Nguyen v. Hill

Filing 15

ORDER signed by Judge Lawrence K. Karlton on 5/22/13 ORDERING that Respondent's MOTION to Dismiss 10 is GRANTED; Petitioner's application for a writ of habeas corpus is DISMISSED; This case is CLOSED; and the Court DECLINES to issue the Certificate of Appealability referenced in 28 U.S.C. § 2253. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN NGUYEN,

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Petitioner,

No. 2:12-cv-1357 LKK CKD P

vs.
RICK HILL,

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O R D E R
Respondent.

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/

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Petitioner, a state prisoner proceeding pro se, has filed

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an application for a writ of habeas corpus pursuant to 28 U.S.C.

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§ 2254.

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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

The matter was referred to a United States Magistrate

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On October 31, 2012, the magistrate judge filed Findings

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and Recommendations (“F+R”) (ECF No. 13), which were served on all

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parties

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objections to the findings and recommendations were to be filed

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within fourteen days.

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findings and recommendations.

and

which

contained

notice

to

all

parties

that

any

Petitioner has filed objections to the

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In

accordance

with

the

provisions

of

28

U.S.C.

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§ 636(b)(1)(C) and Local Rule 304, this court has conducted a de

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novo review of this case.

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file, the court agrees with the Magistrate Judge that the Petition

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must be dismissed, but solely for the reasons set forth below. The

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court otherwise declines to adopt the Findings and Recommendations.

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Petitioner may seek a writ of habeas corpus “only on the

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ground that he is in custody in violation of the Constitution or

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laws or treaties of the United States.”

Having carefully reviewed the entire

28 U.S.C. § 2254(a);

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Swarthout v. Cooke, 562 U.S. ___, 131 S. Ct. 859, 861 (2011).

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Here, Petitioner alleges that his incarceration will be increased

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as the result of disciplinary charges and findings that are not

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supported by “some evidence,” in violation of his Due Process

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rights.

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asserts that the disciplinary findings will increase the amount of

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time he spends in custody, since they can be used against him at

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his next parole hearing.

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this

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Objections at 15.

is

Petition at 8 ¶ 13(c)(3); Objections at 6 & 8.

what

happened

Objections at 6.
to

him

at

his

Plaintiff

Plaintiff asserts that
last

parole

hearing.

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On April 20, 2010, a prison Senior Hearing Officer (“SHO”)

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conducted a disciplinary hearing on the charge that Petitioner had

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engaged in conduct which might lead to violence or disorder in

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violation of prison regulations. Petitioner’s Opposition to Motion

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To Dismiss (“Opposition”) (ECF No. 11) at 23-29. The regulation at

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issue – Cal. Code Regs. tit. 15, § 3005(a) – requires inmates to

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“refrain from behavior which might lead to violence or disorder.”
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See Opposition at 23 (“Violated Rule No(s). C.C.R. 3005(a)”).

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After the hearing, the SHO found Petitioner “Guilty,” on the

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grounds that “arguing loudly” with another inmate “to the point

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that other inmates feel compelled to separate them is behavior that

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could lead to violence.”

Opposition at 28-29.1

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Petitioner asserts that there is an absence of “some evidence”

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in the record in support of the disciplinary finding, and that he

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was therefore denied his due process rights. Objections at 13-21.

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However, the record upon which plaintiff relies plainly shows that

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there was “some evidence” in support of the SHO’s findings.

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Accordingly, even if the “some evidence” standard applies, and even

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if

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incarceration – two matters this court does not decide – the

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Petition must be dismissed.2

the

disciplinary

findings

would

“likely”

increase

his

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As a consequence, Petitioner was placed in “Privilege
Group ‘C’ for 30 days.” Opposition at 29. This classification
restricted or eliminated: family visits, “canteen draw,”
telephone calls, yard access and personal property packages. See
Cal. Code Regs. tit. 15, § 3044(f)(2).
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Accordingly, court does not address legal issues raised by
this case and by the Findings and Recommendations: (1) whether
Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (habeas
corpus jurisdiction exists “when a petitioner seeks expungement
of a disciplinary finding from his record if expungement is
likely to accelerate the prisoner's eligibility for parole”), was
“implicitly overruled” by Skinner v. Switzer, 562 U.S. ___, 131
S. Ct. 1289 (2011), and Spencer v. Kemna, 523 U.S. 1 (1998), see
F+R at 3 n.3; (2) whether, even assuming Bostic is good law,
Petitioner could possibly show that the disciplinary findings
would “likely” increase his incarceration by decreasing his
chance of parole; (3) whether Swarthout precludes the use of the
“some evidence” standard of Superintendent v. Hill, 472 U.S. 445
(1985) (prison disciplinary decision must be supported by “some
evidence”), where, as here, Petitioner has not lost “good time”
credits, see F+R at 4; and (4) whether under Sandin v. Conner,
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First, the SHO relied upon a Rules Violation Report (“RVR”)

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written by Lieutenant A. Alanis after the incident which led to the

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charge against Petitioner.

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report states that Petitioner was escorted to Alanis’s office and

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interviewed.

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Objections at 28 (“Findings”).

The

According to the report:

You [Petitioner] stated that you were arguing with
inmate FLAUTA over your work site job duties. You
continued to state that the argument escalated and you
began pushing and shoving inmate FLAUTA and were
subsequently stopped by other inmates .... At the
completion of the interview you signed a CDC 1286
(compatibility chrono) which states in part that you
were involved in a physical altercation with inmate
FLAUTA.

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Objections at 23.

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at the April 20th hearing, by telephone, and was available to be

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cross-examined about the report by Petitioner, who did so.3

Alanis, the author of this report, was present

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Second, Petitioner requested that six inmates participate as

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witnesses at the hearing, all of whom subsequently gave statements

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under questioning at the hearing.

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SHO relied upon the statements of five percipient witnesses, three

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of whom were inmates that Petitioner had called (Lieutenant Alanis,

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Prison Industries Supervisor Snoozy, and inmates Crowley, Goodwin

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and Rosas).

Opposition at 28-29.

Opposition at 24, 26-28.

The

The statements of the other

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515 U.S. 472 (1995), the petition may only be granted if
Petitioner shows that the disciplinary findings subject him to
“atypical and significant hardship,” see F+R at 4-5.
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However, Petitioner asked Alanis only whether Petitioner
had been coerced into signing the “compatibility chrono.”
Petitioner did not examine Alanis about the substantive
assertions that Petitioner had engaged in an escalating argument
with Flauta and was “pushing and shoving inmate FLAUTA.”
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witnesses at the hearing (Prison Industries Supervisor Chan, and

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inmates Harris, Whipple and Flauta), did not produce evidence for

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or

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statements.

against

Petitioner,

and

the

SHO

did

not

rely

upon

their

Id.

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Under questioning, Snoozy stated that he heard “what sounded

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like someone arguing and scuffling,” at which point he “sounded the

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alarm.”

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happening, he saw that Petitioner and another inmate (Flauta) were

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“being separated.”

Opposition at 25.

Id.

When Snoozy turned to see what was

Other percipient witnesses stated under

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questioning that they “saw an elevated rise of tension between

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inmates FLAUTA and NGUYEN,” that they heard “them bitching at each

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other,” and that the two had to be separated after “inmate NGUYEN

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got upset.”

Opposition at 26 & 27.

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The SHO’s conclusion was that:

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inmates are not charged with fighting. Rather, they
are charged with “BEHAVIOR THAT COULD LEAD TO
VIOLENCE.” The two inmates, inmates NGUYEN and FLAUTA
had a disagreement and began arguing loudly. The SHO
determines that arguing to the point that other inmates
feel compelled to separate them is behavior which could
lead to violence.

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Objections at 29.

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support of this conclusion.

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There is “some evidence” in the record in

Petitioner’s other objections are not well taken.

First,

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Petitioner objects to the use of hearsay evidence of what Snoozy

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told Alanis.

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inadmissible in this proceeding,4 both Alanis and Snoozy were

Objections at 9.

However, even if hearsay were

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The court notes that even the hearsay included in this
hearing is not the “uncorroborated hearsay” condemned in Cato v.
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available at the hearing to be examined about Snoozy’s statement.

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See Opposition at 24-25.

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statements of other percipient witnesses, as discussed above, in

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addition to the Alanis report.

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even if the Snoozy statement in the Alanis report is excluded,

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there was still “some evidence” to support the SHO’s conclusion.

In any event, the SHO relies on the

See Opposition at 28-29.

Thus,

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Second, Petitioner objects that the other inmate involved in

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the incident (Flauta), was found “Not Guilty” of the same rules

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violation.

Objections at 10-11.

Plaintiff does not offer any

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explanation for why this evidences an unconstitutional deprivation

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of his own Due Process rights, and the court is aware of none.

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Third, Petitioner objects to the use of Alanis’s report

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because Petitioner was coerced into signing it by the threat of

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being placed into administrative segregation if he did not sign.

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Objections at 11.

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excluded as coerced, the statements of other percipient witnesses,

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including Snoozy, who were subject to examination by Petitioner,

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provide “some evidence” that supports the SHO’s conclusion.5

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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However, even if the entire Alanis report were

Respondent’s motion to dismiss (Dkt. No. 10) is

granted;

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Rushen, 824 F.2d 703 (9th Cir. 1987), nor is it the “only
evidence” relied upon.
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Since there is no shown defect in Petitioner’s
disciplinary hearing, there is no need to consider his claim that
the hearing results could be used against him in his next parole
hearing.
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Petitioner’s application for a writ of habeas

corpus is dismissed;

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This case is closed; and

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The court declines to issue the certificate of

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appealability referenced in 28 U.S.C. § 2253.

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IT IS SO ORDERED.

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DATED: May 22, 2013.

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