Garibay v. Horel et al

Filing 11

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; Signed by Judge Marilyn Hall Patel on 5/23/2011. (Attachments: # 1 CertServ)(awb, COURT STAFF) (Filed on 5/24/2011)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 9 United States District Court For the Northern District of California ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS Petitioner, 10 11 No. C 09-2828 MHP (pr) ERNEY GARIBAY, v. R. HOREL, warden, 12 Respondent. 13 / 14 15 INTRODUCTION 16 Erney Garibay filed this pro se action for writ of habeas corpus pursuant to 28 U.S.C. 17 § 2254 to challenge prison officials' decision to validate him as a gang associate and place 18 him in administrative segregation. This matter is now before the court for consideration of 19 the merits of the petition. For the reasons discussed below, the petition will be denied. 20 21 22 BACKGROUND A. Procedural History Garibay is in prison serving a 10-year sentence following his 2006 convictions of 23 manufacturing a controlled substance, inflicting corporal injury on a spouse, and child 24 endangerment, with a sentence enhancement for firearm possession. His habeas petition does 25 not challenge that conviction, but instead challenges a decision by prison officials on or 26 about May 22, 2007 to validate him as a gang associate with the result that he was placed in 27 administrative segregation indefinitely. 28 Before filing his petition in this court, Garibay had filed unsuccessful petitions in state 1 courts, including the California Supreme Court. The Del Norte County Superior Court 2 denied Garibay's petition "because Petitioner has failed to establish sufficient grounds or 3 circumstances upon which relief may be granted. [¶] Sufficient evidence supported the 4 administrative decision. No abuse of administrative discretion is shown." Resp. Ex. R. The 5 California Court of Appeal and the California Supreme Court summarily denied Garibay's 6 petitions. Resp. Exs. U-V. 7 In his federal habeas petition, Garibay alleged three claims. The court dismissed two 8 of the claims and found cognizable his due process claim that the evidence used to validate 9 him as a gang associate was unreliable and insufficient. The court ordered respondent to United States District Court For the Northern District of California 10 show cause why the petition should not be granted. Respondent filed an answer and 11 petitioner filed a traverse. The action is now ready for a decision on the merits. 12 B. 13 The Gang Validation Proceedings On or about May 22, 2007, Garibay was validated as an associate of the EME prison 14 gang while he was housed at North Kern State Prison. The validation was based on six items 15 which investigators believed demonstrated that Garibay was involved in activity on behalf of 16 the EME and was associated with EME members and associates. Garibay received copies of 17 five of the items and a confidential information disclosure report for the sixth item. The sixth 18 item had been deemed confidential because it contained material which, if known, would 19 jeopardize the safety of individuals and the prison. 20 A gang validation/rejection review form was prepared for Garibay and reviewed by 21 special agent Foster of the Special Services Unit. This form, dated May 22, 2007, stated that 22 a gang validation package was received with six source materials, and that the six items 23 described below met the requirements for validating the inmate as a gang affiliate. Resp. Ex. 24 B. The form also stated that, pursuant to the validation requirements in 15 Cal. Code Regs. § 25 3378, Garibay was validated as an associate of the Mexican Mafia (EME) prison gang. 26 27 28 The following six items were relied upon to determine that Garibay met the criteria for validation as a gang associate: (1) A CDC-128b (i.e., prison parlance for a memorandum) dated December 14, 2 2006, written by investigative services unit ("ISU") agent J. Wescott. Resp. Ex. C. The 2 CDC-128b reported on intercepted mail that was indicative of Garibay's association with 3 members/associates of the EME. The letter was an outgoing letter sent by inmate 4 Rodenbusch, who was housed in ad-seg and for whom EME validation proceedings were 5 pending. To surreptitiously communicate with an inmate in another facility, Rodenbush had 6 addressed the letter to a fictitious outside address and listed the sender on the envelope as 7 inmate Grande, so that, when it was returned as undeliverable to the fictitious address, the 8 envelope would be returned to Grande as the listed sender. Inmates Grande and Garibay 9 were housed in Facility A, whereas Rodenbusch was housed in ad-seg. Prison investigators 10 United States District Court For the Northern District of California 1 decoded some of the cryptic references in the letter and interpreted the letter. For example, 11 references to "my four leaf friend" and "greenflower" were interpreted to be references to 12 Garibay, whose nickname was "Clover;" a reference to "C.D.s" was interpreted to be a 13 reference to money; and directions to divide the "C.D.s" were interpreted to be directions for 14 dividing the prison drug profits. As interpreted by the prison investigator, Rodenbusch's 15 letter indicated that he had successfully communicated with Garibay regarding EME 16 activities and what was expected of Garibay to further the EME activities at Kern Valley's 17 facility A. As interpreted by the prison investigator, the letter also provided instructions for 18 Grande as well as Garibay about the distribution of drug profits, including that a certain 19 portion was to be sent to "Old Girl," a/k/a Yolanda "Yoli" Carlos, who was the wife of a 20 validated member of the EME. 21 (2) A CDC-128b dated December 15, 2006 also written by ISU agent Wescott 22 that discussed a second outgoing letter from Rodenbusch to a fictitious address and listed 23 inmate Grande as the sender so the letter eventually would make it to inmate Grande. Resp. 24 Ex. D. The letter was interpreted as providing information also intended for Garibay. As 25 interpreted, the letter instructed Garibay and Grande to send part of the proceeds from drug 26 sales on facility A to an EME member and his wife to further EME activities, and then to 27 send the rest of the money to Rodenbusch for taxes owed to validated EME members and 28 associates in ad-seg. 3 (3) A CDC-128b dated November 15, 2006 written by correctional officer H. 1 2 Gonzales, who wrote that, while escorting Rodenbusch in the prison, he overheard 3 Rodenbusch say to inmate Shores, "'tell my four leaf friend that I will be getting at him.'" 4 Resp. Ex. E. Correctional officer Gonzales reported but did not interpret the message. The 5 Institutional Gang Investigations ("IGI") agent reviewing Garibay's case interpreted the 6 comment to be a message from Rodenbusch to the inmate to tell Garibay – whose nickname 7 was Clover and who was housed in the same facility as the inmate to whom the comment 8 was made – that Rodenbusch will be sending him a message. Resp. Ex. N. The IGI agent 9 also interpreted the comment to mean that the message would be about "EME activities and United States District Court For the Northern District of California 10 what is expected of 'S' to further the EME activities on Facility 'A.'" Resp. Ex. N. (While 11 that may be the expected content of the message to be sent, the assertion as to content is 12 speculative.) 13 (4) A CDC-128b dated January 16, 2007 written by ISU agent Thomas that 14 describes and interprets the contents of a recorded telephone call placed on December 10, 15 2006 by Garibay. Resp. Ex. F Garibay made the phone call from prison to parolee 16 Mendoza, who then set up a three-way call with Sally Rodriguez, a/k/a "Big Squirrel." As 17 decoded and interpreted by agent Thomas, the parolee and Garibay discussed inmate Filo 18 (who was a validated EME associate in ad-seg), as well as business dealings for the EME 19 inside North Kern prison and on the street. As interpreted, Garibay advised parolee Mendoza 20 to speak with Big Squirrel in person so they could set up business dealings for the EME. 21 (5) A CDC-128b dated January 17, 2007 written by ISU agent Thomas that 22 describes and interprets the contents of a recorded telephone call placed on October 22, 2006 23 to the same telephone number to which the December 10, 2006 call discussed in the 24 preceding paragraph was made. Resp. Ex. G. The October 22 telephone call was between 25 Garibay, parolee Mendoza, Big Squirrel and Rodenbusch. As interpreted by agent Thomas, 26 Rodenbusch and Garibay were discussing with the outsiders the narcotics trafficking into the 27 North Kern prison. Mendoza also set up a three-way call to Rodriguez and they spoke about 28 Yoli, the wife of a validated EME member. Garibay then handed the telephone to 4 1 Rodenbusch, who discussed EME activity relayed from an EME member at Pelican Bay and 2 told Rodriguez that the information was very important because it was coming from Carlos, a 3 very influential EME member. 4 (6) Three kites (prison parlance for inmate notes) discovered by investigators in Garibay's personal property and memorialized in a CDC-128b dated January 17, 2007. 6 See Resp. Ex. H. Copies of the kites were not shown to Garibay; he received only a 7 confidential information disclosure report for these items that had been deemed confidential 8 because they contained material which, if known, would jeopardize the safety of individuals 9 and the prison. The confidential information disclosure report notified Garibay that the kites 10 United States District Court For the Northern District of California 5 had been recovered and indicated their significance in relation to EME activities. The kites 11 had the "names, CDC #s, monikers and gang sets of numerous active Southern Hispanic 12 disruptive group members/associates on Facility 'A'" including two inmates who were 13 awaiting EME validation. Id. The IGI reviewer wrote that Garibay's possession of the kites 14 "shows that [he] is keeping a log of all the active Southern Hispanics who are loyal to the 15 EME and their illegal activities at NKSP," and that Garibay "is placing himself in a position 16 of leadership for the Surenos and for the EME." Resp. Ex. N at 2. 17 The six items used for validation purposes had been reviewed with Garibay on or 18 about January 25, 2007 by institutional gang investigations agent M. West. See Resp. Ex. O. 19 According to West's memorandum, he conducted an interview "to allow inmate Garibay the 20 opportunity to dispute the validation points being used against him during the validation 21 process." Id. Garibay provided to West a handwritten two-sided document "with rebuttal 22 statements for all source document used as validation points against him for association with 23 the Mexican Mafia (EME) prison gang." Id. West read the rebuttal statements and "asked 24 inmate Garibay if he had any additional information and/or any other statements to add to his 25 rebuttal. Inmate Garibay indicated he did not." Id. At the conclusion of the interview, 26 Garibay "was informed that all of the information he (Garibay) provided would be 27 documented and forwarded to the LEIU." Id. 28 Garibay attended an institutional classification committee ("ICC") hearing on June 7, 5 1 2007 at North Kern. The ICC memo stated that Garibay was an active participant in the 2 committee's actions. The ICC acted to impose an indeterminate SHU term due to his gang 3 validation, and that Garibay was to remain in ad-seg at North Kern pending "CSR" review 4 and transfer to a SHU. See Resp. Ex. I. On June 19, 2007, a classification staff 5 representative endorsed Garibay for transfer to Pelican Bay State Prison and an indeterminate 6 SHU term. Resp. Ex. J. The classification staff representative noted that Garibay had 7 "proven to be a threat to the security of the institution by his association with a prison gang 8 engaged in a criminal conspiracy against the safety of others," and noted the gang validation 9 documents. Id. United States District Court For the Northern District of California 10 11 12 13 Garibay remained in North Kern's ad-seg unit until he was transferred to Pelican Bay on December 18, 2007, and placed in the SHU on January 17, 2008. JURISDICTION AND VENUE This court has subject matter jurisdiction over this habeas action for relief under 28 14 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged 15 action concerns the execution of the sentence of a prisoner housed at a prison in Del Norte 16 County, within this judicial district. 28 U.S.C. §§ 84, 2241(d). 17 EXHAUSTION 18 Prisoners in state custody who wish to challenge collaterally in federal habeas 19 proceedings either the fact or length of their confinement are required first to exhaust state 20 judicial remedies, either on direct appeal or through collateral proceedings, by presenting the 21 highest state court available with a fair opportunity to rule on the merits of each and every 22 claim they seek to raise in federal court. See 28 U.S.C § 2254(b), (c). The parties do not 23 dispute that the state judicial remedies were exhausted for the claim in the petition. 24 STANDARD OF REVIEW 25 This court may entertain a petition for writ of habeas corpus “in behalf of a person in 26 custody pursuant to the judgment of a State court only on the ground that he is in custody in 27 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 28 The petition may not be granted with respect to any claim that was adjudicated on the merits 6 1 in state court unless the state court's adjudication of the claim: “(1) resulted in a decision that 2 was contrary to, or involved an unreasonable application of, clearly established Federal law, 3 as determined by the Supreme Court of the United States; or (2) resulted in a decision that 4 was based on an unreasonable determination of the facts in light of the evidence presented in 5 the State court proceeding.” 28 U.S.C. § 2254(d). 6 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state 7 court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of 8 law or if the state court decides a case differently than [the] Court has on a set of materially 9 indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). United States District Court For the Northern District of California 10 “Under the ‘unreasonable application’ clause, a federal habeas court may grant the 11 writ if the state court identifies the correct governing legal principle from [the] Court’s 12 decision but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 13 413. “[A] federal habeas court may not issue the writ simply because that court concludes in 14 its independent judgment that the relevant state-court decision applied clearly established 15 federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” 16 Id. at 411. A federal habeas court making the “unreasonable application” inquiry should ask 17 whether the state court’s application of clearly established federal law was “objectively 18 unreasonable.” Id. at 409. 19 20 DISCUSSION A. No "Clearly Established Federal Law" From The Supreme Court On The Claimed 21 Right 22 In a case governed by 28 U.S.C. § 2254(d), the first – and often dispositive – step is 23 identifying out the governing law. Although the normal search for the law may be wide- 24 ranging, §2254(d) places strict limits on that search by limiting the source to "clearly 25 established Federal law, as determined by the Supreme Court of the United States." "Clearly 26 established federal law, as determined by the Supreme Court of the United States” refers to 27 “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of 28 the relevant state-court decision." Williams, 529 U.S. at 412; Norris v. Morgan, 622 F.3d 7 1 1276, 1285 (9th Cir. 2010). If there is no Supreme Court precedent that controls on the legal 2 issue raised by a petitioner in state court, the state court’s decision cannot be contrary to, or 3 an unreasonable application of, clearly-established federal law. Carey v. Musladin, 549 U.S. 4 70, 77 (2006). 5 The Supreme Court holdings on prisoners' rights in administrative segregation 6 placement decisions are quite limited and are most recently found in Sandin v. Conner, 515 7 U.S. 472 (1995), which set out the criteria for determining whether there is a protected 8 liberty interest, and Wilkinson v. Austin, 545 U.S. 209 (2005), which both held that an 9 indefinite placement in a harsh ad-seg unit deprived inmates of a protected liberty interest United States District Court For the Northern District of California 10 and summarized the procedural protections that already had been determined to exist by the 11 Supreme Court for such a deprivation. 12 The Due Process Clause of the Fourteenth Amendment of the U.S. Constitution 13 protects individuals against governmental deprivations of life, liberty or property without due 14 process of law. Changes in conditions of confinement for a prison inmate may amount to a 15 deprivation of a constitutionally protected liberty interest, provided that the liberty interest in 16 question is one of real substance. Sandin v. Conner, 515 U.S. at 477-87. Interests that are 17 procedurally protected by the Due Process Clause may arise from two sources: the Due 18 Process Clause itself and laws of the states. See Meachum v. Fano, 427 U.S. 215, 223-27 19 (1976). In the prison context, these interests are generally ones pertaining to liberty. 20 Changes in conditions so severe as to affect the sentence imposed in an unexpected manner 21 implicate the Due Process Clause itself, whether or not they are authorized by state law. See 22 Sandin, 515 U.S. at 484 (citing Vitek v. Jones, 445 U.S. 480, 493 (1980) (transfer to mental 23 hospital), and Washington v. Harper, 494 U.S. 210, 221-22 (1990) (involuntary 24 administration of psychotropic drugs)). Deprivations that are less severe or more closely 25 related to the expected terms of confinement may also amount to deprivations of a 26 procedurally protected liberty interest, provided that state statutes or regulations narrowly 27 restrict the power of prison officials to impose the deprivation and that the liberty in question 28 is one of "real substance." See id. at 477-87. An interest of "real substance" generally will 8 1 be limited to freedom from restraint that imposes "atypical and significant hardship on the 2 inmate in relation to the ordinary incidents of prison life" or "will inevitably affect the 3 duration of [a] sentence," Id. at 484, 487. The Supreme Court later held that indefinite 4 placement in a restrictive “supermax” facility, where inmates are not eligible for parole 5 consideration, imposes an “atypical and significant hardship within the correctional context.” 6 See Wilkinson, 545 U.S. at 223-25 7 When placement in ad-seg implicates a protected liberty interest, the next step is to determine what process is due. In Wilkinson, the Court explained that ad-seg placement was 9 not the same as parole revocation or revocation of good time credits, so that the "more 10 United States District Court For the Northern District of California 8 formal, adversary type procedures" in Wolff v. McDonnell, 418 U.S. 539 (1974), and 11 Morrissey v. Brewer, 408 U.S. 480, 489 (1972), are "not useful." Wilkinson, 545 U.S. at 12 228. "Where the inquiry draws more on the experience of prison administrators, and where 13 the State's interest implicates the safety of other inmates and prison personnel, the informal, 14 nonadversary procedures set forth in [Greenholtz v. Inmates of Neb. Penal and Correctional 15 Complex, 442 U.S. 1, 15 (1979), and Hewitt v. Helms, 459 U.S. 460 (1983)], provide the 16 appropriate model." Wilkinson, 545 U.S. at 228-29. In Greenholtz, the Court had 17 determined that the level of process due in parole suitability decision included an opportunity 18 to be heard and notice of any adverse decision; in Hewitt, the Court had determined that the 19 level of process due for inmates being transferred to ad-seg included some notice of the 20 charges and an opportunity to be heard. Wilkinson, 545 U.S. at 229. "[T]hese cases remain 21 instructive for their discussion of the appropriate level of procedural safeguards." Id. The 22 Court thus upheld the state's policy in Wilkinson that provided "informal, nonadversary 23 procedures comparable to those [it] upheld in Greenholtz and Hewitt," and found "no further 24 procedural modifications are necessary in order to satisfy due process under" the test in 25 Mathews v. Eldridge, 424 U.S. 319 (1976). Wilkinson, 545 U.S. at 229. To summarize, the 26 "clearly established federal law" for purposes of § 2254(d) requires that an inmate being 27 transferred to ad-seg that amounts to an atypical and significant hardship must be provided 28 with (1) notice of the charges or reasons ad-seg placement is being considered, (2) an 9 1 opportunity to be heard, and (3) notice of any adverse decision such as the decision to place 2 him in ad-seg as a validated gang affiliate. Significantly, the Supreme Court has not held that the procedural protections include 3 4 any evidentiary sufficiency requirement for the decision to place an inmate in ad-seg. In a 5 prison disciplinary hearing, due process requires that there be an evidentiary basis for the 6 prison officials' decision. See Superintendent v. Hill, 472 U.S. 445, 455 (1985) (standard is 7 met if there is "some evidence" from which the conclusion of the administrative tribunal 8 could be deduced). The Supreme Court has not extended Superintendent v. Hill to the ad- 9 seg placement context. Cf. Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011) (implicitly United States District Court For the Northern District of California 10 declining to find, for purposes of § 2254(d) habeas analysis, that constitutional protections 11 required for parole denial included any evidentiary sufficiency requirement). 12 The Ninth Circuit and district courts within the circuit have applied the "some 13 evidence" standard to an inmate's placement in SHU for gang affiliation. See, e.g., Bruce v. 14 Ylst, 351 F.3d 1283, 1287-88 (9th Cir. 2003). And some lower courts have imposed a 15 requirement that the evidence relied upon to confine an inmate to the SHU for gang 16 affiliation must have "some indicia of reliability" to satisfy due process requirements. See 17 Madrid v. Gomez, 889 F. Supp. 1146, 1273-74 (N.D. Cal. 1995); see also Toussaint v. 18 McCarthy, 926 F.2d 800, 803 (9th Cir. 1990) (considering accuracy of polygraph results used 19 to support ad-seg placement). However, these lower court authorities cannot support relief 20 in a habeas action to which § 2254(d) applies where there is no Supreme Court holding on 21 point. 22 With the law limited to the Supreme Court's holdings, analysis of Garibay's case is 23 rather simple. First, there is a protected liberty interest at issue. Indefinite placement in 24 California’s secure housing units (“SHU”) generally renders indeterminately sentenced 25 inmates ineligible for parole consideration and results in those with determinate terms 26 spending the rest of their terms in the SHU. The SHU conditions are severe. See Madrid, 27 889 F. Supp. at 1127-37. Facing years in the extreme conditions of the SHU, California 28 prisoners have a liberty interest in not being placed indefinitely in the SHU. Accord 10 1 Wilkinson, 545 U.S. at 224 (necessity of harsh conditions in light of danger that high-risk 2 inmates pose to prison officials and other inmates does not diminish "conclusion that 3 conditions give rise to a liberty interest in their avoidance"). Garibay is serving a 4 determinate 10-year term, rather than an indeterminate life term, so his placement in the SHU 5 will not affect parole suitability decisions. Nonetheless, years in the harsh conditions of the 6 Pelican Bay SHU presents an atypical and significant hardship and therefore amounts to a 7 deprivation of a protected liberty interest. 8 9 Second, in light of the absence of Supreme Court authority imposing any evidentiary sufficiency requirement or any requirement for the reliability of evidence, federal habeas United States District Court For the Northern District of California 10 relief cannot be granted to Garibay on the basis that the placement decision is based on 11 insufficient evidence or evidence that lacks sufficient indicia of reliability. Garibay's due 12 process claim that challenges only the sufficiency and reliability of the evidence therefore 13 must be denied. 14 As another jurist has noted, "AEDPA deference can be a bitter pill to swallow. . . In 15 some habeas cases, we must reject what appear to be valid constitutional claims because 16 petitioner's rights have not yet been clearly established by the Supreme Court." Wilson v. 17 Knowles, No. 07-17318, slip op. 4353, 4363 (9th Cir. Apr. 1, 2011) (Kozinski, C.J., 18 dissenting). But defer the court must, and with such deference, relief is foreclosed. Unlike 19 Judge Kosinki's concern in Wilson, however, AEDPA deference will not result in the 20 rejection of an otherwise valid claim here for the reasons discussed in the next section. 21 B. 22 There Was Some Evidence To Support The Decision Even if Superintendent v. Hill did apply to an ad-seg placement decision, Garibay's 23 claim would fail because there was sufficient evidence to support the decision to validate him 24 as a gang affiliate. Six pieces of evidence were used by prison officials to conclude that 25 Garibay met the criteria for validation as an associate of the EME prison gang. The six 26 pieces of evidence – individually and collectively – provided some evidence to support the 27 validation decision. Those items provided evidence that Garibay was implicated in EME 28 gang activity by his own words on the telephone and by other inmates' references to him and 11 1 his activities. The source items fit within the CDCR’s criteria for evidence of association 2 that could be used for validation under the regulation, which provided in May 2007: 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The determination of a gang identification shall reference each independent source item in the inmate/parolee’s central file. The sources shall be based on the following criteria: . . . (C) Written material. Any material or documents evidencing gang affiliation such as the membership or enemy lists, constitutions, organizational structures, codes, training material, etc., of specific gangs. Staff shall articulate why, based on either the explicit or coded content, the written material is reliable evidence of association or membership with the gang. . . . (G) Association. Information related to the inmate/parolee’s association with validated gang affiliates. Information including addresses, names, identities and reasons why such information is indicative of association with a prison gang or disruptive group. . . . (L) Communications. Documentation of telephone conversations, conversations between inmates, mail, notes, greeting cards, or other communication, including coded messages evidencing gang activity. Staff shall articulate why, based on either the explicit or coded content, the communication is reliable evidence of association or membership with the gang. 15 Cal. Code Regs. § 3378(c)(8). Although evidence of criminal activity may be used to validate an inmate, it is not the only kind of evidence that may be used. See 15 Cal. Code Regs. § 3000 ("gang" defined), § 3378(c) (gang involvement investigation and sources). Garibay appears to argue that the evidence must show that he particularly posed an immediate threat or endangered institutional security. See Petition, p. 11. In light of the well-recognized danger posed by prison gangs, prison officials properly could determine that, by being involved in gang activities, an inmate does pose a threat and endanger institutional security because prison gangs endanger institutional security. In other words, prison officials did not have to prove that the individual engaged in a criminal act or an act that warranted a disciplinary write-up in order to validate him as a gang member or associate. The court does not decide anew whether to validate him, but only whether there was some evidence to support the decision reached by prison officials. Here, there was. At least five of the six items showed Garibay's connection to EME activities. Only the comment a guard overheard inmate Rodenbusch make (i.e., item # 3) would be insufficient alone to support the validation. The regulation required at least one of the items "be a direct link to a 12 1 current or former validated member or associate of the gang," 15 Cal. Code Regs. § 2 3378(c)(4), and here the state court reasonably could have concluded there were at least two. 3 Although the sender of the correspondence had not yet been validated at the time he sent the 4 two letters, the California court reasonably could have determined that the two letters in 5 which Rodenbusch instructed Garibay to send money to an EME gang member and his wife 6 showed a direct link to an EME member. See Harrington v. Richter, 131 S. Ct. 770, 786 7 (2011) (when confronted by summary denial in state court, the federal court "must determine 8 what arguments or theories supported or . . . could have supported, the state court's decision; 9 and then it must ask whether it is possible fairminded jurists could disagree that those United States District Court For the Northern District of California 10 arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] 11 Court"). Thus, even if Superintendent v. Hill's some evidence requirement was a 12 constitutionally required procedural protection for ad-seg placement, the California court's 13 rejection of his due process claim would not have been not contrary to or an unreasonable 14 application of Superintendent v. Hill. 15 A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a 16 case in which "reasonable jurists would find the district court’s assessment of the 17 constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 18 19 20 21 22 CONCLUSION The petition for writ of habeas corpus is DENIED on the merits. The clerk shall close the file. IT IS SO ORDERED. DATED: May 23, 2011 Marilyn Hall Patel United States District Judge 23 24 25 26 27 28 13

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