Rodriquez v. Swarthout
ORDER signed by Senior Judge James K. Singleton on 2/9/12; IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus is DENIED. IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability. Any further request for a Certificate of Appealability must be addressed to the Court of Appeals. The Clerk of the Court is to enter judgment accordingly. Civil Case Terminated. CASE CLOSED.(Matson, R)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
GARY SWARTHOUT, Warden, California
State Prison, Solano,
Nahu Rodriquez, a state prisoner appearing pro se, filed a Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2254. Rodriquez is currently in the custody of the California
Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano.
Respondent has answered, and Rodriquez has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Following his conviction upon the entry of a guilty plea to one count of attempted murder
under California Penal Code §§ 664/187 with enhancements for the use of a firearm under
California Penal Code §§ 12022d and 12022.7, in March 1996 Rodriquez was sentenced in the
Stanislaus County Superior Court to a prison term of life with the possibility of parole plus four
years. Rodriquez does not challenge his conviction and sentence in this proceedings.
In October 2008 Rodriquez was charged in a Rules Violation Report (“RVR”) of
possession of contraband, specifically a cell phone and charger in violation of prison regulations.1
After a hearing before a Senior Hearing Officer (“SHO”), Rodriquez was found guilty and
Cal. Code Regs., tit. 15, § 3006(c)(16).
assessed as thirty-day loss of good-time credits. Upon completion of the administrative appeals
process,2 Rodriquez timely filed a petition for habeas relief in the Solano County Court, which
denied Rodriquez’s petition in an unreported, reasoned decision. The California Court of
Appeal, Third Appellate District, summarily denied Rodriquez’s habeas petition, citing
Superintendent v. Hill, 472 U.S. 445 (1985), and In re Zepeda, 47 Cal. Rptr. 3d 172 (2006).
Rodriquez’s subsequent petition to the California Supreme Court was summarily denied without
opinion or citation to authority on February 24, 2010. Rodriquez timely filed his Petition for
relief in this Court on May 17, 2010.
The facts underlying Rodriquez’s conviction, as stated in the RVR:
On 10-29-06, at approximately 2315 hours, while conducting my duties as
Facility IV S & E, as directed by Facility IV Sergeant Stubbs, I conducted a search
of Inmate Rodriquez (K00152), bed area 21-0-5L. I found a Metro PCS Cellphone
with a charger. The cellphone and charger was discovered on the corner of 21-0-5L
bunk against the wall.3
II. GROUNDS RAISED/DEFENSES
In his Petition, Rodriquez raises a single ground: that the finding that the cell phone was
his is not supported by any evidence. Respondent raises no affirmative defense.4
Prisoner disciplinary actions are subject to internal administrative review at the
institutional and departmental levels. Cal. Code Regs., tit. 15, §§ 3084.1, 3084.2, 3084.7,
Docket No. 11-3 at 13.
Rules Governing Section 2254 Cases in the U.S. Dist. Courts, Rule 5(b) (2011).
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States” at the time the state court renders its decision or “was based
on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.”5 The Supreme Court has explained that “clearly established Federal law” in
§ 2254(d)(1) “refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the
time of the relevant state-court decision.”6 The holding must also be intended to be binding upon
the states; that is, the decision must be based upon constitutional grounds, not on the supervisory
power of the Supreme Court over federal courts.7 Thus, where holdings of the Supreme Court
regarding the issue presented on habeas review are lacking, “it cannot be said that the state court
‘unreasonabl[y] appli[ed] clearly established Federal law.’”8 When a claim falls under the
“unreasonable application” prong, a state court’s application of Supreme Court precedent must
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402-06 (2000); see also Lockyer
v. Andrade, 538 U.S. 63, 70-75 (2003) (explaining this standard).
Williams, 529 U.S. at 412 (alteration added).
Early v. Packer, 537 U.S. 3, 10 (2002).
Carey v. Musladin, 549 U.S. 70, 77 (2006) (alterations in original) (citation omitted);
see also Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam); Kessee v. MendozaPowers, 574 F.3d 675, 678-79 (9th Cir. 2009); Moses v. Payne, 555 F.3d 742, 753-54 (9th Cir.
2009) (explaining the difference between principles enunciated by the Supreme Court that are
directly applicable to the case and principles that must be modified in order to be applied to the
case; the former are clearly established precedent for purposes of § 2254(d)(1), the latter are not).
be “objectively unreasonable,” not just “incorrect or erroneous.”9 The Supreme Court has made
clear that the objectively unreasonable standard is “a substantially higher threshold” than simply
believing that the state-court determination was incorrect.10 “[A]bsent a specific constitutional
violation, federal habeas corpus review of trial error is limited to whether the error ‘so infected
the trial with unfairness as to make the resulting conviction a denial of due process.’”11 In a
federal habeas proceeding, the standard under which this Court must assess the prejudicial
impact of constitutional error in a state court criminal trial is whether the error had a substantial
and injurious effect or influence in determining the outcome.12 Because state court judgments of
conviction and sentence carry a presumption of finality and legality, the petitioner has the burden
of showing by a preponderance of the evidence that he or she merits habeas relief.13
The Supreme Court recently underscored the magnitude of the deference required:
As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on
federal court relitigation of claims already rejected in state proceedings. Cf.
Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996)
(discussing AEDPA’s “modified res judicata rule” under § 2244). It preserves
authority to issue the writ in cases where there is no possibility fairminded jurists
could disagree that the state court’s decision conflicts with this Court’s
precedents. It goes no farther. Section 2254(d) reflects the view that habeas
corpus is a “guard against extreme malfunctions in the state criminal justice
Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (internal quotation marks and citations
Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410).
Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 642, 643 (1974)).
Fry v. Pliler, 551 U.S. 112, 121 (2007) (adopting the standard set forth in Brecht v.
Abrahamson, 507 U.S. 619, 637-38 (1993)).
Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (citations omitted); see Wood v.
Bartholomew, 516 U.S. 1, 8 (1995) (per curiam) (stating that a federal court cannot grant “habeas
relief on the basis of little more than speculation with slight support”).
systems,” not a substitute for ordinary error correction through appeal. Jackson v.
Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens,
J., concurring in judgment). As a condition for obtaining habeas corpus from a
federal court, a state prisoner must show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.14
In applying this standard, this Court reviews the “last reasoned decision” by the state
court.15 State appellate court decisions that summarily affirm a lower court’s opinion without
explanation are presumed to have adopted the reasoning of the lower court.16 This Court gives
the presumed decision of the state court the same AEDPA deference that it would give a
reasoned decision of the state court.17
Under California’s unique habeas procedure, a prisoner who is denied habeas relief in the
superior court files a new original petition for relief in the court of appeal. If denied relief by the
Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011) (emphasis added).
Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297
F.3d 911, 918 (9th Cir. 2002)); cf. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991) (explaining
“how federal courts in habeas proceedings are to determine whether an unexplained order . . .
rests primarily on federal law,” and noting that federal courts must start by examining “the last
reasoned opinion on the claim . . . . ”).
Ylst, 501 U.S. at 802-03 (“Where there has been one reasoned state judgment rejecting
a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest
upon the same ground.”); cf. Richter, 131 S. Ct. at 784 (“As every Court of Appeals to consider
the issue has recognized, determining whether a states court’s decision resulted from an
unreasonable legal or factual conclusion does not require that there be an opinion from the state
court explaining the state court’s reasoning.”).
See Richter, 131 S. Ct. at 784-85 (rejecting the argument that a summary disposition
was not entitled to § 2254(d) deference).
court of appeal, the defendant has the option of either filing a new original petition for habeas
relief or a petition for review of the court of appeal’s denial in the California Supreme Court.18
This is considered as the functional equivalent of the appeal process.19
Availability of Habeas Relief
Respondent previously moved to dismiss the Petition on the grounds that, because
Rodriquez is serving an indeterminate term of life with the possibility of parole, under California
law he is ineligible to earn good-time credits. Therefore, Respondent contended that the
disciplinary action had no impact on Rodriquez’s sentence and was not properly brought in a
habeas proceeding.20 This Court, adopting the Findings and Recommendations of the magistrate
judge, denied the motion.21 In his answer Respondent again raises the same issue. Under the law
of the case doctrine a court is generally precluded from reconsidering an issue that has already
been decided by the same court or a higher court in the same case.22 The law of the case
doctrine, however, is not a shackle without a key. As long as a district court retains jurisdiction
over a case, it has inherent power to reconsider and modify an interlocutory order for sufficient
cause.23 That inherent power is not unfettered: a court may depart from the law of the case
See Carey v. Saffold, 536 U.S. 214, 221-22 (2002) (citations omitted) (discussing
California’s “original writ” system).
See id. at 222 (“Thus, typically a prisoner will seek habeas review in a lower court and
later seek appellate review in a higher court . . . .”).
Docket No. 11.
Docket No. 19.
Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993).
City of Los Angeles, Harbor Div. v. Santa Monica, 254 F.3d 882, 885 (9th Cir. 2001).
doctrine where: “(1) the decision is clearly erroneous and its enforcement would work a manifest
injustice, (2) intervening controlling authority makes reconsideration appropriate, or (3)
substantially different evidence was adduced at a subsequent trial.”24 Respondent has provided
no basis for this Court to reconsider its previous Order.
At the conclusion of the disciplinary hearing, the SHO made the following findings:
Inmate found GUILTY of a Division F charge based upon a preponderance of the
evidence which substantiates the charge of CCR §3006(c)(16), with the specific act
of “CONTRABAND–POSS. OF A CELL PHONE.” This evidence includes:
The Reporting Employee’s Report, dated 10-129-08, authored by C/O
M. Shergill, which states in part: “I conducted a search of inmate
Rodriquez (K-00152), be3d area 21-0-5L. I found a Metro PCS
Cellphone with a charger. The cellphone and charger was discovered
on the corner of the 21-0-5L bunks against the wall.”
The SHO doesn’t find inmate Lopez’s testimony to be credible.
Inmate Lopez stated he did not slide the phone down the wall until he
saw the Officer’s [sic] approaching. Inmate Lopez’s bunk was in full
view of Officer Shergill as he approached because the wall he
claimed to have slid the phone down is approximately six inches
below the top bunk. Inmate Lopez would have had to reach down
below the bottom of his bunk in full view of the Officer to slide the
phone and charger along the wall. The SHO doesn’t find Inmate
Lopez [sic] testimony credible that he only disposed of one of the
phones he claimed to have in his possession when he saw the
Officer’s [sic] coming while maintaining possession of the second
phone until he was searched.
CONSTRUCTIVE POSSESSION: Means anything that you have
under your domain or control. The contraband was discovered on
Rodriquez’s bed, which was in his immediate control.25
Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir. 1997) (en banc) (footnote omitted)
(internal quotation marks omitted), overruled on other grounds by Lindh v. Murphy, 521 U.S.
320 (1997); see Leslie Salt Co. v. United States, 55 F.3d 1388, 1393 (9th Cir. 1995); Sch. Dist.
No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
Docket No. 11-3 at 15.
Rodriquez contends that, because his cell-mate admitted ownership of the cell phone and
there was no direct evidence that the cell phone belonged to Rodriquez, there was insufficient
evidence to support the SHO’s finding. In particular, Rodriquez argues that the SHO failed to
establish that: (1) Rodriquez’s prints were on the phone; (2) Rodriquez’s family phone number
was on the call log; (3) Rodriquez was one of the inmates that Lopez was renting cell phones to;
(4) Lopez was not the sole owner of both cell phones, as Lopez admitted, with certainty and
beyond a reasonable doubt; and (5) Lopez was not telling the truth with certainty and beyond a
reasonable doubt that. The Solano County Court rejected Rodriquez’s arguments, holding:
Petitioner has failed to state a prima facie case for relief on any of his claims.
(People v, Duvall (1995) 9 Cal 4th 464, 475.) Petitioner argues insufficient evidence
supports his finding of guilty. The Court must uphold the disciplinary guilt finding
if some evidence supports it. (In re Zepeda (2006) 141 Cal App 4th 1493, 1498.)
There is sufficient evidence supporting the finding of guilt.26
The California Court of Appeal also denied Rodriquez relief without opinion, but cited
Superintendent v. Hill, 472 U.S. 445 (1985), in addition to In re Zepeda, 47 Cal. Rptr. 3d 172
Rodriquez misperceives the role of this Court in a federal habeas proceeding challenging
a prison disciplinary action. The applicable constitutional standard by which federal habeas
courts are bound in reviewing state prisoner disciplinary findings is whether “there is any
evidence in the record that could support the conclusion reached by the disciplinary board.”28
This standard does not require that the court independently assess the credibility of the witnesses
Docket No. 11-4 at 2.
Docket No. 11-6 at 2.
Hill, 472 U.S. at 455-56 (emphasis added).
or re-weigh the evidence.29 Because a prison disciplinary proceeding “is not comparable to a
criminal conviction, . . . neither the amount of evidence necessary to support such a conviction,
. . . nor any other standard greater than some evidence applies in this context.”30
Here, Rodriquez’s arguments to the contrary notwithstanding, there was sufficient
evidence to establish constructive possession of the cell phone. Consequently this Court cannot
say that the decisions of the California Courts were “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
States” or were “based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.”31
Id. at 455.
Id. at 456 (citations omitted).
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402-06 (2000); see also
Lockyer v. Andrade, 538 U.S. 63, 70-75 (2003) (explaining this standard).
V. CONCLUSION AND ORDER
Rodriquez is not entitled to relief.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability.32 Any further request for a Certificate of Appealability must be addressed to the
Court of Appeals.33
The Clerk of the Court is to enter judgment accordingly.
Dated: February 9, 2012.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
United States District Judge
28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain a
certificate of appealability a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El
v. Cockrell, 537 U.S. 307, 327 (2003))).
See Fed. R. App. P. 22(b); Ninth Circuit R. 22-1.
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