McCarvill v. Nooth
Filing
25
OPINION AND ORDER: The Petition for Writ of Habeas Corpus (# 1 ) is DENIED, and this action is dismissed. The Court declines to issue a Certificate of Appealability on the basis that Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). See 13-page opinion and order attached. Ordered by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
BRIAN McCARVILL,
Petitioner,
v.
MARK NOOTH,
Respondent.
BRIAN McCARVILL
Inmate #11037967
Snake River Correctional Inst.
777 Stanton Blvd.
Ontario, OR 97914
Pro Se Petitioner
JOHN KROGER
Attorney General
ANDREW D. HALLMAN
Oregon Department of Justice
1162 Court Street, NE
Salem, OR 97301
Attorneys for Respondent
1 - OPINION AND ORDER -
Case No. 3:11-cv-00464-HZ
OPINION AND ORDER
Hernandez, District Judge.
Petitioner,
an
inmate
at
Snake
River
Correctional
Institution, brings this habeas corpus action pursuant to 28 U.S.C.
§ 2254. He challenges a prison disciplinary action finding that he
violated prohibited inmate conduct rule 2.15, Extortion I, and the
associated fine and loss of 26 days good conduct credit, alleging
violation of his federal constitutional right to due process.1
For
the reasons set forth below, the Petition for Writ of Habeas Corpus
(#1) is DENIED, and this proceeding is DISMISSED.
BACKGROUND
On November 3, 2010, Petitioner received a Misconduct Report
from the Oregon State Penitentiary Library Coordinator pertaining
to his actions while working in the prison legal library on October
21, 2010.
The misconduct report charged Petitioner with violating
rule 2.15 - Extortion I, rule 4.01 - Disobedience of an Order I,
rule 3.01 - False Information to an Employee I, and rule 4.40 Unauthorized Area I.
Petitioner
received
(Respt.'s Ex. 105.)
a
formal
hearing
On November 9, 2010,
before
Hearings
Officer
Clemente ("Clemente").
At the hearing, Petitioner acknowledged having received the
Misconduct Report, a Notice of Hearing, a Notice of Inmate Rights
in a Hearing, and a copy of the Rules of Prohibited Inmate Conduct;
1
Petitioner does not challenge the findings that he violated
three additional rules, which were merged with the Extortion I
violation for sanction purposes. (#20, at 2.)
2 - OPINION AND ORDER -
stated he understood his rights; and stated he read the Misconduct
Report.
(Respt.'s Ex. 103.)
Clemente read the Misconduct Report
into the record and asked Petitioner to admit or deny each charge.
Petitioner denied all charges. (Ex. 103, at 2.)
He also submitted
a detailed, six page - front and back - defense statement, which
included a request for witnesses. After reviewing the witness list
with Petitioner, Clemente adjourned the hearing in order to review
Petitioner's
statement
and
determine
whether
the
anticipated
witness testimony would constitute a defense to the charges.
(Ex.
103, at 7.)
The formal hearing resumed on November 22, 2010.
Hearing
Officer Clemente informed Petitioner she reviewed his statement,
and after doing so prepared questions for the witnesses.
She
informed him the witnesses had all been interviewed, and she
received the evidence he submitted in addition to his statement on
November 17, 2010, including the letter he received from one of the
witnesses.
(Ex. 104, at 2.)
Clemente then reviewed the questions
that were asked of each witness, and each witness's responses.
(Id., at 2-5.)
Petitioner commented that the witnesses statements
were partially accurate, but not entirely so.
(Id., at 5.)
Clemente found by a preponderance of the evidence that Petitioner
had violated the Extortion Rule I, compelling or inducing a DOC
employee to act or refrain from acting by threats, force or
intimidation.
(Id., at 5.)
She also found he had violated the
other three rules specified in the misconduct report.
3 - OPINION AND ORDER -
For the
Extortion rule violation, Petitioner was sanctioned with 60 days
disciplinary segregation, with credit for time already served;
14
days loss of privileges upon release from segregation; a fine of
$200; and a loss of 26 days good time credit.
Sanctions
on the
other rule
(Id. at 5.)
violations were merged
sanctions imposed for the Extortion rule violation.
with the
(Id. at 6.)
Clemente reviewed administrative review procedures with Petitioner.
(Id.)
Petitioner had no questions regarding the sanctions, but
sought an explanation for the days that passed between the alleged
misconduct and issuance of the Misconduct Report.
responded:
(Id.)
Clemente
"Looks like over the week and a half from what I've
read in the Misconduct Report that there was an ongoing situation,
at the time that the staff determined that you were going to be
written up, it looks like she wrote you up."
(Id.)
On December 8, 2010, Petitioner filed an Institution Request
for Adjustment of Final Order seeking reduction of the sanctions
imposed.
(Ex. 108.)
Petitioner was granted an 8-day reduction in
his disciplinary segregation term.
(Id., at 3.)
On December 14, 2010, Petitioner filed for Administrative
Review
of
the
disciplinary
hearing,
arguing
that
governing
administrative rules OAR 291-105-0021(2)(a)& (b) required that the
Misconduct
Report
be
filed
with
the
Library
Coordinator's
supervisor, or the officer-in-charge, within 24 hours of the
alleged misconduct on October 21, 2010, and that the Misconduct
4 - OPINION AND ORDER -
Report was not issued until November 3, 2010.
"Appendice
A.")
Petitioner
also
argued
there
(Ex. 110, at
was
not
a
preponderance of evidence to support finding he violated the
Extortion I rule.
(Id., at "Appendice B.")
In a written response
dated January 28, 2011, the Inspector General found that upon
reviewing the hearing:
[T]here was substantial compliance with the rule, the
finding was based upon a preponderance of the evidence
presented and the sanction imposed was in accordance with
the provisions set forth in the rule.
(Ex. 111.)
The Inspector General also found:
[T]he evidence supports the rule violations.
The
misconduct report was submitted within the timeframes
required by the rule. The misconduct report was written
after the investigation was completed.
(Id.)
Petitioner
vacated.
also
petitioned
to
have
the
misconduct
order
In an opinion letter dated May 19, 2011, the Assistant
Director, Operations Division - Oregon Department of Corrections
stated:
In reviewing the findings of the hearings officer and
your request, I find no significant justification that
warrants vacating this order in the interest of justice.
The sanction imposed was appropriate.
I encourage you to engage in constructive conduct and
pro-social behavior and to make the best of your time
while incarcerated.
My review is final and I will
consider all matters relating to this case closed.
(Ex. 109.)
5 - OPINION AND ORDER -
DISCUSSION
Petitioner filed the instant petition alleging his federal
constitutional rights to due process were violated, (1) when the
finding that he violated the Extortion I rule was not supported by
"some evidence" (Ground One); and (2) when the Oregon Department of
Corrections employees ("DOC") failed to comply with OAR 291-1050021(2), requiring that Misconduct Reports be filed "no later than
24 hours AFTER sufficient evidence is gathered, discovered, or
observed to support a charge of violation of rules," and conspired
to violate his rights to due process (Ground Two).
3-4.)
(#1, Pet., at
Petitioner asks the Court to reverse his misconduct report
conviction for Extortion I, reinstate his good time credit, and
return the $200 fine.
(Id., at 4.)
Respondent argues Petitioner is not entitled to relief on
Ground
One
because
the
Inspector
General's
finding
that
the
violation was supported by some evidence was not an unreasonable
application of Superintendent v. Hill, 472 U.S. 455, 455-57 (1985).
(#15, Resp. at 6-8.)
Respondent argues Petitioner is not entitled
to relief on Ground Two because he fails to state a claim based on
the following: (1) "a violation of the Oregon Administrative Rules
is not cognizable in federal habeas"; (2) even broadly construing
the claim as a due process violation, Petitioner received notice of
the violation at least 24 hours prior to a hearing on the matter as
required under Wolff v. McDonnell, 418 U.S. 539, 563-64 (1974); and
6 - OPINION AND ORDER -
(3) "even if petitioner could demonstrate that the 13-day delay
violated his due process rights, he fails to allege prejudice [from
the delay]."
I.
(Id., at 6-10.)
Standards
Pursuant to 28 U.S.C. § 2254(a), "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
Constitution
or
that
laws
he
is
in
custody
or
treaties
of
in
the
violation
United
of
the
States."
A
petitioner seeking federal habeas relief bears the burden of
showing the court he is entitled to relief. Woodford v. Visciotti,
537 U.S. 19, 24 (2002); Davis v. Woodford, 384 F.3d 628, 638 (9th
Cir.
2004),
cert.
denied
545
U.S.
1165
(2005).
A
pro
se
petitioner's pleadings are liberally construed by the court.
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Porter v. Ollison, 620
F.3d 952 (9th Cir. 2010)(prisoner pro se pleadings are given the
benefit of being liberally construed).
The Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”), imposes a deferential standard of review such that
federal courts may grant a writ of habeas corpus only if the state
court decision "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 "was based on an unreasonable determination of the facts
7 - OPINION AND ORDER -
in light of the evidence presented in the State court proceeding."
28 U.S.C. § 2254(d)).
However, the AEDPA's deferential standard
does not apply in cases where the state court does not reach the
merits of the federal claims.
See Nulph v. Cook, 333 F.3d 1052,
1056 (9th Cir. 2003).
II.
Analysis
Petitioner exhausted his administrative remedies. He did not,
however, present his due process claim to the Oregon courts, but
there does not appear to be a mechanism for him to do so.2
In any
event, the Court need not determine whether Petitioner's due
process claims were properly exhausted in Oregon's courts because,
as discussed below, the claims fail on the merits.
See 28 U.S.C.
§ 2254(b)(2) ("An application for writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant
to exhaust the remedies available in the courts of the State.")
A.
GROUND ONE
In Ground One, Petitioner alleges "there was NO evidence" in
the record to support the finding that he violated the rule against
Extortion I and, therefore, the resulting loss of good time credits
and imposition of a $200 fine violated his right to due process.
The Court finds Petitioner's arguments to be without merit.
Wolff v. McDonnell, 418 U.S. 539 (1974) and Superintendent v.
2
In Oregon, state habeas corpus does not lie to address that
a prospective release date has been extended, or to address the
imposition of a fine. See Pham v. Thompson, 156 Or.App. 440, rev.
denied 328 Or. 246 (1998)(scope of habeas corpus under ORS 34.362).
8 - OPINION AND ORDER -
Hill, 472 U.S. 445 (1985), govern review of prison disciplinary
proceedings that result in the revocation of good conduct credits.
Under Wolff, for due process to be satisfied an inmate must: (1)
receive advance written notice of the disciplinary charge(s); (2)
be given an opportunity to call witnesses and present evidence in
his defense "when permitting him to do so will not be unduly
hazardous to institutional safety or correctional goals"; and (3)
receive a written statement as to the evidence relied upon and the
reasons for the disciplinary action.
418 U.S. at 563-67.
Under
Hill, the findings of a prison disciplinary hearing officer must be
upheld if they are supported by "some evidence in the record."
472
U.S. at 454. "Ascertaining whether this standard is satisfied does
not
require
examination
of
the
entire
record,
independent
assessment of the credibility of witnesses, or weighing of the
evidence.
Instead, the relevant question is whether there is any
evidence in the record that could support the conclusion reached by
the disciplinary
board."
Id.,
at
455-56.
"The
fundamental
fairness guaranteed by the Due Process Clause does not require
courts to set aside decisions of prison administrators that have
some basis in fact."
Id. at 456.
Here, the record shows Petitioner received written notice of
the charges against him; Petitioner had an opportunity to present
evidence in his defense when he submitted an extensive and detailed
statement outlining his defense and when five (5) inmate witnesses,
9 - OPINION AND ORDER -
that he identified, were interviewed regarding the incident; and
Petitioner received a written statement of the hearing officer's
findings and the sanctions imposed.
record
that
could
support
the
There is also evidence in the
disciplinary
hearing
officer's
conclusion that Petitioner violated the prohibited conduct of
Extortion I.
That evidence includes the Library Coordinator's
misconduct report, in which she specifies that during the incident
on October 21, 2010, Petitioner told her "you need to fire him, if
you don't I will turn you in for inappropriate conduct," and that
"inmate [Petitioner] attempted to extort me by using threats and
intimidation to compel me to terminate another clerk."
105.)
(Resp. Ex.
The evidence also includes a statement from at least one
inmate witness that he heard Petitioner threaten to send a kyte
reporting
the
relationship.
Petitioner
Library
Coordinator
for
an
inappropriate
(Respt's Ex. 104, at 3; Ex. 107 at 32-33.)
challenges
the
sufficiency
and
credibility
Although
of
the
evidence, the question for the Court is whether there is any
evidence in the record that could support the disciplinary hearing
officer's conclusion that he violated the Extortion I rule.
Hill, 472 U.S. at 456.
See
The Court finds there is evidence in the
record that could support the hearing officer's conclusion.
And
the record shows the due process requirements outlined in Wolff,
were satisfied.
Therefore, Petitioner has not shown his rights to
due process were violated and habeas relief on Ground One is
precluded.
10 - OPINION AND ORDER -
B.
GROUND TWO
In his second claim, Petitioner alleges Oregon DOC employees
violated Oregon Administrative Rules 291-105-0021(2)(a) and (b),
which specify a misconduct report will be filed with the reporting
employee's supervisor or the officer in charge "no later than 24
hours
AFTER
sufficient
evidence
is
gathered,
discovered,
or
observed to support a charge of violations of rules"; and that
"[t]he reviewing supervisor or designee shall be responsible for
providing the inmate with a copy of the misconduct report, rules of
prohibited conduct and the notice of hearing and inmate's rights
within 24 hours of the filing of the report, unless the inmate is
unavailable to be served."
(Emphasis in original.)
Petitioner
argues no additional evidence was gathered or discovered in the 13
days from the date of the incident in the library to the date the
incident report was filed, and the claim by DOC staff that the
incident was under investigation during those 13 days was part of
a conspiracy to violate his right to due process by charging him
with Extortion I and sanctioning him with the loss of 26 days good
time credits.
(#21, at 2 and 4.)
The Supreme Court has repeatedly stated that 'federal habeas
corpus relief does not lie for errors of state law.'
Swarthout v.
Cooke, 131 S.Ct. 859, 861 (2011) (quoting Estelle v McGuire, 502
U.S. 62, 67 (1991)(quoting Lewis v. Jeffers, 497 U.S. 764, 780
(1990)).
Petitioner's
claim
alleging
violation
of
Oregon's
administrative rules therefore fails to state a cognizable claim
11 - OPINION AND ORDER -
for federal habeas relief.
To the extent Petitioner alleges the
violation of the administrative rules violated his federal right to
due process, the claim must fail.
As discussed above, due process
requirements are satisfied when an inmate: (1) receives advance
written
notice
of
the
disciplinary
charge(s);
(2)
has
an
opportunity to call witnesses and present evidence in his defense
"when permitting him to do so will not be unduly hazardous to
institutional safety or correctional goals"; (3) receives a written
statement as to the evidence relied upon and the reasons for the
disciplinary action; and (4) the findings of a prison disciplinary
hearing officer are supported by "some evidence in the record."
Wolffe, 418 U.S. at 563-67; Hill, 472 U.S. at 454.
Neither Wolffe
nor Hill stands for the proposition that due process requires that
an inmate receive notice of a disciplinary charge within 24 hours
of the incident giving rise to the charge.
Nor does the language
of the Oregon administrative rules confer a protected interest in
inmates receiving
a
misconduct
report
within 24
hours
of
an
incident. Oregon Administrative Rule 291-105-0021 (2)(a) specifies
a misconduct report is to be filed "24 hours AFTER sufficient
evidence is gathered, discovered, or observed" and "[d]etermination
of the sufficiency of evidence shall be a matter of judgment for
the employee submitting the report and the immediate supervisor
reviewing the report." The Court, therefore, finds no violation of
Petitioner's
due
process
rights
from
his
not
receiving
the
misconduct report within 24 hours of the incident in the library.
12 - OPINION AND ORDER -
In
the
absence
protected
due
of
a
finding
process
rights,
of
a
violation
Petitioner's
of
Petitioner's
allegations
of
a
conspiracy to deprive him of his rights to due process cannot
stand. Accordingly, Petitioner is not entitled to habeas relief on
Ground Two.
CONCLUSION
For the reasons stated above, the Petition for Writ of Habeas
Corpus (#1) is DENIED, and this action is dismissed.
The Court
declines to issue a Certificate of Appealability on the basis that
Petitioner has not made a substantial showing of the denial of a
constitutional right pursuant to 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
DATED this
8th
day of May, 2012.
/s/ Marco A. Hernandez
Marco A. Hernandez
United States District Judge
13 - OPINION AND ORDER -
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