Barboza v. Hill
Filing
16
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/07/11 recommending that petitioner's application for a writ of habeas corpus be denied. Referred to Judge Morrison C. England Jr. Objections due within 21 days. (Plummer, M)
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
ANTONIO BARBOZA, JR.
Petitioner,
FINDINGS AND RECOMMENDATIONS
vs.
12
13
No. CIV S-10-1769 MCE EFB P
Respondent.
11
R. HILL,
14
/
15
Petitioner is a state prisoner proceeding in propria persona with an application for a writ
16
17
of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a prison disciplinary
18
conviction that resulted from a rules violation report issued against him on June 13, 2007, while
19
he was imprisoned at Folsom State Prison. Petitioner seeks relief on due process grounds,
20
claiming that the evidence was insufficient to support his conviction for distribution of a
21
controlled substance (heroin). Upon careful consideration of the record and the applicable law,
22
the undersigned recommends that petitioner’s application for habeas corpus relief be denied.
23
I.
Background
On June 13, 2007, Correctional Officer A.S. Guzman wrote a rules violation report
24
25
charging petitioner with “distribution of a controlled substance (heroin),” in violation of Cal.
26
////
1
1
Code Regs. tit. 15, § 3016(c), a serious Division A-2 offense. Dckt. No. 11-1 at 12. Officer
2
Guzman alleged that:
3
4
5
6
On Wednesday, June 13, 2007, at approximately 0900 hours,
Investigative Services Unit (ISU) received a Controlled Substance
Analysis Report from the Sacramento County Laboratory of
Forensic Services containing the following results: The following
test was conducted; Froehide, gas chromatography/mass
spectrometry, Marquis, Mecke, the sample contained heroin
(discetylmorphine), net weight 2.77 grams. This test was initiated
based on the following:
7
8
9
10
On Thursday, May 17, 2007, at approximately 1040 hours,
Investigative Services Unit (ISU), at Folsom State Prison (FSP),
reported to the Triage Treatment Area, (TTA), in response to the
possible drug overdose of an inmate. Upon arriving at the TTA, I
identified the inmate as BARBOZA P-29628, housed in Cell
5/AA1-36. I immediately reported to inmate BARBOZA’s
assigned cell and conducted a cell search.
11
12
13
14
15
16
17
18
19
20
21
22
During the course of the search, I discovered on the shelf of a
locker, a brown substance, I suspected to be heroin, along with a
plastic spoon, which contained a small piece of cotton, which
appeared to be stained with heroin. The locker where I discovered
the heroin, contained Inmate BARBOZA’s personal property,
which included letters addressed to BARBOZA as well as a
package of medication with Inmate BARBOZA’s name and CDCR
number written on it. I photographed the suspected heroin, along
with the spoon and the medication package, showing Inmate
BARBOZA’s name. I placed the contraband into a latex glove and
secured it in my pocket. I completed the search, producing no
further contraband. At approximately 1300 hours, I reported to the
ISU Office to test the suspected heroin. The suspected heroin
weighed 3.0 grams inclusive with packaging. Utilizing the
Narcotics Identification Kit (NIK) test L, I tested a small amount
of the suspected heroin, which produced a green color change
indicating a presumptive positive result for heroin. This amount of
heroin is consistent with distribution of a controlled substance. I
photographed the heroin and processed it along with the
photographs into evidence per institutional procedures. I secured
the evidence into ISU evidence locker #3. Inmate BARBOZA is
not a participant in the Mental Health Program at Folsom
State Prison. Inmate BARBOZA’s TABE score is above 4.0.
23
24
25
26
Id. at 12-13. (emphasis in original.)
The disciplinary hearing on the rules violation report commenced on September 20,
2007. Id. at 14. Petitioner appeared before the Senior Hearing Officer, stated he was in good
2
1
health, acknowledged receipt of all reports to be used as evidence, and stated he was ready to
2
proceed with the hearing. Id. The charges against petitioner were read to him and he
3
acknowledged understanding those charges. Id. Petitioner pled not guilty and declined to make
4
a statement. Id. He did not call any witnesses. Id. However, in response to questions posed by
5
the Senior Hearing Officer, petitioner admitted that he overdosed on illegal narcotics and that the
6
narcotics in the cell belonged to him. Id. However, he stated the narcotics were “for personal
7
use.” Id.
8
9
Petitioner was found guilty of the charged offense of distribution of heroin. Id. The
decision was based on the rules violation report, petitioner’s partial admission to the charge at
10
the disciplinary hearing, and the contents of a supplemental report. Id. The supplemental report
11
contained answers to questions posed to Correctional Officer Guzman, as follows:
12
a) Q1: What is your professional experience? A1: 12 years as an
Officer at FSP. 3 years as an ISU Officer, during which time I
received training in Drug Interdiction. I have investigated
numerous drug cases, interviewed numerous inmates regarding
narcotic activities, including but not limited to usable amounts,
prices in prison, and common methods of trafficking.
13
14
15
b) Q2: In your experience as a Drug Interdiction Officer, what
determines the charge of possession versus distribution? A2: A
common amount for an inmate to purchase for personal
consumption would be a small amount such as a $50.00 paper or
piece.
16
17
18
c) Q3: What is the typical amount an individual inmate would have
in their possession for personal use? A3: The amount Inmate
BARBOZA was caught in possession was worth approximately
$600.00 (3 grams) it could be cut and sold for much more.
19
20
21
Id. at 15. As a result of his conviction, petitioner was assessed a 180 day credit forfeiture and
22
was placed on mandatory drug testing. Id. at 16.
23
On November 19, 2008, petitioner challenged his disciplinary conviction in a petition for
24
writ of habeas corpus filed in the California Superior Court. Dckt. 11-1. The Superior Court
25
denied the petition, reasoning as follows:
26
////
3
1
Petitioner is challenging the outcome of disciplinary proceedings
that took place with respect to 115 Rules Violation Report (RVR)
log number 507-06-002. Specifically, he contends that the
evidence was insufficient to support a finding of guilt for the
charge of distribution of a controlled substance (Heroin) and
asserts that, at most, the evidence could support a finding of simple
possession.
2
3
4
5
An inmate is found guilty at a disciplinary hearing based upon a
preponderance of the evidence standard. Due process requires that
the findings of a disciplinary board be upheld if the decision is
supported by “some evidence.” (Superintendent v. Hill (1985) 472
U.S. 445, 454.) Hill expressly states that in applying the “some
evidence” standard, courts are not required to examine the entire
record, independently assess credibility of witnesses, or weigh the
evidence. (Id., at p. 455.) The court must only decide if there is
any evidence in the record that would support the conclusion
reached. (Id. at pp. 455-456.)
6
7
8
9
10
Contrary to petitioner’s belief, the record of the disciplinary
hearing contains “some evidence” to support the SHO’s finding of
guilt. Correctional officers found 2.77 grams of heroin in his
possession and an expert witness essentially stated that this amount
indicates possession for distribution. That petitioner claimed that
the heroin was for personal use only and that correctional officials
did not find other evidence of distribution, such as pay-owe sheets,
excessive canteen items, packaging materials, or confidential
information, is not a sufficient basis for overturning the finding as
the courts have held that the standards that apply with respect to
disciplinary proceedings are significantly more lenient that [sic]
those applied with respect to criminal convictions. (In re Zepeda
(2006) 141 Cal.App.4th 1493, 1499.) “Implicit in the ‘some
evidence’ standard of review is the recognition that due process
requirements imposed by the federal Constitution do not authorize
courts to reverse prison disciplinary actions simply because, in the
reviewing court’s view, there is a realistic possibility the prisoner
being disciplined is not guilty of the charged infraction.” (In re
Zepeda, supra, at p. 1498.) “Thus, to withstand court scrutiny for
federal due process purposes, there is simply no requirement that
the evidence ‘logically precludes any conclusion but the one
reached by the disciplinary [official].’ . . . Rather, all that is
required is “some evidence from which the conclusion of the
[official] could be deduced.’”’ (In re Zepeda, supra, at p. 1499,
citing to Superintendent v. Hill, supra at p. 456.)
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Id.
25
////
26
////
4
1
Petitioner subsequently challenged his disciplinary conviction in petitions for a writ of
2
habeas corpus filed in the California Court of Appeal and California Supreme Court. Dckt. Nos.
3
11-3, 11-4. Those petitions were summarily denied. Dckt. Nos. 11-5, 11-6.
4
II.
Analysis
5
A. Standards for a Writ of Habeas Corpus
6
An application for a writ of habeas corpus by a person in custody under a judgment of a
7
state court can be granted only for violations of the Constitution or laws of the United States. 28
8
U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or
9
application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010);
10
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir.
11
2000).
12
13
14
15
16
17
18
19
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of the
claim (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
20
(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.
21
For purposes of applying § 2254(d)(1), “clearly established federal law” consists of
22
holdings of the United States Supreme Court at the time of the state court decision. Stanley v.
23
Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06
24
(2000)). Nonetheless, “circuit court precedent may be persuasive in determining what law is
25
clearly established and whether a state court applied that law unreasonably.” Stanley, 633 F.3d
26
at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)).
5
1
A state court decision is “contrary to” clearly established federal law if it applies a rule
2
contradicting a holding of the Supreme Court or reaches a result different from Supreme Court
3
precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003).
4
Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant
5
the writ if the state court identifies the correct governing legal principle from the Supreme
6
Court’s decisions, but unreasonably applies that principle to the facts of the prisoner’s case.1
7
Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360
8
F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ
9
simply because that court concludes in its independent judgment that the relevant state-court
10
decision applied clearly established federal law erroneously or incorrectly. Rather, that
11
application must also be unreasonable.” Williams, 529 U.S. at 412. See also Schriro v.
12
Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal
13
habeas court, in its independent review of the legal question, is left with a ‘firm conviction’ that
14
the state court was ‘erroneous.’”). “A state court’s determination that a claim lacks merit
15
precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness
16
of the state court’s decision.” Harrington v. Richter, 562 U.S.___,___,131 S. Ct. 770, 786
17
(2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, “[a]s a
18
condition for obtaining habeas corpus from a federal court, a state prisoner must show that the
19
state court’s ruling on the claim being presented in federal court was so lacking in justification
20
that there was an error well understood and comprehended in existing law beyond any possibility
21
for fairminded disagreement.” Harrington,131 S. Ct. at 786-87.
22
23
If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing
court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford,
24
1
25
26
Under § 2254(d)(2), a state court decision based on a factual determination is not to be
overturned on factual grounds unless it is “objectively unreasonable in light of the evidence
presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford,
384 F.3d 628, 638 (9th Cir. 2004)).
6
1
527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)
2
(en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of
3
§ 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by
4
considering de novo the constitutional issues raised.”).
5
The court looks to the last reasoned state court decision as the basis for the state court
6
judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
7
If the last reasoned state court decision adopts or substantially incorporates the reasoning from a
8
previous state court decision, this court may consider both decisions to ascertain the reasoning of
9
the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When
10
a federal claim has been presented to a state court and the state court has denied relief, it may be
11
presumed that the state court adjudicated the claim on the merits in the absence of any indication
12
or state-law procedural principles to the contrary.” Harrington, 131 S. Ct. at 784-85. This
13
presumption may be overcome by a showing “there is reason to think some other explanation for
14
the state court’s decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797,
15
803 (1991)). Where the state court reaches a decision on the merits but provides no reasoning to
16
support its conclusion, a federal habeas court independently reviews the record to determine
17
whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.
18
Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo
19
review of the constitutional issue, but rather, the only method by which we can determine
20
whether a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853.
21
Where no reasoned decision is available, the habeas petitioner still has the burden of “showing
22
there was no reasonable basis for the state court to deny relief.” Harrington, 131 S. Ct. at 784.
23
When it is clear, however, that a state court has not reached the merits of a petitioner’s
24
claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal
25
habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462
26
F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
7
1
B. Petitioner’s Due Process Claim
2
Petitioner claims that the evidence introduced at his disciplinary proceeding was
3
insufficient to support “the elevated finding of distribution versus possession.” Dckt. No. 1 at 4.
4
He argues that the evidence established only that he was guilty of possession of heroin. Id. He
5
contends that “there is no evidence of distribution in the record, that the evidence discovered
6
only supports a possession charge, that the ‘common amount’ of dosage varies by individual
7
drug user, [and] that there was no evidence of ‘pay/owe sheets’, drug sales paraphernalia or other
8
evidence to support the greater charges.” Id. Petitioner also argues that the questions contained
9
in the supplemental report, which provided partial support for his conviction, were “by design
10
speculation, prejudicially inculpatory, and leading.” Dckt. No. 14 at 8. He explains that the
11
question of whether an individual is distributing heroin depends on many factors, including the
12
individual’s tolerance to the drug, “how much money a person had at their disposal,” and the
13
“quality of the heroin at issue,” and not just on the amount of heroin the individual possessed at a
14
given time. Id. at 8-9. Petitioner claims that Officer Guzman was not asked “pertinent and
15
relevant” questions regarding all of the factors that determine whether an individual possesses
16
drugs for personal use or for distribution. Id. at 9. He argues that his possession of heroin,
17
standing alone, is insufficient to support his conviction because “there is no evidence of
18
distribution admitted into the record of this case.” Id. He contends that he should have been
19
found guilty of simple possession of heroin because this is what he “is actually guilty of,
20
admitted to, and what the evidence introduced into the record supports.” Id. at 10. He also
21
argues that the guilty finding was “made with a malicious and vindictive intent.” Id.
22
Finally, petitioner argues that there was insufficient evidence introduced at the
23
disciplinary hearing regarding Officer Guzman’s credentials and his qualification to offer an
24
expert opinion on what constitutes distribution of narcotics. He alleges that there was
25
insufficient evidence Officer Guzman had “a credible scientific basis for his testimony about the
26
use of the contraband heroin.” Id. at 11. He also contends that since Guzman was the person
8
1
who conducted the investigation and wrote the rules violation report, his testimony “should be
2
considered highly prejudicial and suspect.” Id. at 11-12.2
3
In his prayer for relief, petitioner requests that the court “declare that the State prison
4
disciplinary hearing on CDC-115 (log #FSP-507-06-002) is invalid,” declare that “there is only
5
evidence of possession of heroin,” expunge all reference to the disciplinary conviction from his
6
record, and “cease and desist all administrative punishments imposed thereby.” Id. at 14.
7
It is well established that inmates subjected to disciplinary action are entitled to certain
8
procedural protections under the Due Process Clause but are not entitled to the full panoply of
9
rights afforded to criminal defendants. Wolff v. McDonnell, 418 U.S. 539, 556 (1974); see also
10
Superintendent v. Hill, 472 U.S. 445, 455-56 (1985); United States v. Segal, 549 F.2d 1293,
11
1296-99 (9th Cir. 1977) (observing that prison disciplinary proceedings command the least
12
amount of due process along the prosecution continuum). An inmate is entitled to advance
13
written notice of the charge against him as well as a written statement of the evidence relied
14
upon by prison officials and the reasons for any disciplinary action taken. See Wolff, 418 U.S. at
15
563. An inmate also has a right to a hearing at which he may “call witnesses and present
16
documentary evidence in his defense when permitting him to do so will not be unduly hazardous
17
to institutional safety or correctional goals.” Wolff, 418 U.S. at 566. See also Ponte v. Real, 471
18
U.S. 491, 495 (1985).
19
The decision rendered on a disciplinary charge must be supported by “some evidence” in
20
the record. Hill, 472 U.S. at 455. A finding of guilt cannot be “without support” or “arbitrary.”
21
Id. at 457. The “some evidence” standard is “minimally stringent,” and a decision must be
22
upheld if there is any reliable evidence in the record that could support the conclusion reached
23
by the fact finder. Powell v. Gomez, 33 F.3d 39, 40 (9th Cir. 1994) (citing Hill, 472 U.S. at 455-
24
25
26
2
Petitioner also claims that his conviction “does not comport with State law.” As set
forth above, claims based on violations of state law are not cognizable in federal habeas corpus
proceedings. Wilson v. Corcoran, 131 S. Ct. at 16.
9
1
56 and Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987)). See also Burnsworth v. Gunderson,
2
179 F.3d 771, 773 (9th Cir. 1990); Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir. 1987).
3
Determining whether this standard is satisfied does not require examination of the entire record,
4
independent assessment of the credibility of witnesses, or the weighing of evidence. Toussaint v.
5
McCarthy, 801 F.2d 1080, 1105 (9th Cir. 1986), abrogated in part on other grounds by Sandin v.
6
Connor, 515 U.S. 472 (1995). Indeed, in examining the record, a court is not to make its own
7
assessment of the credibility of witnesses or re-weigh the evidence. Hill, 472 U.S. at 455. The
8
question is whether there is any reliable evidence in the record that could support the decision
9
reached. Toussaint, 801 F.2d at 1105.
10
The due process requirement that a disciplinary conviction must be supported by “some
11
evidence” that is “reliable” and not “arbitrary” has been satisfied in this case. Petitioner’s
12
conviction was based on: (1) the rules violation report, which reported that 2.77 grams of heroin
13
was found after a search of petitioner’s cell; (2) petitioner’s admission during the disciplinary
14
hearing that the narcotics in the cell belonged to him; and (3) the contents of the supplemental
15
report, in which Officer Guzman explained his credentials as an expert on narcotics trafficking
16
and stated his opinion that the amount of heroin found in petitioner’s cell was substantially more
17
than the common amount an inmate would purchase for personal consumption and could be “cut
18
and sold.” When considered together, these three pieces of evidence are sufficient to support the
19
decision reached by the disciplinary hearing officers in this case that petitioner possessed the
20
heroin for purposes of distribution. The decision of the California Superior Court that
21
petitioner’s conviction was supported by sufficient evidence, and therefore comported with due
22
process, is not contrary to or an unreasonable application of the federal due process principles set
23
forth above.
24
////
25
////
26
////
10
1
2
3
4
III. Conclusion
Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ
of habeas corpus be denied.
These findings and recommendations are submitted to the United States District Judge
5
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one
6
days after being served with these findings and recommendations, any party may file written
7
objections with the court and serve a copy on all parties. Such a document should be captioned
8
“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
9
within the specified time may waive the right to appeal the District Court’s order. Turner v.
10
Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In
11
his objections petitioner may address whether a certificate of appealability should issue in the
12
event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing
13
Section 2254 Cases (the district court must issue or deny a certificate of appealability when it
14
enters a final order adverse to the applicant).
15
DATED: December 7, 2011.
16
17
18
19
20
21
22
23
24
25
26
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?