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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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PHUOC VONG,

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No. C 09-5851 WHA (PR)

Petitioner,

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For the Northern District of California

United States District Court

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ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS

v.
KATHLEEN ALLISON, Warden,
Respondent.
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INTRODUCTION
Petitioner, a California prisoner, filed this pro se petition for a writ of habeas corpus

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challenging disciplinary proceedings at his prison at which he was found guilty of possessing a

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weapon and had 360 of his “good time” credits taken away. Respondent was ordered to show

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cause why the petition should not be granted based upon the three cognizable claims.

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Respondent moved to dismiss the petition because the third claim – that petitioner was not able

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to present all of the evidence he wished to present at his disciplinary hearing – was not

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exhausted. The motion was granted and petitioner was directed to decide whether to seek a stay

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while he exhausted the third claim or to abandon the third claim proceed only with the two

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exhausted claims. He chose the latter course. Respondent has filed an answer and a

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memorandum of points and authorities in support of it in which he argues that the two

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exhausted claims are without merit. The case was then reassigned to the undersigned. For the

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reasons set forth below, the petition is DENIED.

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STATEMENT
On January 17, 2008, petitioner and four other inmates were squatting near the sit-up

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benches on the prison yard when two correctional officers, Salgado and Rodriguez, approached.

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They summoned petitioner and Huynh, one of the other squatting inmates, and searched them.

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After finding no contraband, the officers instructed petitioner and Huynh to go walk on the

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track. The officers then inspected the area where petitioner and the other inmates had been

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squatting, and found a weapon fashioned from sharpened metal and white plastic buried in the

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dirt. The officers then handcuffed the inmates.

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Petitioner was charged with violating prison rules against inmates possessing weapons,
and prison officials held a disciplinary hearing on those charges. Officers Salgado and

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For the Northern District of California

United States District Court

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Rodriguez reported that they saw petitioner and Huynh kneeling down and apparently digging

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in the dirt near the sit-up benches, and that they inspected the area and found the weapon buried

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in the dirt. Petitioner was given an opportunity to present witnesses and evidence in his defense

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at the hearing. His requests for fingerprinting of the weapon, for a DNA sample, to present

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photographs of his hands, and for a review of the videotape of the yard at that time were denied,

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however. Based on the officers’ reports, prison officials found petitioner guilty of possessing

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an “inmate-manufactured weapon.” Petitioner forfeited 360 days of “good-time” credits, was

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sent to the Secured Housing Unit (“SHU”) for one year, and his classification score was raised

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by 24 points.

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He filed a habeas petition in the Monterey County Superior Court claiming that there

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was insufficient evidence to support the disciplinary findings. The petition was denied. He

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appealed that decision to the California Court of Appeal and the California Supreme Court, and

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both appeals were summarily denied. He then filed the instant federal petition.

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ANALYSIS
Petitioner’s remaining claims are that a preponderance of the evidence did not show that

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he was guilty of possessing a weapon, nor was there some evidence to support such a finding.

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A “preponderance of the evidence” that an inmate violated prison rules is required by

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Section 2932(a)(5) of the California Penal Code in order for prison officials to impose

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discipline. Whether or not this state law requirement was satisfied does not matter here,

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however, because federal habeas relief is only available on the basis of a violation of federal

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law, not state law. 28 U.S.C. § 2254(a); Swarthout v. Cooke, 131 S. Ct. 859, 861-62 (2011).

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Federal law, specifically the federal constitutional right to due process, only requires “some

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evidence” in the record from which the prison officials’ conclusion could be deduced. See

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Superintendent v. Hill, 472 U.S. 445, 454-55 (1985); Burnsworth v. Gunderson, 179 F.3d 771,

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773-74 (9th Cir. 1999). Consequently, federal habeas relief is not available on the grounds that

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the disciplinary finding was not supported by a preponderance of the evidence.
Petitioner alternatively argues that there was not even “some evidence” supporting the

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For the Northern District of California

United States District Court

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finding that he was in possession of a weapon. To meet the “some evidence” standard, an

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examination of the entire record is not required nor is an independent assessment of the

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credibility of witnesses or weighing of the evidence. Hill, 472 U.S. at 455. The relevant

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question is whether there is any evidence in the record that could support the conclusion

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reached by the disciplinary board. Ibid. Revocation of good-time credits is not comparable to a

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criminal conviction and neither the amount of evidence necessary to support such a conviction,

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nor any other standard greater than some evidence, applies. Id. at 456. The Ninth Circuit

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additionally has held that there must be some indicia of reliability of the information that forms

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the basis for prison disciplinary actions. Cato v. Rushen, 824 F.2d 703, 704-05 (9th Cir. 1987).

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The state courts reasonably found that there was “some evidence” that petitioner

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possessed an inmate-manufactured weapon. (federal habeas relief is not available if state courts

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reasonably applied correct federal standard) (citing 28 U.S.C. 2254(d)(1)). Two officers

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reported that they saw petitioner and Huynh kneeling and apparently digging the dirt in the

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prison yard, and when they searched that area they found a weapon buried in the dirt. From this

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evidence, prison officials could conclude that petitioner and Huynh had either buried the

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weapon there or that they knew the weapon was there and they were attempting to retrieve it.

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The evidence had sufficient indicia of reliability insofar as it consisted of first-hand

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observations by two officers who corroborated each other. See or Cf. Cato v. Rushen, 824 F.2d
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703, 704-05 (9th Cir. 1987) (uncorroborated hearsay statement of confidential informant with

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inconclusive polygraph not sufficiently reliable); see Zimmerlee v. Keeney, 831 F.2d 183, 186-

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87 (9th Cir. 1987) (reliability may be established by among other things corroboration or

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firsthand knowledge of prison officials). Consequently, there was enough evidence to meet the

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low threshold of “some evidence” supporting the decision that petitioner possessed an inmate-

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manufactured weapon.

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Petitioner complains that the officers stated in their reports only that petitioner

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“appeared” to be digging, not that they actually saw him digging. He also cites the fact that no

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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

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For the Northern District of California

United States District Court

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of such evidence does not preclude his possession of the weapon. That he “appeared” to the

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officers to be digging in the dirt would be consistent with the officers actually observing him

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digging, or having reason to believe he had been digging. The absence of dirt on his hands does

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not preclude his possession of the weapon as another inmate might have buried it for him, or he

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could have used a stick or another object to dig. Similarly, the fact that no witnesses saw the

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officers retrieve the weapon does not preclude their having done so. In short, the absence of

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stronger evidence that he possessed the weapon does not mean there was not some evidence

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from which prison officials could conclude that he did.

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Petitioner argues that there is only a 1.5% chance that he is guilty because over 500

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other inmates had access to the area where the weapon was found. This ignores the fact that

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petitioner was one of only few inmates squatting or kneeling in the area of the weapon

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immediately before it was found, and one of only two whom officers reported were digging in

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the area. He also argues that he and Huynh could not have both possessed the weapon because

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only one weapon was found. However, more than one person can plainly share access to,

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knowledge of, and control of a single object.

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Petitioner has not shown that the state courts erred in finding “some evidence” to

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support the disciplinary decision of prison officials. Consequently, he is not entitled to federal

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habeas relief.
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CONCLUSION

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The petition for a writ of habeas corpus is DENIED.

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Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to

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rule on whether a petitioner is entitled to a certificate of appealability in the same order in

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which the petition is denied. Petitioner has failed to make a substantial showing that his claims

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amounted to a denial of his constitutional rights or demonstrate that a reasonable jurist would

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find the denial of his claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Consequently, no certificate of appealability is warranted in this case.

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IT IS SO ORDERED.

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Dated: November
For the Northern District of California

United States District Court

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The clerk shall enter judgment and close the file.

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, 2012.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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