Vong v. Clark

Filing 24

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS re 1 Petition for Writ of Habeas Corpus filed by Phuoc Vong. Signed by Judge William Alsup on 11/28/12. (Attachments: # 1 Certificate/Proof of Service)(dt, COURT STAFF) (Filed on 11/28/2012)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 PHUOC VONG, 12 13 14 No. C 09-5851 WHA (PR) Petitioner, 11 For the Northern District of California United States District Court 10 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. KATHLEEN ALLISON, Warden, Respondent. / 15 16 17 INTRODUCTION Petitioner, a California prisoner, filed this pro se petition for a writ of habeas corpus 18 challenging disciplinary proceedings at his prison at which he was found guilty of possessing a 19 weapon and had 360 of his “good time” credits taken away. Respondent was ordered to show 20 cause why the petition should not be granted based upon the three cognizable claims. 21 Respondent moved to dismiss the petition because the third claim – that petitioner was not able 22 to present all of the evidence he wished to present at his disciplinary hearing – was not 23 exhausted. The motion was granted and petitioner was directed to decide whether to seek a stay 24 while he exhausted the third claim or to abandon the third claim proceed only with the two 25 exhausted claims. He chose the latter course. Respondent has filed an answer and a 26 memorandum of points and authorities in support of it in which he argues that the two 27 exhausted claims are without merit. The case was then reassigned to the undersigned. For the 28 reasons set forth below, the petition is DENIED. 1 2 STATEMENT On January 17, 2008, petitioner and four other inmates were squatting near the sit-up 3 benches on the prison yard when two correctional officers, Salgado and Rodriguez, approached. 4 They summoned petitioner and Huynh, one of the other squatting inmates, and searched them. 5 After finding no contraband, the officers instructed petitioner and Huynh to go walk on the 6 track. The officers then inspected the area where petitioner and the other inmates had been 7 squatting, and found a weapon fashioned from sharpened metal and white plastic buried in the 8 dirt. The officers then handcuffed the inmates. 9 Petitioner was charged with violating prison rules against inmates possessing weapons, and prison officials held a disciplinary hearing on those charges. Officers Salgado and 11 For the Northern District of California United States District Court 10 Rodriguez reported that they saw petitioner and Huynh kneeling down and apparently digging 12 in the dirt near the sit-up benches, and that they inspected the area and found the weapon buried 13 in the dirt. Petitioner was given an opportunity to present witnesses and evidence in his defense 14 at the hearing. His requests for fingerprinting of the weapon, for a DNA sample, to present 15 photographs of his hands, and for a review of the videotape of the yard at that time were denied, 16 however. Based on the officers’ reports, prison officials found petitioner guilty of possessing 17 an “inmate-manufactured weapon.” Petitioner forfeited 360 days of “good-time” credits, was 18 sent to the Secured Housing Unit (“SHU”) for one year, and his classification score was raised 19 by 24 points. 20 He filed a habeas petition in the Monterey County Superior Court claiming that there 21 was insufficient evidence to support the disciplinary findings. The petition was denied. He 22 appealed that decision to the California Court of Appeal and the California Supreme Court, and 23 both appeals were summarily denied. He then filed the instant federal petition. 24 25 ANALYSIS Petitioner’s remaining claims are that a preponderance of the evidence did not show that 26 he was guilty of possessing a weapon, nor was there some evidence to support such a finding. 27 A “preponderance of the evidence” that an inmate violated prison rules is required by 28 2 1 Section 2932(a)(5) of the California Penal Code in order for prison officials to impose 2 discipline. Whether or not this state law requirement was satisfied does not matter here, 3 however, because federal habeas relief is only available on the basis of a violation of federal 4 law, not state law. 28 U.S.C. § 2254(a); Swarthout v. Cooke, 131 S. Ct. 859, 861-62 (2011). 5 Federal law, specifically the federal constitutional right to due process, only requires “some 6 evidence” in the record from which the prison officials’ conclusion could be deduced. See 7 Superintendent v. Hill, 472 U.S. 445, 454-55 (1985); Burnsworth v. Gunderson, 179 F.3d 771, 8 773-74 (9th Cir. 1999). Consequently, federal habeas relief is not available on the grounds that 9 the disciplinary finding was not supported by a preponderance of the evidence. Petitioner alternatively argues that there was not even “some evidence” supporting the 11 For the Northern District of California United States District Court 10 finding that he was in possession of a weapon. To meet the “some evidence” standard, an 12 examination of the entire record is not required nor is an independent assessment of the 13 credibility of witnesses or weighing of the evidence. Hill, 472 U.S. at 455. The relevant 14 question is whether there is any evidence in the record that could support the conclusion 15 reached by the disciplinary board. Ibid. Revocation of good-time credits is not comparable to a 16 criminal conviction and neither the amount of evidence necessary to support such a conviction, 17 nor any other standard greater than some evidence, applies. Id. at 456. The Ninth Circuit 18 additionally has held that there must be some indicia of reliability of the information that forms 19 the basis for prison disciplinary actions. Cato v. Rushen, 824 F.2d 703, 704-05 (9th Cir. 1987). 20 The state courts reasonably found that there was “some evidence” that petitioner 21 possessed an inmate-manufactured weapon. (federal habeas relief is not available if state courts 22 reasonably applied correct federal standard) (citing 28 U.S.C. 2254(d)(1)). Two officers 23 reported that they saw petitioner and Huynh kneeling and apparently digging the dirt in the 24 prison yard, and when they searched that area they found a weapon buried in the dirt. From this 25 evidence, prison officials could conclude that petitioner and Huynh had either buried the 26 weapon there or that they knew the weapon was there and they were attempting to retrieve it. 27 The evidence had sufficient indicia of reliability insofar as it consisted of first-hand 28 observations by two officers who corroborated each other. See or Cf. Cato v. Rushen, 824 F.2d 3 1 703, 704-05 (9th Cir. 1987) (uncorroborated hearsay statement of confidential informant with 2 inconclusive polygraph not sufficiently reliable); see Zimmerlee v. Keeney, 831 F.2d 183, 186- 3 87 (9th Cir. 1987) (reliability may be established by among other things corroboration or 4 firsthand knowledge of prison officials). Consequently, there was enough evidence to meet the 5 low threshold of “some evidence” supporting the decision that petitioner possessed an inmate- 6 manufactured weapon. 7 Petitioner complains that the officers stated in their reports only that petitioner 8 “appeared” to be digging, not that they actually saw him digging. He also cites the fact that no 9 dirt was found on petitioner’s hands or fingernails, and that no witnesses saw the officers “actually retrieve” the weapon from the area where petitioner had been squatting. The absence 11 For the Northern District of California United States District Court 10 of such evidence does not preclude his possession of the weapon. That he “appeared” to the 12 officers to be digging in the dirt would be consistent with the officers actually observing him 13 digging, or having reason to believe he had been digging. The absence of dirt on his hands does 14 not preclude his possession of the weapon as another inmate might have buried it for him, or he 15 could have used a stick or another object to dig. Similarly, the fact that no witnesses saw the 16 officers retrieve the weapon does not preclude their having done so. In short, the absence of 17 stronger evidence that he possessed the weapon does not mean there was not some evidence 18 from which prison officials could conclude that he did. 19 Petitioner argues that there is only a 1.5% chance that he is guilty because over 500 20 other inmates had access to the area where the weapon was found. This ignores the fact that 21 petitioner was one of only few inmates squatting or kneeling in the area of the weapon 22 immediately before it was found, and one of only two whom officers reported were digging in 23 the area. He also argues that he and Huynh could not have both possessed the weapon because 24 only one weapon was found. However, more than one person can plainly share access to, 25 knowledge of, and control of a single object. 26 Petitioner has not shown that the state courts erred in finding “some evidence” to 27 support the disciplinary decision of prison officials. Consequently, he is not entitled to federal 28 habeas relief. 4 1 CONCLUSION 2 The petition for a writ of habeas corpus is DENIED. 3 Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to 4 rule on whether a petitioner is entitled to a certificate of appealability in the same order in 5 which the petition is denied. Petitioner has failed to make a substantial showing that his claims 6 amounted to a denial of his constitutional rights or demonstrate that a reasonable jurist would 7 find the denial of his claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). 8 Consequently, no certificate of appealability is warranted in this case. 9 IT IS SO ORDERED. 11 Dated: November For the Northern District of California United States District Court 10 The clerk shall enter judgment and close the file. 28 , 2012. 12 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\WHA\HC.09\VONG5851.RUL.wpd 5

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