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Hurd v. Scribner

February 26, 2008

DALE RAY HURD, PETITIONER,
v.
L.E. SCRIBNER, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITION FOR WRIT OF HABEAS CORPUS

After exhausting his state remedies, Petitioner, a state inmate proceeding in forma pauperis and pro se filed his petition for writ of habeas corpus challenging the findings of a prison disciplinary hearing. On February 9, 2004, Petitioner was convicted under 15 Cal. Admin. Code § 3016(a) of possessing inmate-manufactured alcohol, resulting in a loss of behavioral credits.

Pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 72.1(d), this matter was referred to Magistrate Judge Jan Adler for report and recommendation. Judge Adler issued his report and recommendation (the "R&R"), to which Petitioner filed objections.

"The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule." Fed. R. Civ. P. 72(b); see also 28 U.S.C. § 636(b)(1)(C). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Thus, this Court must review those parts of the report and recommendation to which a party has filed a written objection.

Petitioner makes the following specific objections:

1. The disciplinary determination rested on testimony that is not evidence;

2. The state court decision was based on an unreasonable determination of facts in light of the evidence;

3. The state court decision is contrary to clearly established federal law as established by the U.S. Supreme Court;

4. Petitioner was denied due process of law because no competent evidence supported the determination of his guilt; and

5. The R&R improperly made credibility determinations and drew inferences against Petitioner when valid factual inferences in Petitioner's were possible.

Objections 2 and 3 state the standard for habeas relief under AEDPA, see 28 U.S.C. § 2254(d)(1); Mitchell v. Esparza, 540 U.S. 12, 15 (2003) (per curiam), and argue the R&R deviated from this standard. Objections 1 and 4 are objecting to the sufficiency of the evidence at the disciplinary hearing and the Court will address these together.

In determining whether the state court's denial of habeas relief was contrary to or was based on an unreasonable application of clearly established federal law, the Court reviews the last reasoned decision by the state court, Ylst v. Nunnemaker, 501 U.S. 797, 801--06 (1991), which in this case was the California Court of Appeal's decision issued May 20, 2005 and attached as Exhibit H to the petition.

The state appellate court considered Petitioner's arguments that his cellmate was responsible for the presence of the alcohol in their shared cell. Petitioner argued that he was at work when the alcohol was discovered; the alcohol was his cellmate's and he was not responsible for his cellmate's actions; and Petitioner's cellmate had previously accepted responsibility for the alcohol, testifying it was for his own personal use. (Pet., Ex. H at 26.) The state court, however, relied on Superintendent v. Hill, 472 U.S. 445, 455--56 (1985) as setting forth the "some evidence" standard, and found the conviction was supported by Petitioner's cellmate's testimony that the alcohol belonged to both of them, as well as the fact that the alcohol was discovered in Petitioner's cell. (Id., Ex. H at 27.) The California Court of appeals therefore denied the petition. (Id.)

Petitioner has argued these two key pieces of evidence were not evidence at all. In so arguing, he cites Supreme Court authority regarding the weight and relevance of evidence. (Memo. in Supp. of Obj. to R&R at 3--4.) These citations are unavailing, however. The fact that alcohol was found in Petitioner's cell provides some evidence that he had access to it, knowledge of its presence, and control of it. Plaintiff's cellmate's testimony that the alcohol belonged to both of them links ...


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