United States District Court, S.D. California
October 4, 2005.
CHARLES H. BROSE, Petitioner,
R.J. HERNANDEZ, Warden, Respondent.
The opinion of the court was delivered by: JAMES STIVEN, Magistrate Judge
REPORT AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS
Charles H. Brose, a state prisoner proceeding pro se, has
filed a Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254, raising one ground for relief. The Court has considered
the Petition, Respondent's Answer, and all supporting documents
submitted by the parties. Based upon the documents and evidence
presented in this case, and for the reasons set forth below, the
Court recommends that the Petition be DENIED and the case be
dismissed with prejudice.
I. Factual Background
On April 18, 2003, Petitioner pleaded guilty to receiving a
stolen vehicle with a prior. He was sentenced to four years in
prison less 270 days credit for time spent in custody. (Lodgment
6.) At a March 16, 2004, disciplinary hearing, Petitioner was
found to be in possession of inmate manufactured alcohol in
violation of 15 Cal. Code Regs. § 3016(a). As a result,
Petitioner lost 120 days of good behavior credits. (Lodgment 2.)
II. Procedural Background
Petitioner filed a number of petitions for writ of habeas
corpus, requesting to have his good behavior credits reinstated.
The first through fourth petitions were denied, because
Petitioner had not exhausted all of his administrative remedies. (Pet., Exh. A.)
After Petitioner exhausted his administrative remedies, the
superior court considered and denied his fifth petition for writ
of habeas corpus on December 21, 2004. (Lodgment 4.) Petitioner
then filed a "petition for writ of mandate" in the California
Court of Appeal, Fourth Appellate District, Division One.
(Lodgment 5.) The state appellate court treated the petition as a
petition for writ of habeas corpus and denied the petition on
February 7, 2005. (Lodgment 6.) On March 7, 2005, Petitioner
filed a petition for writ of habeas corpus in the California
Supreme Court. (Lodgment 7.) The state supreme court denied the
petition on March 23, 2005. (Lodgment 8.)
On April 15, 2005, Petitioner filed the current Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Docket No.
1.) Respondent filed an Answer and Lodgments on June 20, 2005.
(Docket Nos. 5-6.) Petitioner has not filed a Traverse in this
A. Scope of Review
Title 28, United States Code, § 2254(a), sets forth the
following scope of review for federal habeas corpus claims:
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) (1994) (emphasis added).
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") applies to habeas corpus petitions filed after 1996.
Lindh v. Murphy, 521 U.S. 320 (1997). As amended,
28 U.S.C. § 2254(d) reads:
(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 State court proceeding. 28 U.S.C.A. § 2254(d) (West Supp. 2004).
To obtain federal habeas relief, Petitioner must satisfy either
§ 2254(d)(1) or § 2254(d)(2). Williams v. Taylor, 529 U.S. 362
403 (2000). The Supreme Court interprets § 2254(d)(1) as follows:
Under the "contrary to" clause, a federal habeas
court may grant the writ if the state court arrives
at a conclusion opposite to that reached by this
Court on a question of law or if the state court
decided a case differently than this Court has on a
set of materially indistinguishable facts. Under the
"unreasonable application" clause, a federal habeas
court may grant the writ if the state court
identifies the correct governing legal principle from
this Court's decisions but unreasonably applies that
principle to the facts of the prisoner's case.
Williams, 529 U.S. at 412-13; see Lockyer v. Andrade,
538 U.S. 63
, 73-74 (2003).
Where there is no reasoned decision from the state's highest
court, this Court "looks through" to the underlying appellate
court decision. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
If the dispositive state court order does not "furnish a basis
for its reasoning," federal habeas courts must conduct an
independent review of the record "to determine whether the state
court clearly erred in its application of controlling federal
law." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003);
Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled
on other grounds by Lockyer, 538 U.S. at 75-76). However, a
state court need not cite Supreme Court precedent when resolving
a habeas corpus claim. Early v. Packer, 537 U.S. 3, 8 (2002).
As long as neither the reasoning nor the result of the
state-court decision contradicts Supreme Court precedent, the
state court decision will not be "contrary to" clearly
established federal law. Id.
Petitioner's only claim for relief is that his good behavior
credits were reduced in violation of his due process rights.
(Pet., Exh. A.) Petitioner argues that his cell mate was the one
making the alcohol, and his cell mate took full responsibility
for the alcohol in the cell. (Pet., Exh. D.) Petitioner further
argues that the California Department of Corrections violated its
own guidelines and regulations when it took away his good
behavior credits. Respondent argues that the prison disciplinary
proceedings were based on state law and, therefore, do not
establish a claim for federal habeas corpus relief. Respondent
also argues that, even if the Petition presents a claim for
federal habeas corpus relief, the state court's decision was not
contrary to, or an unreasonable application of, clearly established federal law.
State law questions do not create cognizable claims in federal
habeas corpus proceedings. Estelle v. McGuire, 502 U.S. 62, 68
(1991). Nor is the possible reduction of a sentence for good
behavior a legal entitlement. Toussaint v. McCarthy,
801 F.2d 1080, 1095 (9th Cir. 1986). Insofar as the disciplinary action
against Petitioner involved the application of state law,
Petitioner has not presented a claim for federal habeas corpus
relief. However, an inmate is entitled to due process before
being disciplined when the discipline imposed will inevitably
affect the duration of his sentence. See Sandin v. Conner,
515 U.S. 472, 487 (1995). Because the discipline imposed on
Petitioner included the loss of time credits, he was entitled to
certain procedural due process safeguards in connection with the
disciplinary action. Wolff v. McDonnell, 418 U.S. 539 (1974).
The process due in such a prison disciplinary proceeding
includes: (1) written notice of the charges; (2) at least a brief
period of time after the notice to prepare for the hearing; (3) a
written statement by the fact-finders as to the evidence relied
on and reasons for the disciplinary action; (4) allowing the
inmate to call witnesses and present documentary evidence in his
defense when permitting him to do so will not be unduly hazardous
to institutional safety or correctional goals; and (5) aid from a
fellow inmate or staff member where an illiterate inmate is
involved or where the complexity of the issues makes it unlikely
that the inmate will be able to collect and present the evidence
necessary for an adequate comprehension of the case. See id.
at 564, 566, 570.
Here, the record reveals that prison officials met the due
process requirements of Wolff before holding the disciplinary
hearing and before reducing Petitioner's good behavior credits.
Petitioner indicated at the March 16, 2004, disciplinary hearing
that he had received copies of all papers relating to the
disciplinary action 24 hours prior to the hearing, satisfying
requirements (1), (2) and (3). (Lodgment 2.) Petitioner was also
given an opportunity to question the correctional officer
testifying against him and to call witnesses. (Id.) Petitioner
originally requested that his cell mate be present to testify but
later waived the cell mate's appearance. (Id.) Thus, the prison
officials had satisfied requirement (4). The hearing officer did
not assign a staff assistant to Petitioner, because Petitioner
was not illiterate, the issues were not complex, and no
confidential relationship existed. (Id.) Therefore, requirement
(5) did not apply to Petitioner. Due process also requires that the findings of the prison
disciplinary board be supported by "some" evidence. See
Superintendent v. Hill, 472 U.S. 445, 454 (1985). And there
must be some indicia of reliability of the information that forms
the basis for prison disciplinary actions. See Cato v.
Rushen, 824 F.2d 703, 704-05 (9th Cir. 1987). The Due Process
Clause only requires that prisoners be afforded those procedures
mandated by Wolff and its progeny; it does not require that a
prison comply with its own, more generous procedures. See
Walker v. Sumner, 14 F.3d 1415, 1419-20 (9th Cir. 1994).
In this case, the record reveals that there was "some" evidence
that Petitioner was in possession of inmate manufactured alcohol.
Following is the evidence presented at the disciplinary hearing:
On March 7, 2004, Officer Jannusch was conducting a security
inspection when he observed Petitioner and his cell mate making a
reddish liquid substance. Officer Jannusch also observed
Petitioner kicking the bucket containing the substance under a
bunk in an effort to conceal it. The contents of the bucket was
verified as inmate manufactured alcohol. Petitioner also
testified at his disciplinary hearing that he was aware of the
substance being in his cell. (Lodgment 2.)
The Supreme Court noted in Hill: "Prison disciplinary
proceedings take place in a highly charged atmosphere, and prison
administrators must often act swiftly on the basis of evidence
that might be insufficient in less exigent circumstances. See
Wolff, 418 U.S. [at 562-63, 567-69]. 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." Hill, 472 U.S. at 456. In this case, the decision of
the hearing officer meets the requirements of the due process
clause, because the evidence presented at the disciplinary
hearing provided "some basis in fact" for the decision.
The last reasoned state court opinion that addresses this claim
is the state appellate court decision of February 7, 2005,
rejecting Petitioner's habeas petition. (Lodgment No. 6.) That
court found that the prison officials did not act without
information, fraudulently or on mere personal caprice. (Id.) In
addition, the court found that there was ample evidence in the
record to support the finding that Petitioner was in possession
of inmate manufactured alcohol. Because the prison officials met
the due process requirements set out in Wolff and its progeny,
this Court finds the state court decision was neither contrary
to, nor an unreasonable application of, established federal law Accordingly, this Court recommends that the Petition be DENIED.
After thorough review of the record in this matter and based on
the foregoing analysis, this Court recommends that the Petition
for Writ of Habeas Corpus be DENIED and this action be
DISMISSED WITH PREJUDICE.
This Report and Recommendation of the undersigned Magistrate
Judge is submitted to the District Judge assigned to this case,
pursuant to the provisions of 28 U.S.C. § 636(b)(1).
On or before October 21, 2005, any party may file and serve
written objections with the Court and serve a copy on all
parties. The document shall be entitled "Objections to Report and
Recommendation." Any reply to the objections shall be filed and
served no later than ten days after being served with the
objections. The parties are advised that failure to file
objections within the specified time may waive the right to raise
those objections on appeal of the Court's order. Martinez v.
Ylst, 951 F.2d 1153 (9th Cir. 1991).
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