Flores v. Jacquez

Filing 34

ORDER Denying Petition for Writ of Habeas Corpus; Denying Certificate of Appealability. Signed by Judge Ronald M. Whyte on 2/21/13. (jg, COURT STAFF) (Filed on 2/21/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ISSAC FLORES,

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Petitioner,
vs.

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ACTING WARDEN GREG LEWIS,
Warden,

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Respondent.

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No. C 10-2773 RMW (PR)
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF
APPEALABILITY

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Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254 challenging a 2008 administrative decision to validate him as a

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prison gang member and order his continued housing in the Secured Housing Unit (“SHU”).

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Respondent was ordered to show cause why the writ should not be granted. Respondent has

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filed an answer, along with a supporting memorandum of points and authorities. Petitioner has

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filed a traverse. For the reasons stated below, the court DENIES petitioner’s petition for writ of

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habeas corpus.

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BACKGROUND

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In 1987, petition was convicted of conspiracy and second degree murder, and sentenced

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to a term of 16 years to life in state prison. In April 1996, petitioner was denied inactive status

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and validated as an active gang member of the Northern Structure Prison Gang. He continued to

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be housed in the SHU for an indeterminate term.

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In October 2008, the prison determined that four source items supported petitioner’s

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revalidation as a member of the Northern Structure Prison Gang. (Resp. Exs. 2, 4.) The first

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source item was a CDC 128B form, which indicated that on October 23, 2008, Correctional

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Officer Bonffil discovered a drawing of a “Mexican Pistolero” that included symbols of the

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“North Star,” which had been identified as a symbol used by members of the Northern Structure

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Prison Gang. (Resp. Ex. 2 at 2.) The second source item was a CDC 1030 confidential

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information disclosure form, which indicated that on July 15, 2008, Correctional Officer Harlow

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drafted a confidential memorandum noting that he searched a validated Northern Structure

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member’s personal property and found a piece of paper containing “Ghost Writing” that included

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petitioner’s identifying information, as well as identifying information of other validated

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members and associates of the Nuestra Familia and Northern Structure Prison Gangs. (Id. at 3.)

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The third source item was a CDC 1030 confidential information disclosure form, which

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indicated that on August 5, 2008, Correctional Sergeant A. Barneburg drafted a confidential

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memorandum noting that confidential information was recovered by prison staff on July 25,

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2008, identifying petitioner as an active member/associate of the Northern Structure Prison

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Gang. (Id. at 4.) The fourth source item was a CDC 1030 confidential information disclosure

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form, which indicated that on August 9, 2007, Correctional Sergeant J. Bales drafted a

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confidential debriefing report indicating that he received information from a confidential

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informant identifying petitioner as an active member/associate of the Northern Structure Prison

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Gang, and was in good standing. (Id. at 5.)
Petitioner challenges the October 2008 decision to deny him inactive status and retain

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him in the SHU.
DISCUSSION

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A.

Standard of Review
This court may entertain a petition for writ of habeas corpus “in behalf of a person in

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custody pursuant to the judgment of a state court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States.” 28 U.S .C. § 2254(a).

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Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a district court

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may not grant a petition challenging a state conviction or sentence on the basis of a claim that

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was reviewed on the merits in state court unless the state court’s adjudication of the claim “(1)

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resulted in a decision that was contrary to, or involved an unreasonable application of, clearly

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established federal law, as determined by the Supreme Court of the United States; or (2) resulted

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in a decision that was based on an unreasonable determination of the facts in light of the

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evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d). The first prong applies

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both to questions of law and to mixed questions of law and fact, Williams v. Taylor, 529 U.S.

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362, 384-86 (2000), while the second prong applies to decisions based on factual determinations,

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Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

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“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state

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court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of

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law or if the state court decides a case differently than [the] Court has on a set of materially

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indistinguishable facts.” Williams, 529 U.S. at 412-13. A state court decision is an

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“unreasonable application of” Supreme Court authority, falling under the second clause of

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§ 2254(d)(1), if the state court correctly identifies the governing legal principle from the

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Supreme Court’s decisions but “unreasonably applies that principle to the facts of the prisoner's

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case.” Id. at 413. The federal court on habeas review may not issue the writ “simply because

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that court concludes in its independent judgment that the relevant state-court decision applied

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clearly established federal law erroneously or incorrectly.” Id. at 411.

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Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual determination

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will not be overturned on factual grounds unless objectively unreasonable in light of the

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evidence presented in the state-court proceeding.” Miller–El, 537 U.S. at 340. The court must

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presume correct any determination of a factual issue made by a state court unless the petitioner

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rebuts the presumption of correctness by clear and convincing evidence. See 28 U.S.C. §

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2254(e)(1).

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B.

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Petitioner’s claims
Petitioner claims that the decision to revalidate him as an active gang member violated

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his First Amendment right to association, right to equal protection, and right to due process.

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Respondent argues that (1) the court lacks subject matter jurisdiction to hear petitioner’s claims

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because he does not challenge the legality or duration of his confinement, (2) petitioner fails to

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state a First Amendment or equal protection claim, (3) petitioner does not have a federal liberty

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interest in being free from the SHU, and (4) petitioner has received all the process he is due.

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First Amendment

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Plaintiff alleges that his First Amendment right of association was violated by his

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validation as a gang member and placement in the SHU. Plaintiff claims that as a result of these

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decisions, he is prohibited from associating with other inmates from Northern California. (Pet.

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at 13.)

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A federal court may only grant a petition for writ of habeas corpus if the petitioner can

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show that “he is in custody in violation of the Constitution . . . .” 28 U.S.C. § 2254(a). A habeas

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corpus petition is the correct method for a prisoner to challenge the “legality or duration” of his

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confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991), quoting Preiser v. Rodriguez,

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411 U.S. 475, 485 (1973). Here, petitioner’s First Amendment claim does not affect the fact or

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duration of his custody, and thus, it is dismissed for failure to state a claim.

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Even assuming that petitioner’s First Amendment claim is cognizable in habeas, the

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claim is without merit. Prison regulations that infringe a prisoner’s constitutional right are valid

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so long as they are “reasonably related to legitimate penological interests.” Turner v. Safley, 482

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U.S. 78, 89 (1987); see also Pell v. Procunier, 417 U.S. 817, 822-23 (1974) (identifying four

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central penological objectives: deterrence (by making incarceration undesirable), protection (by

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quarantining criminal offenders), rehabilitation, and ensuring internal security of the prison

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facility). Courts owe “substantial deference to the professional judgment of prison

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administrators.” Overton v. Bazzetta, 539 U.S. 126, 132 (2003). Turner held that restrictive

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prison regulations are permissible if they are “reasonably related” to legitimate penological

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interests, and are not an “exaggerated response” to such objectives. Turner, 482 U.S. at 87.

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The Supreme Court has identified four factors to consider when determining the

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reasonableness of a prison rule: (1) whether there is a “valid, rational connection between the

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prison regulation and the legitimate governmental interest put forward to justify it”; (2) “whether

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there are alternative means of exercising the right that remain open to prison inmates”; (3) “the

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impact accommodation of the asserted constitutional right will have on guards and other inmates

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and on the allocation of prison resources generally”; and (4) the “absence of ready alternatives”,

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or, in other words, whether the rule at issue is an “exaggerated response to prison concerns.”

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Turner, 482 U.S. at 89-90.
It is well established that the First Amendment right to freedom of association is among

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the rights least compatible with incarceration, see Overton, 539 U.S. at 131, and such right “may

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be curtailed whenever the institution’s officials, in the exercise of their informed discretion,

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reasonably conclude that such associations . . . possess the likelihood of disruption to prison

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order or stability.” Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119, 132 (1977).

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Based on the documents attached to the petition, it is clear that petitioner’s validation was based

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on evidence showing that petitioner was involved with gang activity. It cannot be disputed that

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the prison has a legitimate interest in preserving the safety of its inmates and staff, which

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includes preventing gang violence. See also Bruce, 351 F.3d at 1289 (“It is clear . . . that prisons

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have a legitimate penological interest in stopping prison gang activity.”). Accordingly,

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petitioner’s First Amendment claim is dismissed.

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2.

Equal Protection

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Petitioner’s equal protection claim is similarly dismissed for failure to state a cognizable

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claim for habeas relief. See Badea, 931 F.2d at 574. There is no indication that his claim would

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affect the fact or duration of his confinement. Moreover, petitioner does not state any facts

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sufficient to support an equal protection claim. “The Equal Protection Clause of the Fourteenth

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Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal

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protection of the laws,’ which is essentially a direction that all persons similarly situated should

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be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440-41 (1985),

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quoting Plyler v. Doe, 457 U.S. 202, 216 (1982). Petitioner does not suggest that other persons

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similarly situated with him are being treated differently. Accordingly, petitioner’s equal

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protection claim is dismissed.
Due Process1

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3.

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Plaintiff claims that defendants violated his right to due process because his placement in

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the SHU was based on insufficient evidence.2

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Changes in conditions of confinement may amount to a deprivation of a state-created and

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constitutionally-protected liberty interest, provided the liberty interest in question is one of “real

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substance,” see Sandin v. Conner, 515 U.S. 472, 477, 484-87 (1995), and, in particular, where

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the restraint “imposes atypical and significant hardship on the inmate in relation to the ordinary

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incidents of prison life,” see id. at 484. In Superintendent v. Hill, 472 U.S. 445, 455 (1985), the

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Supreme Court held that disciplinary proceedings do not satisfy due process requirements unless

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there is “some evidence” in the record to support the findings of the prison disciplinary board.

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The Ninth Circuit requires that “some evidence” also support a decision to place an inmate in

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segregation for administrative reasons. See Toussaint v. McCarthy, 801 F.2d 1080, 1104 (9th

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Cir. 1986). This standard applies to placement in a SHU for gang affiliation. Bruce v. Ylst, 351

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F.3d 1283, 1287-88 (9th Cir. 2003), and is met if there was some evidence from which the

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conclusion of the administrative tribunal could be deduced. See Toussaint, 801 F.2d at 1105

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(citing Hill, 472 U.S. at 455). Ascertaining whether the standard is satisfied does not require

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examination of the entire record, independent assessment of the credibility of witnesses or

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Because the court has previously denied respondent’s argument that it the petition lacks
habeas jurisdiction and fails to state a claim, it will not rehash that discussion again. (Docket
No. 23.)
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Petitioner does not assert, and the record does not support, that he was not provided
notice or an opportunity to be heard. Hewitt v. Helms, 459 U.S. 460, 476 (1983).

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weighing of the evidence. See id. Instead, the relevant question is whether there is any evidence

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in the record that could support the conclusion reached. See id.

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The Ninth Circuit also requires that the evidence relied upon by prison disciplinary

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boards contain “some indicia of reliability,” Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987),

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but has not directly considered whether a corresponding need for evidentiary reliability exists

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when prison officials segregate an inmate for administrative reasons.3 Some district courts have

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extended the reliability requirement to the administrative context, however, holding that “the

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evidence relied upon to confine an inmate to the SHU for gang affiliation must have ‘some

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indicia of reliability’ to satisfy due process requirements.” Madrid v. Gomez, 889 F. Supp.

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1146, 1273-74 (N.D. Cal. 1995); see Jones v. Gomez, No. C 91-3875 MHP, 1993 WL 341282,

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*3-4 (N.D. Cal. Aug. 23, 1993) (order denying summary judgment) (due process requires indicia

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of reliability due to high risk of false information by informants, inherent prisoner conflicts and

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necessity for independent factfinding by prison officials).

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Here, the first source item was the CDC 128B stating that petitioner possessed a drawing,

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within which was found symbols of the “North Star.” (Resp. Ex. 2 at 2.) The 128B stated that,

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“[b]ased on gang training and experience,” the “North Star” symbol is indicative of membership

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within the Northern Structure Prison gang. (Id.) “The North Star Concept is used to indoctrinate

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Northern street gang members with the N[orthern] S[tar] prison gang’s ideologies.” (Id.)

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Petitioner claims that the identified “symbol” is not indicative of gang activities because the

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“North Star” is only one star and not four. (Pet. at 15.) The question for the court, however, is

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If the information relied upon by the disciplinary committee are the statements of an
unidentified informant, due process requires that the record contain: (1) some factual information
from which the committee can reasonably conclude that the information was reliable and (2) a
prison official’s affirmative statement that safety considerations prevent the disclosure of the
informant’s name. See Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir. 1987). Reliability may
be established by: (1) the oath of the investigating officer appearing before the committee as to
the truth of his report that contains confidential information, (2) corroborating testimony, (3) a
statement on the record by the chairman of the committee that he had firsthand knowledge of
sources of information and considered them reliable based on the informant’s past record, or (4)
in camera review of the documentation from which credibility was assessed. See id. at 186-87.

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whether it was unreasonable for the state court to have viewed the symbol within the drawing as

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depicting the “North Star.” The court cannot so conclude because the CDCR has expertise in

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identifying what symbols and indicia gangs are using. Plaintiff’s arguments to the contrary

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challenge the persuasiveness of this evidence, but the weighing and credibility of the evidence

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are not part of the analysis of whether the relatively low “some evidence” standard was met.

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Thus, the symbols within the drawing constitute some evidence to support the gang validation

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decision. See Bruce, 351 F.3d at 1288 (recognizing that even one single piece of evidence is

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sufficient to support validation under the lenient due process standard).

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The second source item, the confidential memorandum referencing the discovery of a

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“Ghost Writing” paper in the possession of another validated Northern Structure member, does

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not originate from an unidentified informant. The memorandum explained that “Ghost Writing”

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was a method of writing without ink, used by Northern Structure Prison Gang members, so that

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it can be undetected by gang investigators and correctional staff. (Resp. Ex. 2 at 3.) Inspection

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of this “Ghost Writing” showed a roster containing the names, aliases, birthdates, and CDCR

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identification numbers belonging to several validated members, including petitioner’s, of the

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Nuestra Familia and Northern Structure Prison Gangs. (Id.) As the Confidential Information

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Form states, the information is considered reliable because it was gathered from staff

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investigation or non-confidential sources, and also the notes were never intended to be seen by

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CDCR staff or gang investigation staff. (Id.) Again, although petitioner argues against the

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weight of the evidence, that is not the question before this court. This court does not decide

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anew whether to validate him, but only whether there was some evidence with sufficient indicia

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of reliability to support the decision reached by the defendant.

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The third source item was another confidential memorandum, dated August 5, 2008,

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which stated that confidential information was recovered by staff on July 25, 2008 during a

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contraband watch, which identified petitioner as an active member or associate of the Northern

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Structure Prison gang. (Resp. Ex. 2 at 4.) The information was considered reliable because it

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had been confiscated and not solicited by, or intended for, staff. Further, part of the information

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provided by the source had already been proven true.

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The fourth source item originated from a confidential informant (“CI”). The CI

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identified petitioner as being an active member of the Northern Structure Prison Gang. (Resp.

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Ex. 2 at 5.) Prison officials assessed that the information was reliable because it was

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corroborated by another source, and the CI incriminated himself in a criminal activity at the time

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he provided the information. (Id.) The fourth source item was corroborated by both the second

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and third source items. Because the record contains some factual information from which the

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state court could have reasonably concluded that the statements were reliable, the fourth source

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item met the “some evidence” standard. See Freitas v. Auger, 837 F.2d 806, 811 (8th Cir.1988)

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(upholding reliability determination where statements of two informants contained some factual

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background, were consistent with each other, and at least one of them was against the

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informant’s penal interest); Pratt v. Rowland, 770 F.Supp. 1399, 1403-04 (N.D. Cal. 1991)

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(finding adequate indicia of reliability where confidential statement was lent some credibility by

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confidential memoranda, was consistent with Rules Violation Report, and informant

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incriminated himself in criminal activity at the time of providing the information); see also Cal.

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Code of Regs. tit. 15, § 3321(c)(3) (confidential source may be deemed reliable if the provided

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information is self-incriminating).

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Although any one piece of evidence is sufficient to establish “some evidence,” that

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petitioner continues to be involved in gang activity, see Bruce, 351 F.3d at 1288, a review of the

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source items shows that each one supports the administrative decision.4 For the above reasons,

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Petitioner states that the four source items may be sufficient to identify as a gang
member, see Cal. Code Regs. tit. 15, § 3378(c)(3) (listing criteria to determine whether an
inmate is a member of a gang), which is used for initial validation. (Pet. at 18.) To the extent
petitioner contends, however, that these same source items do not demonstrate that he was
involved in gang activity, see Cal. Code Regs. tit. 15, § 3378(e) (stating that a gang member may
be considered for inactive status when he “has not been identified as having been involved in
gang activity for a minimum of six years”), Petitioner’s claim appears to turn on the state’s
definition of “involved in gang activity.” This is a matter of state law. The state’s interpretation
and application of its own regulations does not state a federal claim for habeas relief.
Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009).

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this court has no basis for finding that the California courts’ rejection of petitioner’s claims were

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either was contrary to or involved an unreasonable application of clearly established Supreme

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Court law.

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CONCLUSION
For the reasons set forth above, the petition for writ of habeas corpus is DENIED. The
clerk shall terminate all pending motions and close the file.

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CERTIFICATE OF APPEALABILITY
The federal rules governing habeas cases brought by state prisoners require a district

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court that denies a habeas petition to grant or deny a certificate of appealability (“COA”) in its

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ruling. Petitioner has failed to make a substantial showing that his claims amounted to a denial

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of his constitutional rights, or demonstrate that a reasonable jurist would find the denial of his

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claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a COA

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is DENIED.

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IT IS SO ORDERED.
DATED: _______________
RONALD M. WHYTE
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

ISAAC FLORES,

Case Number: CV10-02773 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
FRANCISCO JACQUEZ et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on February 21, 2013, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

Isaac Flores D 50574
Pelican Bay State Prison (SHU)
Housing: D-7-112
P.O. Box 7500
Cresent City, CA 95532-7500
Dated: February 21, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk