 6 Petitioner was charged with possession of inmate manufactured alcohol in RVR Log No. 7 CCI-C-16-01-0006. (ECF No. 11 at 30). A disciplinary hearing was held on January 21, 2016. 8 Petitioner pleaded not guilty. (ECF No. 11 at 31). The Senior Hearing Officer (“SHO”) found 9 Petitioner guilty of possession of inmate manufactured alcohol, a Division C offense. Petitioner 10 was assessed 120-day credit forfeiture and 30-day loss of privileges. (ECF No. 11 at 32). 11 After administratively appealing the decision, Petitioner filed a petition for writ of habeas 12 corpus in the Kern County Superior Court. (ECF No. 11 at 13–49). The petition was denied on 13 December 5, 2016. (ECF No. 11 at 51–53). Thereafter, Petitioner filed a habeas petition in the 14 California Court of Appeal, Fifth Appellate District, which denied the petition on February 2, 15 2017 with citation to In re Zepeda, 141 Cal. App. 4th 1493, 1500 (Cal. Ct. App. 2006). (ECF No. 16 11 at 55–107). Finally, Petitioner filed a habeas petition in the California Supreme Court, which 17 summarily denied the petition on March 29, 2017. (ECF No. 11 at 109–28). 18 On April 21, 2017, Petitioner filed the instant federal petition for writ of habeas corpus. 19 (ECF No. 1). Respondent has filed an answer to the petition, and Petitioner has filed a traverse. 20 (ECF Nos. 11, 12). 21 II. 22 DISCUSSION 23 A. Standard of Review 24 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 25 of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its 26 enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th 27 Cir. 1997) (en banc). The instant petition was filed after the enactment of AEDPA and is 28 therefore governed by its provisions. 2 1 Under AEDPA, relitigation of any claim adjudicated on the merits in state court is barred 2 unless a petitioner can show that the state court’s adjudication of his claim: 3 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 4 5 6 7 28 U.S.C. § 2254(d); Davis v. Ayala, 135 S. Ct. 2187, 2198 (2015); Harrington v. Richter, 562 8 U.S. 86, 97–98 (2011); Williams v. Taylor, 529 U.S. 362, 413 (2000). Thus, if a petitioner’s 9 claim has been “adjudicated on the merits” in state court, “AEDPA’s highly deferential 10 standards” apply. Ayala, 135 S. Ct. at 2198. However, if the state court did not reach the merits 11 of the claim, the claim is reviewed de novo. Cone v. Bell, 556 U.S. 449, 472 (2009). 12 In ascertaining what is “clearly established Federal law,” this Court must look to the 13 “holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the 14 relevant state-court decision.” Williams, 529 U.S. at 412. In addition, the Supreme Court 15 decision must “‘squarely address[] the issue in th[e] case’ or establish a legal principle that 16 ‘clearly extend[s]’ to a new context to the extent required by the Supreme Court in . . . recent 17 decisions”; otherwise, there is no clearly established Federal law for purposes of review under 18 AEDPA and the Court must defer to the state court’s decision. Moses v. Payne, 555 F.3d 742, 19 754 (9th Cir. 2008) (alterations in original) (quoting Wright v. Van Patten, 552 U.S. 120, 125, 20 123 (2008)). 21 If the Court determines there is clearly established Federal law governing the issue, the 22 Court then must consider whether the state court’s decision was “contrary to, or involved an 23 unreasonable application of, [the] clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A 24 state court decision is “contrary to” clearly established Supreme Court precedent if it “arrives at 25 a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state 26 court decides a case differently than [the Supreme Court] has on a set of materially 27 indistinguishable facts.” Williams, 529 U.S. at 413. A state court decision involves “an 28 unreasonable application of[] clearly established Federal law” if “there is no possibility 3 1 fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme 2 Court’s] precedents.” Richter, 562 U.S. at 102. That is, a petitioner “must show that the state 3 court’s ruling on the claim being presented in federal court was so lacking in justification that 4 there was an error well understood and comprehended in existing law beyond any possibility for 5 fairminded disagreement.” Id. at 103. 6 If the Court determines that the state court decision was “contrary to, or involved an 7 unreasonable application of, clearly established Federal law,” and the error is not structural, 8 habeas relief is nonetheless unavailable unless it is established that the error “had substantial and 9 injurious effect or influence” on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) 10 (internal quotation mark omitted) (quoting Kotteakos v. United States, 328 U.S. 750, 776 11 (1946)). 12 AEDPA requires considerable deference to the state courts. The Court looks to the last 13 reasoned state court decision as the basis for the state court judgment. See Brumfield v. Cain, 14 135 S. Ct. 2269, 2276 (2015); Johnson v. Williams, 568 U.S. 289, 297 n.1 (2013); Ylst v. 15 Nunnemaker, 501 U.S. 797, 806 (1991). “When a federal claim has been presented to a state 16 court and the state court has denied relief, it may be presumed that the state court adjudicated the 17 claim on the merits in the absence of any indication or state-law procedural principles to the 18 contrary.” Richter, 562 U.S. at 99. Where the state court reaches a decision on the merits but 19 provides no reasoning to support its conclusion, a federal habeas court independently reviews the 20 record to determine whether habeas corpus relief is available under § 2254(d). Walker v. Martel, 21 709 F.3d 925, 939 (9th Cir. 2013). “Independent review of the record is not de novo review of 22 the constitutional issue, but rather, the only method by which we can determine whether a silent 23 state court decision is objectively unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th 24 Cir. 2003). The federal court must review the state court record and “must determine what 25 arguments or theories . . . could have supported, the state court’s decision; and then it must ask 26 whether it is possible fairminded jurists could disagree that those arguments or theories are 27 inconsistent with the holding in a prior decision of [the Supreme] Court.” Richter, 562 U.S. at 28 102. 4 1 B. Review of Claim 2 Petitioner argues that his rules violation should be expunged given that his cellmate 3 admitted that the alcohol was his. Petitioner raised this sufficiency of the evidence claim in all 4 three of his state habeas petitions. The Kern County Superior Court denied the claim in a 5 reasoned decision. (ECF No. 11 at 52). The California Court of Appeal, Fifth Appellate District 6 denied the petition with citation to In re Zepeda, 141 Cal. App. 4th 1493, 1500 (Cal. Ct. App. 7 2006). (ECF No. 11 at 107). The California Supreme Court summarily denied the petition. (ECF 8 No. 11 at 128). 9 Generally, federal courts “look through” summary denials and review the last reasoned 10 state court opinion. See Brumfield, 135 S. Ct. at 2276; Ylst, 501 U.S. at 806. Although 11 Respondent asserts that the Kern County Superior Court’s decision was the last reasoned 12 opinion, (ECF No. 11 at 7), the last reasoned opinion is the California Court of Appeal’s denial 13 of Petitioner’s state habeas petition with citation to Zepeda. See Curiel v. Miller, 830 F.3d 864, 14 870 (9th Cir. 2016) (en banc) (“We have no cause to treat a state court’s summary order with 15 citations as anything but a ‘reasoned’ decision, provided that the state court’s references reveal 16 the basis for its decision.”). 17 18 19 20 21 22 23 24 25 The portion of Zepeda cited by the California Court of Appeal states in pertinent part: Zepeda’s reliance on the evidence that supports his assertion not to have known about the razor blades, such as his cellmate’s acknowledgement of ownership and Zepeda’s own claim of innocence, does not change the analysis under Hill. Hill emphasizes that the reviewing court is not to engage in an “examination of the entire record” or “weighing of the [conflicting] evidence.” (Hill, supra, 472 U.S. at p. 455, 105 S.Ct. 2768.) Rather the narrow role assigned to the reviewing court is solely to determine whether there is “any evidence in the record that could support the conclusion reached by the disciplinary board.” (Id. at pp. 455–456, 105 S.Ct. 2768, italics added.) Here, there is such evidence, even if, as Zepeda contends, there is other evidence that supports his assertion of innocence. Consequently, the trial court erred in reversing the disciplinary action taken by the prison against Zepeda. 26 Zepeda, 141 Cal. App. 4th at 1500. 27 While the United States Constitution does not guarantee good time credit, an inmate has a 28 liberty interest in good time credit when a state statute provides such a right and delineates that it 5 1 is not to be taken away except for serious misconduct. Wolff v. McDonnell, 418 U.S. 539, 557 2 (1974) (“It is true that the Constitution itself does not guarantee good-time credit for satisfactory 3 behavior while in prison. But here the State itself has not only provided a statutory right to good 4 time but also specifies that it is to be forfeited only for serious misbehavior.”). Prisoners cannot 5 be entirely deprived of their constitutional rights, but their rights may be diminished by the needs 6 and objectives of the institutional environment. Id. at 555. Prison disciplinary proceedings are 7 not part of a criminal prosecution, so a prisoner is not afforded the full panoply of rights in such 8 proceedings. Id. at 556. Thus, a prisoner’s due process rights are moderated by the “legitimate 9 institutional needs” of a prison. Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (citing 10 Superintendent v. Hill, 472 U.S. 445, 454–55 (1984)). 11 In addition to various procedural requirements for disciplinary proceedings as set forth in 12 Wolff, due process requires that there be “some evidence” to support the disciplinary decision to 13 revoke good time credits. Hill, 472 U.S. at 454–55. “Ascertaining whether this standard is 14 satisfied does not require examination of the entire record, independent assessment of the 15 credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether 16 there is any evidence in the record that could support the conclusion . . . .” Id. at 455–56 17 (emphasis added). 18 Here, although Petitioner’s cellmate asserted that the alcohol belonged to him, the written 19 report of the incident provides that the alcohol, which emitted a strong odor, was located under 20 the lower bunk in Petitioner’s cell in an area easily accessible to both Petitioner and his cellmate. 21 “The Federal Constitution does not require evidence that logically precludes any conclusion but 22 the one reached by the disciplinary board.” Hill, 472 U.S. at 457. Thus, the Court finds that the 23 state court’s denial of Petitioner’s sufficiency of the evidence claim was not contrary to, or an 24 unreasonable application of, clearly established federal law. The Court must defer to the state 25 court’s decision. Accordingly, Petitioner is not entitled to habeas relief. 26 /// 27 /// 28 /// 6 1 III. 2 RECOMMENDATION 3 Accordingly, the undersigned HEREBY RECOMMENDS that the petition for writ of 4 habeas corpus be DENIED. 5 This Findings and Recommendation is submitted to the assigned United States District 6 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 7 Rules of Practice for the United States District Court, Eastern District of California. Within 8 THIRTY (30) days after service of the Findings and Recommendation, any party may file 9 written objections with the court and serve a copy on all parties. Such a document should be 10 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 11 objections shall be served and filed within fourteen (14) days after service of the objections. The 12 assigned United States District Court Judge will then review the Magistrate Judge’s ruling 13 pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within 14 the specified time may waive the right to appeal the District Court’s order. Wilkerson v. 15 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 16 Cir. 1991)). 17 18 19 IT IS SO ORDERED. Dated: August 18, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 7

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