Sharpe v. Montgomery

Filing 17

ORDER Denying 1 Petition for Writ of Habeas Corpus and Declining to Issue a Certificate of Appealability. The Court denies the Petition for Writ of Habeas Corpus and denies Petitioner's request for an evidentiary hearing. Further, the Court declines to issue a certificate of appealability. The Clerk of Court is instructed to enter judgment accordingly and close the case. Signed by Judge Michael M. Anello on 3/12/2018.(All non-registered users served via U.S. Mail Service)(rmc)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

ADAM SHARPE,

Case No.: 16cv1947-MMA (AGS)
Petitioner,

12
13

v.

14

ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS AND
DECLINING TO ISSUE A
CERTIFICATE OF
APPEALABILITY

SCOTT KERNAN, Secretary,
Respondent.

15
16

[Doc. No. 4]

17
18

INTRODUCTION

19

Petitioner Adam W. Sharpe, (“Petitioner”), a state prisoner proceeding pro se,

20

initiated this action by constructively filing a Petition for Writ of Habeas Corpus pursuant

21

to Title 28 U.S.C. § 2254. Doc. No. 1. In the operative First Amended Petition (“FAP”),

22

Petitioner challenges a decision by the prison’s senior disciplinary hearing officer finding

23

him guilty of constructive possession of two deadly weapons and imposing a 360-day

24

forfeiture of credits and other penalties. See Doc. No. 4 (“FAP”) at 1, 21-23.1 The Court

25

has reviewed the FAP, the Answer and Memorandum of Points and Authorities in

26
27
Page numbers for docketed materials cited in this Order refer to those imprinted by the court’s
electronic case filing system.
1

28

1
16cv1947-MMA (AGS)

1

Support of the Answer [Doc. Nos. 11 (“Ans.”), 11-1 (“Ans. Mem.”)], the Traverse [Doc.

2

No. 14 (“Trav.”)], and all supporting documents submitted by the parties. For the reasons

3

discussed below, the Court DENIES the FAP without holding an evidentiary hearing and

4

DECLINES to issue a Certificate of Appealability.

5
6

FACTUAL AND PROCEDURAL BACKGROUND
On July 24, 2014, Correctional Officer Leyva conducted a random cell search of

7

the cell jointly occupied by Petitioner and Inmate Booker. Doc. No. 11-2 at 14. Officer

8

Leyva discovered two “brown paper bags that were inside one another located on the

9

floor next to the lockers.” Id. He “pulled the bags apart” and found “cardboard in the

10

bottom of the outside bag.” Id. Officer Leyva “removed the cardboard from the bag and

11

discovered a long round object wrapped in clear plastic on one half and masking tape on

12

the other half.” Id. When he removed the masking tape portion, he noticed “it was a

13

cover sleeve for an Inmate manufactured weapon made of a metal rod sharpened to a

14

point measuring 5 ¼ in length by ¼ in width with a handle made out of clear plastic.” Id.

15

Officer Leyva also “found a cloth right next to the Inmate manufactured weapon that [he]

16

had just found.” Id. He “picked up the cloth and unrolled the cloth and found another

17

Inmate manufactured weapon made out of metal sharpened to a point measuring 2 ¾ in

18

length by ½ in width with no handle.” Id. Officer Leyva reported that “[b]oth weapons

19

were readily accessible to both inmates” and he “immediately took possession of the

20

inmate manufactured weapons and secured them” on his person. Id. Thereafter,

21

Petitioner received a Rules Violation Report (“RVR”) for Possession of an Inmate

22

Manufactured Deadly Weapon. Id.

23

On October 4, 2015, Correctional Officer Olivo, the assigned Investigative

24

Employee, interviewed Petitioner. Id. at 15, 18. Petitioner handed Officer Olivo a list of

25

questions to ask witnesses at the upcoming hearing for the RVR. Id. at 18. Pursuant to

26

his questions, Inmate Booker reported that he received both the weapons on July 24, 2014

27

“around the hours of 9:30 a.m. and 10:00 a.m.,” and that Petitioner “did not have any

28

knowledge at all” of the weapons “[b]ecause he wasn’t around at the time [Inmate
2
16cv1947-MMA (AGS)

1

Booker] came in possession of the weapons.” Id. Petitioner also submitted questions to

2

ask his work supervisor, Carpenter Jesse Marquez (“Marquez”), but the Senior Hearing

3

Officer (“SHO”) deemed Marquez’s answers irrelevant “for reasons not provided.” FAP

4

at 7; Doc. No. 11-2 at 18. Petitioner asserts that Marquez would have verified that

5

Petitioner “was at work when [Officer Leyva] obtained the weapon[s].” Doc. No. 11-2 at

6

11.

7

On October 17, 2015, Petitioner appeared before Correctional Lieutenant SHO E.

8

Uribe for adjudication of the RVR charging him with possession of inmate manufactured

9

deadly weapons. Doc. No. 11-2 at 15. Petitioner plead not guilty to the charges and

10

made the following statement: “I was at work for 7 hours up until the point where they

11

found it. I was gone for 7 hours, [m]y Co-Defendant admitted it was his and he admitted

12

I had no knowledge of it.” Id. Inmate Booker and Marquez were witnesses at the

13

hearing and Petitioner indicated that witness questions and answers were provided in the

14

interview conducted by Officer Olivo. See id. at 16.

15

SHO Uribe found Petitioner guilty for the specific act of Possession of an Inmate

16

Manufactured Deadly Weapon based on the preponderance of evidence presented at the

17

hearing, including Officer Leyva’s written RVR and “[i]nformation contained in incident

18

package #CAL-FC3-14-07-0354.” Id. at 16-17. In support, SHO Uribe noted the

19

following:

20
21
22
23
24
25
26
27
28

It is the [SHO’s] belief that [Petitioner] is guilty of this [RVR] for the specific
act of “Possession of an inmate manufactured deadly weapon”. [sic] The
finding of guilt, of [Petitioner], is based upon the weapon being discovered
inside of paper bags that were located on the floor in a common area. It is the
responsibility of both inmates assigned to the cell to ensure that no contraband
enters the cell. The weapons were readily accessible to both inmates and not
in any one inmate’s assigned area. The discovery of two weapons within the
cell also makes it unlikely that [Petitioner] had no knowledge of the weapons.
In the [interview], inmate BOOKER accepted ownership of the weapons and
indicated that he had received them earlier that day around 0930 and 1000
hours. In Correctional Sergeant[] C. Imada’s 837C Report he indicates that
[Petitioner] had been released to go to medical clinic indicating that
[Petitioner] came out from his cell. The concept of constructive possession
3
16cv1947-MMA (AGS)

1

pursuant to California Code of Regulations, Title 15, section 3006(a) holds
the appellant liable for contraband contained within the area of his control. It
is the SHO opinion that [Petitioner] was aware of weapons being inside of the
cell and that it was his responsibility to ensure that his assigned area was free
from contraband. Based on the above mentioned facts and with evidence
presented during the hearing [Petitioner] is being found guilty of “Possession
of an inmate manufactured weapon”. [sic]

2
3
4
5
6
7

Id.
The incident was reported to the Imperial County District Attorney’s Office, which

8

initially “accepted the case for prosecution.” FAP at 6; see Doc. No. 11-2 at 13.

9

However, in September 2015, the Imperial County District Attorney’s Office dismissed

10

the case. Doc. No. 11-2 at 12-13, 15. Petitioner appealed the SHO’s finding on

11

November 1, 2015, arguing that the finding of guilt should be overturned as a result of

12

the Imperial County District Attorney’s Office’s dismissal, insufficiency of evidence, and

13

failure to present Marquez’s testimony. Id. at 8-10. Petitioner’s appeal was “screened

14

out” on November 3, 2015. Id. at 9.

15

On January 4, 2016, Petitioner sought collateral review of his disciplinary

16

conviction and loss of credits in the Imperial County Superior Court. Doc. No. 11-2,

17

Exhibit 1. The Superior Court denied his petition on January 26, 2016. Doc. No. 11-2,

18

Exhibit 4. Petitioner then constructively filed a habeas petition in the California Court of

19

Appeal on February 18, 2016, which was denied on March 14, 2016. Doc. No. 11-2,

20

Exhibits 2, 5. On March 29, 2016, Petitioner constructively filed a habeas petition in the

21

California Supreme Court. Doc. No. 11-2, Exhibit 3. That petition was denied on May

22

25, 2016. Doc. No. 11-2, Exhibit 6. On July 18, 2016, Petitioner constructively filed a

23

Petition for Writ of Habeas Corpus in this district. Doc. No. 1. After the Court dismissed

24

his case without prejudice, Petitioner filed the FAP presently being considered by the

25

Court. See Doc. No. 2; FAP.

26
27
28

SCOPE OF REVIEW
Title 28 of the United States Code, section 2254(a), sets forth the following scope
of review for federal habeas corpus claims:
4
16cv1947-MMA (AGS)

1
2
3
4
5
6

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall
entertain an application for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court only on the ground that he
is in custody in violation of the Constitution or laws or treaties of the United
States.
28 U.S.C. § 2254(a).
The FAP was filed after enactment of the Anti-Terrorism and Effective Death

7

Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214. Under 28 U.S.C.

8

§ 2254(d), as amended by AEDPA:

9
10
11
12
13
14
15
16

(d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings unless
the adjudication of the claim –
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.

17
18
19

28 U.S.C. § 2254(d).
A state court’s decision is “contrary to” clearly established federal law if the state

20

court “arrives at a conclusion opposite to that reached” by the Supreme Court on a

21

question of law, or “confronts facts that are materially indistinguishable from a relevant

22

Supreme Court precedent and arrives at a result opposite to [the Supreme Court’s].”

23

Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court’s decision is an

24

“unreasonable application” of clearly established federal law where the state court

25

“identifies the correct governing legal principle from [the Supreme Court’s] decisions but

26

unreasonably applies that principle to the facts of the prisoner’s case.” Lockyer v.

27

Andrade, 538 U.S. 63, 75 (2003). “[A] federal habeas court may not issue [a] writ simply

28

because the court concludes in its independent judgment that the relevant state-court
5
16cv1947-MMA (AGS)

1

decision applied clearly established federal law erroneously or incorrectly. Rather, that

2

application must be objectively unreasonable.” Id. at 75-76 (emphasis added) (internal

3

quotation marks and citations omitted). Clearly established federal law “refers to the

4

holdings, as opposed to the dicta, of [the United States Supreme] Court’s decisions.”

5

Williams, 529 U.S. at 412.

6

Habeas relief also is available if the state court’s adjudication of a claim “resulted

7

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

8

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2); Wood v.

9

Allen, 558 U.S. 290, 293 (2010). A state court’s decision will not be overturned on

10

factual grounds unless this Court finds that the state court’s factual determinations were

11

objectively unreasonable in light of the evidence presented in state court. See Miller-El v.

12

Cockrell, 537 U.S. 322, 340 (2003); see also Rice v. Collins, 546 U.S. 333, 341-42 (2006)

13

(the fact that “[r]easonable minds reviewing the record might disagree” does not render a

14

decision objectively unreasonable).
DISCUSSION

15
16

Petitioner raises two claims in his FAP. FAP at 6-7. First, Petitioner contends

17

there was insufficient evidence to support the disciplinary hearing finding him guilty of

18

possession of two deadly weapons. FAP at 6. Second, Petitioner argues that he was

19

denied his due process right to present evidence showing that he was at work on the day

20

of the search that led to discovery of the weapons. Id. at 7. Respondent argues both

21

claims must be denied because Petitioner has failed to establish the state court’s decision

22

was contrary to, or an unreasonable application of, clearly established law. Ans. Mem. at

23

2-7. Respondent further contends that Petitioner fails to state a federal claim for relief as

24

to his second claim. Id. at 2.

25

A.

26

Sufficiency of the Evidence
Petitioner’s first claim asserts that “[p]rison officials violated [P]etitioner’s due

27

process rights by finding him guilty of [a] Rules Violation without any evidence that it

28

believed would rationally permit the findings.” FAP at 6. Specifically, he contends that
6
16cv1947-MMA (AGS)

1

he had no knowledge of the two weapons and had not been in his cell since his cellmate

2

acquired the weapons. Id. Accordingly, he asserts that he cannot be guilty of

3

constructively possessing the weapons. Id. Respondent contends that the state appellate

4

court appropriately determined that Petitioner’s guilty finding was based on “some

5

evidence.” Ans. Mem. 4-6.

6

The Court will look through the silent denial of this claim by the state supreme

7

court to the last reasoned state court decision to address the claim, the state appellate

8

court order denying habeas relief states:

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

[Petitioner] is not entitled to habeas corpus relief. “[T]he requirements of due
process are satisfied if some evidence supports the decision by the prison
disciplinary board to revoke good time credits.” (Superintendent v. Hill
(1985) 472, U.S. 445, 455.) The report of a correctional officer that the
weapons were found on the floor of [Petitioner’s] prison cell in an area readily
accessible to both inmates constitutes “some evidence” he committed the
disciplinary violation. [Petitioner’s] “reliance on the evidence that supports
his assertion not to have known about the [weapons], such as his cellmate’s
acknowledgement of ownership and [Petitioner’s] own claim of innocence,
does not change the analysis under Hill. Hill emphasizes that the reviewing
court is not to engage in an ‘examination of the entire record’ or ‘weighing of
the [conflicting] evidence.’ [Citation.] Rather, the narrow role assigned to the
reviewing court is solely to determine whether there was ‘any evidence in the
record that could support the conclusion reached by the disciplinary board.’
[Citation.] Here, there is such evidence, even if, as [Petitioner] contends, there
is other evidence that supports his assertion of innocence.” (In re Zepeda
(2006) 141 Cal.App.4th 1493, 1500.) Likewise, given this evidence in
support of the decision, whether [Petitioner] was at work at the time of the
cell search is irrelevant and would not lead to a different result. (See Brecht
v. Abrahamson (1993) 507 U.S. 619, 637 [recognizing that habeas relief will
not be afforded to correct a due process violation where the error that caused
it was harmless, ie., it had no substantial and injurious effect on the
proceedings].)
Doc. No. 11-2 at 88-89.
“Prison disciplinary proceedings are not part of a criminal prosecution, and the full

27

panoply of rights due a defendant in such proceedings does not apply.” Wolff v.

28

McDonnell, 418 U.S. 539, 556 (1974). Any finding of guilt must be supported by “some
7
16cv1947-MMA (AGS)

1

evidence in the record.” Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454

2

(1985). The “some evidence” standard is not high; a court need only decide whether

3

there is any evidence at all that could support the prison official’s administrative

4

decisions. Bruce v. Ylst, 351 F.3d 1283, 1287-88 (9th Cir. 2003). In reviewing a

5

decision for “some evidence,” courts are not required to conduct an examination of the

6

entire record, independently assess witness credibility, or weigh the evidence; rather,

7

courts only determine whether the prison disciplinary board’s decision to revoke good

8

time credits has some factual basis. Hill, 472 U.S. at 455-56.

9

Petitioner was found guilty of Title 15, Section 3006(a) of the California Code of

10

Regulations, which states “[i]nmates may not possess or have under their control or

11

constructive possession any weapons . . . .” 15 Cal. Code. Reg. § 3006(a). SHO Uribe

12

specifically found him guilty of constructive possession, which “exists where a person

13

has knowledge of an object and control of the object or the right to control the object,

14

even if the person has no physical contact with it.” 15 Cal. Code. Reg. § 3000.

15

The SHO based the finding of guilt “upon the weapon being discovered inside of

16

paper bags that were located on the floor in a common area.” Doc. No. 11-2 at 16. He

17

noted that “[i]t is the responsibility of both inmates assigned to the cell to ensure that no

18

contraband enters the cell,” and that both “weapons were readily accessible to both

19

inmates and not in any one inmate’s assigned area.” Id. Based on the location of the

20

weapons, the SHO found “it unlikely that [Petitioner] had no knowledge of the weapons,”

21

even though Inmate Booker “accepted ownership . . . and indicated that he had received

22

them earlier that day around 0930 and 1000 hours” Id. The SHO considered Petitioner’s

23

statement that he was at work for seven hours on the day the weapons were found and did

24

not have knowledge of their existence. Id. at 15. However, SHO Uribe also considered

25

an “837C Report” filled out by Correctional Sergeant C. Imada, which indicates that

26

Petitioner “had been released to go to medical clinic indicating that [he] came out from

27

his cell” that day. Id. at 16; FAP at 7 (stating that Correctional Sergeant C. Imada

28

“fraudulently stated that [P]etitioner had been released to [the] medical clinic during [the]
8
16cv1947-MMA (AGS)

1

relevant time in which [the] weapon[s] w[ere] discovered”). The SHO noted that “[t]he

2

concept of constructive possession pursuant to California Code of Regulations, Title 15,

3

section 3006(a) holds the appellant liable for contraband contained within the area of his

4

control” and that, in his opinion, Petitioner “was aware of weapons being inside of the

5

cell and that it was his responsibility to ensure that his assigned area was free from

6

contraband.” Doc. No. 11-2 at 16.

7

Petitioner asserts that “simply finding that a weapon was found in [Petitioner’s]

8

shared living space does not automatically mean you could reasonably conclude that it

9

was [Petitioner’s] and not his cellmate’s possession alone.” Trav. at 3. He contends that

10

“a reasonable jurist could conclude that if a factfinder believed Booker’s testimony [that

11

the weapons were his and Petitioner had no knowledge of them,] then some evidence to

12

support [Petitioner’s] guilt does not exist.” Id. However, it is not the function of this

13

Court to make its own assessment of the credibility of witnesses or re-weigh the

14

evidence. Hill, 472 U.S. at 455. The only question before this Court is “whether there is

15

any reliable evidence in the record that could support the decision reached.” Santibanez

16

v. Havlin, 750 F. Supp. 2d 1121, 1129 (E.D. Cal. 2010) (citing Powell v. Gomez, 33 F.3d

17

39, 40 (9th Cir. 1994); Toussaint v. McCarthy, 801 F.2d 1080, 1105 (9th Cir. 1986)).

18

Here, there is some evidence in the record that Petitioner had constructive possession of

19

the weapons because the weapons were found in a common area of his cell and he had

20

been in his cell that day. See Doc. No. 11-2 at 16; FAP at 7 (acknowledging that

21

Correctional Sergeant C. Imada reported Petitioner had been in his cell during the

22

relevant time-frame). As such, the state appellate court’s decision was neither contrary to

23

clearly established federal law nor an unreasonable determination of the facts.

24

Accordingly, Petitioner’s first ground for relief is DENIED.

25

B.

Right to Present Evidence

26

In his second claim, Petitioner asserts that “[p]rison officials violated [P]etitioner’s

27

Due Process [rights] pursuant to Title 15[, Section] 3318(a)(1)(C) [of the California Code

28

of Regulations] . . . by deeming questions to [P]etitioner’s work supervisor irrelevant.”
9
16cv1947-MMA (AGS)

1

FAP at 7. Respondent argues his claim fails to state a federal claim for relief because it is

2

based on the alleged violation of a California Administrative Code section. Ans. Mem. at

3

2. Even if a federal claim for relief exists, Respondent contends Petitioner was permitted

4

to present evidence that he was at work at the time the weapons were found in his cell.

5

Id. at 5. Therefore, Respondent argues the state appellate court’s decision was not

6

contrary to or an unreasonable application of clearly established federal law. See id.

7

As an initial matter, the Court notes that Petitioner’s claim to relief states that his

8

due process rights were violated by the SHO deeming Marquez’s answers to Petitioner’s

9

questions irrelevant. FAP at 7. Accordingly, the Court cannot agree with Respondent’s

10

contention that “neither [Petitioner’s] ground for relief nor supporting facts indicate that

11

[this claim] is based on federal law, let alone a violation of the Constitution, laws, or

12

treaties of the United States.” See Ans. Mem. at 2. Accordingly, the Court will address

13

whether Petitioner’s due process claim warrants habeas relief. To do so, the Court will

14

look through to the last reasoned state court decision to address the claim. The state

15

appellate court order denying habeas relief states in relevant part:

16
17
18
19
20
21
22
23
24
25

[Petitioner] also contends that he was denied his due process right to present
evidence to show he was at work on the day of the search that led to discovery
of the weapons.
...
“ . . . Here, there is [some] evidence, even if, as [Petitioner] contends, there
is other evidence that supports his assertion of innocence.” (In re Zepeda
(2006) 141 Cal.App.4th 1493, 1500.) Likewise, given this evidence in
support of the decision, whether [Petitioner] was at work at the time of the
cell search is irrelevant and would not lead to a different result. (See Brecht
v. Abrahamson (1993) 507 U.S. 619, 637 [recognizing that habeas relief will
not be afforded to correct a due process violation where the error that caused
it was harmless, ie., it had no substantial and injurious effect on the
proceedings].)
Doc. No. 11-2 at 88-89.

26

While the full panoply of rights due to a defendant in criminal proceedings do not

27

apply to prison disciplinary proceedings, an inmate subject to disciplinary sanctions that

28

include the loss of good time credits must receive, among other things, an opportunity to
10
16cv1947-MMA (AGS)

1

call witnesses and present documentary evidence where doing so “will not be unduly

2

hazardous to institutional safety or correctional goals.” Wolff, 418 U.S. at 566. However,

3

due process does not require that all evidence be admitted. Id. at 566. A hearing officer

4

may refuse the inmate’s request for evidence if the evidence is irrelevant or unnecessary.

5

Id.; see Graves v. Knowles, 231 F. App’x 670, 672 (9th Cir. 2007) (noting that an inmate

6

“does not have the right to confidential, irrelevant, or unnecessary information”). If the

7

prison officials deny an inmate’s request to present evidence in his defense, they may be

8

required to explain their decision, though the explanation does not have to be in writing.

9

Ponte v. Real, 471 U.S. 491, 497 (1985).

10

Petitioner asserts that Marquez testified that Petitioner reported to work and

11

remained there from 7:30 a.m. to 2:30 p.m. on the day Officer Leyva discovered the

12

weapons in Petitioner’s jointly occupied cell. FAP at 7; Trav. at 2, 4; see Doc. No. 11-2

13

at 18. SHO Uribe deemed these answers irrelevant. Doc. No. 11-2 at 18. In so doing,

14

the SHO did not violate Petitioner’s due process rights because the proposed testimony

15

would have been cumulative or irrelevant and because SHO Uribe explained why the

16

testimony was not admitted. See Wolff, 418 U.S. at 566; Graves, 231 Fed. App’x at 671-

17

72.

18

At the disciplinary hearing, Petitioner stated that he “was at work for 7 hours up

19

until the point where [Officer Leyva] found [the weapons],” and that Inmate Booker

20

“admitted [the weapons were] his and . . . admitted [Petitioner] had no knowledge of

21

[them].” Doc. No. 11-2 at 15. Inmate Booker also stated that Petitioner “wasn’t around

22

at the time that [he] came in possession of the weapons.” Id. at 18. Thus, Marquez’s

23

testimony would have been cumulative because Petitioner and Inmate Booker had

24

already testified that Petitioner was not present when Inmate Booker acquired the

25

weapons. See id.; see also Trav. at 2. Moreover, in light of all of the other evidence

26

against Petitioner, any error that may have resulted from SHO Uribe deeming Marquez’s

27

testimony irrelevant was harmless, as Petitioner’s finding of guilt is supported by some

28

evidence in the record. See Brecht, 507 U.S. at 637 (error deemed harmless on habeas
11
16cv1947-MMA (AGS)

1

review unless it had a “substantial and injurious” effect on the verdict); see also Hill, 472

2

U.S. at 454; Doc. No. 11-2 at 16 (explaining the SHO’s notes on evidence against

3

Petitioner).
Further, SHO Uribe did not violate Petitioner’s due process rights by “deeming

4
5

questions to Petitioner’s work supervisor irrelevant.” See FAP at 7. “[P]rison officials

6

may be required to explain, in a limited manner, the reason why witnesses were not

7

allowed to testify . . . by making the explanation a part of the ‘administrative record’ in

8

the disciplinary proceeding . . . .” Ponte, 471 U.S. at 497. Here, SHO Uribe explained

9

his reasons by indicating that Marquez’s answers were “[d]eemed irrelevant by SHO” in

10

the administrative record. Doc. No. 11-2 at 18. This satisfies the due process

11

requirement that prison officials explain their reasons for not allowing witness testimony

12

at a disciplinary hearing. See Ponte, 471 U.S. at 497.
Because SHO Uribe’s denial of Marquez’s testimony was at most harmless error,

13
14

and because SHO Uribe explained his reasons for denying the testimony, Petitioner’s due

15

process rights were not violated. See Brecht, 507 U.S. at 637; Hill, 472 U.S. at 454;

16

Ponte, 471 U.S. at 497. Thus, the state court decision was not contrary to, or an

17

unreasonable application of, clearly established Supreme Court precedent and Petitioner’s

18

second ground for relief is DENIED.

19

C.

20

Evidentiary Hearing
Petitioner asserts that the discrepancy between Correctional Sergeant C. Imada’s

21

statement that Petitioner had been in his cell during the relevant time-frame and

22

Marquez’s statement that Petitioner was at work requires an evidentiary hearing. FAP at

23

7. Petitioner claims that Marquez’s testimony “would’ve established that [Petitioner] was

24

at [his] work assignment from 7:30 a.m. (aprox.) to 2:30 p.m.” Trav. at 2. Because

25

Inmate Booker testified that he obtained the weapons between 9:30 a.m. and 10:00 a.m.,

26

Petitioner claims an evidentiary hearing is required to show his innocence. Id.

27

Rule 8(a) of the Rules Governing Section 2254 Cases provides that where a

28

petition is not dismissed at a previous stage in the proceeding, the judge, after the answer,
12
16cv1947-MMA (AGS)

1

transcripts, and record of the state court proceedings are filed, must, upon review of those

2

proceedings, determine whether an evidentiary hearing is required. The purpose of an

3

evidentiary hearing is to resolve the merits of a factual dispute.

4

Under 28 U.S.C. 2254(e)(2), as amended by AEDPA, a district court presented

5

with a request for an evidentiary hearing must first determine whether a factual basis

6

supporting petitioner’s claims was developed in state court. Williams, 529 U.S. at 431. If

7

a factual basis was developed in the state court, Petitioner is entitled to a hearing if he

8

establishes he “did not receive a full and fair opportunity to develop [the facts of his

9

claim] in state court” and if “he has alleged facts that, if proven, would entitle him to

10

habeas relief.” Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2002); see also

11

Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir. 2005) (“petitioner’s allegations

12

need only amount to a colorable claim”). “It is axiomatic that when issues can be

13

resolved with reference to the state court record, an evidentiary hearing becomes nothing

14

more than a futile exercise.” Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998).

15

Section 2254 provides that district courts shall afford state court factual findings the

16

presumption of correctness, and that the petitioner must rebut the presumption of

17

correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

18

If a factual basis for a particular claim was not developed in the state court, the

19

district court must determine whether the failure to develop the factual basis of the claim

20

in state court was attributable to the petitioner. See Williams, 529 U.S. at 432 (explaining

21

that “a failure to develop the factual basis of a claim is not established unless there is a

22

lack of due diligence, or some greater fault, attributable to the prisoner or the prisoner’s

23

counsel”). If the failure was attributable to the petitioner, the court must deny the request

24

for an evidentiary hearing unless the petitioner establishes one of two narrow exceptions

25

set forth in 28 U.S.C. § 2254(e)(2), which provides:

26
27

If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim
unless the applicant shows that--

28
13
16cv1947-MMA (AGS)

1

(A) the claim relies on--

2

(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or

3
4
5

(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and

6
7

(B) the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.

8
9
10

28 U.S.C. § 2254(e)(2).

11

The Court finds that a factual basis for Petitioner’s claims was developed in state

12

court. This conclusion is supported by the record, which shows that each of Petitioner’s

13

claims were brought to the attention of and adequately developed in state court. See Doc.

14

No. 11-2. Upon careful consideration, the Court has also determined that Petitioner’s

15

FAP does not allege facts sufficient to entitle him to relief on either of his claims under

16

28 U.S.C. § 2254(d). Accordingly, Petitioner’s request for an evidentiary hearing is

17

DENIED because federal habeas relief is not warranted under § 2254(d) and Petitioner

18

has not demonstrated he meets the conditions for obtaining an evidentiary hearing under

19

§ 2254(e)(2).

20

D.

Certificate of Appealability

21

Rule 11 of the Federal Rules Governing Section 2254 Cases states that “the district

22

court must issue or deny a certificate of appealability when it enters a final order adverse

23

to the applicant.” A certificate of appealability is not issued unless there is “a substantial

24

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Under this

25

standard, a petitioner must show that reasonable jurists could debate whether the petition

26

should have been resolved in a different manner, or that the issues presented were

27

adequate to deserve encouragement to proceed further. Miller-El, 537 U.S. at 336

28

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
14
16cv1947-MMA (AGS)

1

For the reasons set forth herein, the Court finds this standard has not been met.

2

Petitioner has not made a substantial showing that his claims amounted to a denial of his

3

constitutional rights, nor has he demonstrated that a reasonable jurist would find this

4

Court’s denial of his claims to be debatable. Accordingly, the Court DECLINES to issue

5

a certificate of appealability as to any claims or issues raised in the FAP.

6
7

CONCLUSION
Based on the foregoing, the Court DENIES the Petition for Writ of Habeas Corpus

8

and DENIES Petitioner’s request for an evidentiary hearing. Further, the Court

9

DECLINES to issue a certificate of appealability. The Clerk of Court is instructed to

10
11
12

enter judgment accordingly and close the case.
IT IS SO ORDERED.
Dated: March 12, 2018

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15
16cv1947-MMA (AGS)