Dow v. California Department of Corrections Rehabilitation
Filing
16
MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 12/5/2011 ORDERING that 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. CASE CLOSED. (Duong, D)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
LA CARL DOW,
No. 2:10-cv-02023-JKS
Petitioner,
MEMORANDUM DECISION
v.
TIM VIRGA, Warden, California State
Prison, Sacramento,
Respondent.
La Carl Dow, a state prisoner appearing pro se, filed a Petition for Habeas Corpus under
28 U.S.C. § 2254. Dow is currently in the custody of the California Department of Corrections
and Rehabilitation, incarcerated at the California State Prison, Sacramento. Respondent has
answered, and Dow has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Dow is currently serving a determinate sentence of fifteen years as a result of his
December 2003 conviction in the San Mateo County Superior Court for Robbery, Cal. Penal
Code § 212.5(c), with serious felony priors and under California’s “three-strikes” law. Dow does
not challenge that conviction or sentence in this proceeding.
In July 2007 Dow was found in possession of illegal substances in a prison facility. Dow
was issued a CDC 115 Rules Violation Report (“RVR”) charging him with the specific act of
Possession/Controlled Substance/Distribution. The internal prison disciplinary proceedings were
stayed and held in abeyance pending referral to the District Attorney for prosecution under the
Penal Code. The District Attorney obtained an indictment in the Solano County Superior Court
charging Dow with one count of Possession of Illegal Substances in a Prison Facility in violation
of California Penal Code § 4573.6, a felony.1 Dow entered a no contest plea in the Solano
County Superior Court.2 Upon completion of the criminal proceedings in the Solano County
Superior Court, the internal disciplinary proceedings were reinstated. After a hearing before a
Senior Hearing Officer (“SHO”), Dow was found guilty of Possession of a Controlled Substance
for Distribution, a Division “A-2” Offense,3 and assessed 151 days of loss of behavioral credits.4
After exhausting his administrative appeal rights,5 Dow filed a petition for habeas relief in the
Solano County Superior Court, which was denied in an unreported, reasoned decision. The
California Court of Appeal summarily denied Dow’s petition for habeas relief, and the California
Supreme Court summarily denied relief without opinion or citation to authority on September 9,
2009. Dow timely filed his Petition for relief in this Court on July 23, 2010.
The factual basis underlying Dow’s conviction, as recited in the RVR, is as follows:
On Monday, July 2, 2007, Officers C. Stiltner and A. Alcaraz approached cell
11-128 and removed DOW and SMITH who were assigned to the cell. During an
unclothed body search of Dow, Officer Alcaraz discovered numerous bindles of
suspected controlled substances. Inmate SMITH was also searched with negative
results. Officer J. Whitfield arrived on the scene with his Narcotic Detection Dog,
“Slue-Zen” and searched cell 11-128. The dog alerted to the scent of narcotic by
1
Docket No. 11-1, at 16-17.
2
The findings and punishment imposed by the Solano County Superior Court in the
criminal proceedings do not appear in the record and are not germane to the issues presented in
the Petition before this Court.
3
Cal. Code Regs. tit. 15, § 3016(c).
4
Docket No. 11-1, at 28.
5
Prisoner disciplinary actions are subject to internal administrative review. Cal. Code
Regs. tit. 15, §§ 3084.1-3084.2, 3084.7, 3084.9.
2
scratching at the lower left corner of the top shelf and to the mattress taken from the
lower bunk. Officer Stiltner physically searched these areas and recovered what
appeared to be marijuana and heroin. Officer Alcaraz assisted in the search and
recovered a razor blade in the lower bunk area and a small digital scale.
On Thursday, July 5, 2007, field test results were received from CSP-Solano
Security and Investigations Officer D. Howard who tested eleven (11) bindles
collected from cell 11-128, assigned to inmates DOW, V-22401 and SMITH,
V09846 on July 2,2007. The bindles were labeled 1-11 and the results were as
follows:
#1=0.29 Marijuana
#2=0.89 Heroin
#3=0.89 Heroin
#4=0.49 Heroin
#5=0.59 Marijuana
#6=0.89 Heroin
#7=0.89 Heroin
#8=4.39 Marijuana
#9=5.89 Heroin
#10=0.89 Marijuana
#11 =0.49 Heroin
(all weights inclusive of packaging)6
II. GROUNDS RAISED/DEFENSES
In his Petition, Dow raises a single ground: that the evidence is insufficient to support his
conviction of possession with intent to distribute as defined in the California Code of
Regulations. Respondent asserts no affirmative defense.7
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
6
Docket No. 11-1, at 33. This is reproduced exactly as it appears on the docket report.
7
See Rules Governing Section 2254 Cases in the U.S. Dist. Courts, Rule 5(b) (2011).
3
on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.”8 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.”9 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.10 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.’”11 When a claim falls under the
“unreasonable application” prong, a state court’s application of Supreme Court precedent must
be “objectively unreasonable,” not just “incorrect or erroneous.”12 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.13 “[A]bsent a specific constitutional
violation, federal habeas corpus review of trial error is limited to whether the error ‘so infected
8
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).
9
Williams, 529 U.S. at 412 (alteration added).
10
Early v. Packer, 537 U.S. 3, 10 (2002).
11
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).
12
Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (internal quotation marks and citations
omitted).
13
Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410).
4
the trial with unfairness as to make the resulting conviction a denial of due process.’”14 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.15 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.16
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 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.17
14
Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 642, 643 (1974)).
15
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)).
16
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”).
17
Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011) (emphasis added).
5
In applying this standard, this Court reviews the “last reasoned decision” by the state
court.18 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.19 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.20
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
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.21
This is considered as the functional equivalent of the appeal process.22 Under AEDPA, the state
court’s findings of fact are presumed to be correct unless the petitioner rebuts this presumption
18
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 . . . ”).
19
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.”).
20
See Richter, 131 S. Ct. at 784-85 (rejecting the argument that a summary disposition
was not entitled to § 2254(d) deference).
21
See Carey v. Saffold, 536 U.S. 214, 221-22 (2002) (citations omitted) (discussing
California’s “original writ” system).
22
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 . . . .”).
6
by clear and convincing evidence.23 This presumption applies to state trial courts and appellate
courts alike.24
IV. DISCUSSION
The prison disciplinary proceeding culminated with the Director’s Level Appeal
Decision:
I
APPELLANT’S ARGUMENT: [Dow] is submitting this appeal relative
to CDC Form 115, Rules Violation Report (RVR), Log #S2-07-07-0758, dated July
9, 2008, for Possession/Controlled Substance/Distribtution. It is [Dow’s] position
that he is not guilty of Distribution of a Controlled Substance. [Dow] states that there
is evidence to substantiate a guilty finding on the lesser charge of Possession of
Controlled Substance. [Dow] states that the guilty finding was based on evidence
that does not substantiate distribution. [Dow] requests that the charge for
Distribution be lowered to a charge of Possession.
II
SECOND LEVEL’S DECISION: The reviewer found “that the appellant
is not a participant in the Mental Health Services Delivery System. [Dow] did not
display any bizarre, unusual, or uncharacteristic behavior at the time of the hearing.
An Investigative Employee was assigned and submitted a report to the appellant.
[Dow] elected to have no witnesses present at his disciplinary hearing. The charges
were read to [Dow] and he pled Not Guilty to the charge and advised the Senior
Hearing Officer (SHO) that he was guilty of possession but not guilty of distribution.
[Dow] pled No Contest to possession of controlled substance in Solano County
Superior Court and [Dow] was found guilty as charged. The SHO found the
appellant guilty based on the circumstances of the Reporting Employee RVR and the
appellant’s admission of guilt. The razor blade and digital scale discovered in
[Dow’s] cell are also evidence of distribution. [Dow] was in possession of the
controlled substances and the contraband was packaged in a manner consistent with
distribution. Additionally, the combined weight 9.8 grams Heroin inclusive of
packaging, 5.8 grams Marijuana inclusive of packaging indicates that these
substances were not for personal used based on the amount. [Dow] was assessed 151
23
28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)
(“Factual determinations by state courts are presumed correct absent clear and convincing
evidence to the contrary . . . .” (citing 28 U.S.C. § 2254(e)(1)).
24
See Stevenson v. Lewis, 384 F.3d 1069, 1072 (9th Cir. 2004) (“Stevenson does not
address these factual findings, let alone challenge them with clear and convincing evidence.
Accordingly, we presume them to be correct.” (citing 28 U.S.C. § 2254(e)(1); Pollard v. Galaza,
290 F.3d 1030, 1035 (9th Cir. 2002))).
7
days forfeiture of credits which is consistent with a Division “A-2” offense. The
appeal was denied at the Second Level of Review (SLR).
III
DIRECTOR’S LEVEL DECISION: Appeal is denied.
A. FINDINGS: The Director’s Level of Review (DLR) reviewed the issues
of [Dow’s] appeal and reaffirms the institution’s examination and conclusions as
addressed within the SLR. The examiner thoroughly reviewed all documents relative
to [Dow’s] RVR and finds that the RVR was referred to the District Attorney (DA).
On July 10, 2007, [Dow] requested postponement of his hearing pending the DA
referral. On March 28, 2008, the outcome of the DA referral was received. A Staff
Assistant not assigned as [Dow] is literate and does not meet the criteria described
in the California Code of Regulations, Title 15, Section (CCR) 3315. On July
10,2007, [Dow] received his copy of the RVR which is within 15 days of discovery.
[Dow] received all documentation to be relied upon more than 24 hours prior to the
hearing and [Dow] was present at the hearing on April 18, 2008, which is within 30
days of the completion of the judicial proceedings. The examiner thoroughly
reviewed all documents relative to [Dow’s] RVR and finds that the SHO
appropriately found [Dow] guilty and assessed a credit loss commensurate with the
credit forfeiture schedule. The DLR finds that [Dow] was afforded all the required
due process protections and that time constraints were complied with. After
considering the evidence and arguments herein, it has been determined that
California State Prison - Solano (SOL) has acted appropriately on [Dow’s] request.
There shall be no relief afforded to the appellant at the DLR.
B. BASIS FOR THE DECISION:
CCR: 3006, 3016, 3287, 3290, 3310, 3312, 3313, 3315, 3316, 3318, 3320, 3323
C. ORDER: No changes or modifications are required by the Institution.25
Dow admitted guilt to possession of a controlled substance. Dow argues that the record is
devoid of any evidentiary support that he “distributed” a controlled substance within the meaning
of § 3016(c) of the regulations, which provides: “Inmates shall not distribute, as defined in
section 3000, any controlled substance.”26 Distribution is defined as: “the sale or unlawful
dispersing, by an inmate or parolee, of any controlled substance; or the solicitation of or
conspiring with others in arranging for, the introduction of controlled substances into any
25
Docket No. 11-1, at 19-20 (alterations added). Except for the petitioner’s name, this is
reproduced exactly as it appears on the docket report.
26
Cal. Code Regs. tit. 15, § 3016(c).
8
institution, camp, contract health facility, or community correctional facility for the purpose of
sales or distribution.”27 He further argues that, because of the criminal prosecution that was
limited to the simple possession charge, not the distribution charge, the guilty finding was
precluded by § 3316(c)(3) of the regulations, which provides:
(3) A court verdict of guilty or not guilty, resulting from a trial, shall be
accepted as the finding of fact on the same charges in a disciplinary hearing. Should
the court accept a plea agreement or negotiated settlement resulting in a conviction
for a lesser offense than was originally charged, or if a court dismisses a charge prior
to trial, the Department shall not be precluded from taking appropriate administrative
action based on the facts contained in the original charge. If a court finds the inmate
not guilty after a finding of guilty in a disciplinary hearing, the rule violation charges
shall be dismissed.28
The Solano County Superior Court rejected Dow’s arguments, holding:
[Dow] has failed to state a prima facie case for relief on his claims. (People
v. Duvall (1995) 9 Cal.4th 464.) First, [Dow] has failed to provide all the necessary
documents for the court to review this matter. (Id. at 474.) But, based on what has
been submitted, some evidence exists supporting his guilty finding as required by
law. (In re Zapeda (2006) 141 Cal.App.4th 1493.) The some evidence standard is
not particularly stringent and is satisfied where “there is any evidence in the record
that could support the conclusion reached.” (Superintendent v. Hill 474 U.S. 455456.) The record shows that the CDC found heroin and marijuana and a small digital
scale in [Dow’s] cell and on his person. Further, the drugs were packed in eleven
individual bags. This is enough to support the finding.29
“Prison disciplinary proceedings are not part of a criminal prosecution;” therefore, “the
full panoply of rights due a defendant in such proceedings does not apply.”30 In the context of
prison disciplinary proceedings the minimum requirements of due process are: (1) advance
27
Cal. Code Regs. tit. 15, § 3000.
28
Cal Code Regs. tit. 15, § 3316(c).
29
Docket 11-1, at 56-57 (alterations added). Except for the petitioner’s name, this
appears exactly as it does in the original.
30
Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (citation omitted).
9
written notice of the charges brought against the inmate; (2) the right to call witnesses and
present documentary evidence in defense; (3) the factfinder’s written statement of the evidence
relied on and the reasons for the disciplinary action taken;31 and (4) the findings must be
supported by some evidence in the record.32 Inmates do not, however, have a right of
confrontation and cross-examination.33 The only right at issue in this case is that the findings
must be supported by some evidence.
Distilled to its essence, Dow’s argument is that California law was either misinterpreted
or misapplied. That argument is beyond the purview of this Court in a federal habeas petition.34
“[A] state court’s interpretation of state law, including one announced on direct appeal of the
challenged conviction, binds a federal court sitting in habeas corpus.”35 A petitioner “may not,
however, transform a state-law issue into a federal one merely by simply asserting a violation of
due process.”36 “[The Supreme Court has] long recognized that a mere error of state law is not a
denial of due process.”37 A determination of state law by a state intermediate appellate court is
31
Id. at 563-66.
32
Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985).
33
Wolff, 418 U.S. at 567.
34
See Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011) (“The short of the matter is that the
responsibility for assuring that the constitutionally adequate procedures governing California’s
parole system are properly applied rests with California courts, and is no part of the Ninth
Circuit’s business.”).
35
Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (citations omitted); see West v. Am. Tel. &
Tel., 311 U.S. 223, 236 (1940) (“[T]he highest court of the state is the final arbiter of what is
state law. When it has spoken, its pronouncement is to be accepted by federal courts as defining
state law . . . .” (citation omitted)).
36
Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).
37
Cooke, 131 S. Ct. at 863 (internal quotation marks and citations omitted).
10
also binding in a federal habeas action.38 This is especially true where the highest court in the
state has denied review of the lower court’s decision.39 “[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.’”40 “Federal
courts hold no supervisory authority over state judicial proceedings and may intervene only to
correct wrongs of constitutional dimension.”41
V. CONCLUSION AND ORDER
Because he has failed to raise an issue of constitutional dimension, Dow 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.
38
See Hicks v. Feiock, 485 U.S. 624, 629-30 & n.3 (1988) (citing West, 311 U.S. at 237238) (noting that a state appellate court’s determination of state law is binding and must be given
deference).
39
Id.; see West, 311 U.S. at 237 (“This is the more so where, as in this case, the highest
court has refused to review the lower court’s decision rendered in one phase of the very litigation
which is now prosecuted by the same parties before the federal court.”); Shannon v. Newland,
410 F.3d 1083, 1087 (9th Cir. 2005) (same).
40
Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 642, 643 (1974)).
41
Smith v. Philips, 455 U.S. 209, 221 (1982) (citations omitted); see also Sanchez-Llamas
v. Oregon, 548 U.S. 331, 345 (2006) (“It is beyond dispute that we do not hold a supervisory
power over the courts of the several States.” (quoting Dickerson v. United States, 530 U.S. 428,
438 (2000))).
11
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability.42 Any further request for a Certificate of Appealability must be addressed to the
Court of Appeals.43
The Clerk of the Court is to enter judgment accordingly.
Dated: December 5, 2011.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
United States District Judge
42
28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705-06 (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. 322, 327 (2003))).
43
See Fed. R. App. P. 22(b); Ninth Circuit R. 22-1.
12
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