IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
November 15, 2008
BARRY JAMESON, PETITIONER,
JAMES YATES, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation, following a conviction in the Los Angeles Superior Court, for second degree murder. (Exhibit 1, attached to Answer.) Petitioner is serving an indeterminate sentence of fifteen years to life. (Id.)
In the instant petition, Petitioner does not challenge the validity of his conviction or sentence; rather, he contends that his due process rights were violated in relation to an institutional disciplinary violation he received for failure to comply with emergency procedures.
Petitioner filed a state petition for writ of habeas corpus in the Fresno County Superior Court raising his due process challenge. (Exhibit 3, attached to Answer.) The superior court denied the petition without prejudice because Petitioner failed to properly exhaust the administrative remedies, improperly combined two distinct writ remedies, and had a record of filing questionable and/or procedurally defective petitions in that court. (Exhibit 4, attached to Answer.)
Thereafter, Petitioner filed a petition in the California Court of Appeal, Fifth Appellate District, which was summarily denied. (Exhibit 5, attached to Answer.)
Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court, which was also summarily denied. (Exhibit 6, attached to Answer.)
Petitioner filed the instant federal petition for writ of habeas corpus on September 14, 2007. Respondent filed an answer to the petition on March 13, 2008, and Petitioner filed a traverse on April 9, 2008. (Court Docs. 12, 15, 16.)
Pursuant to this Court's order, Respondent filed supplemental briefing on September 11, 2008, and Petitioner filed a reply on September 29, 2008. (Court Docs. 18-27.)
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to a judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. Petitioner's claims for relief arise out of a disciplinary hearing. Petitioner is confined at the Pleasant Valley State Prison in Coalinga, California, which is located within the jurisdiction of this Court. 28 U.S.C. §§ 2254(a), 2241(d). If a constitutional violation has resulted in the loss of time credits, such violation affects the duration of a sentence, and the violation may be remedied by way of a petition for writ of habeas corpus. Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990).
II. Standard of Review
This Court may entertain a petition for 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 AEDPA altered the standard of review that a federal habeas court must apply with respect to a state prisoner's claim that was adjudicated on the merits in state court. Williams v. Taylor, 529 U.S. 362 (2000). Under the AEDPA, an application for writ of habeas corpus will not be granted unless the adjudication of the claim "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 "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." 28 U.S.C. § 2254(d); Lockyer v. Andrade, 123 S.Ct. 1166 (2003), disapproving the Ninth Circuit's approach in Van Tran v. Lindsey, 212 F.3d 1143 (9th Cir. 2000); Williams, 529 U.S. 362. "A federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly." Lockyer, 123 S.Ct. at 1175 (citations omitted). "Rather, that application must be objectively unreasonable." Id. (citations omitted).
While habeas corpus relief is an important instrument to assure that individuals are constitutionally protected, Barefoot v. Estelle, 463 U.S. 880, 887 (1983); Harris v. Nelson, 394 U.S. 286, 290 (1969), direct review of a criminal conviction is the primary method for a petitioner to challenge that conviction. Brecht v. Abrahamson, 507 U.S. 619, 633 (1993). In addition, the state court's factual determinations must be presumed correct, and the federal court must accept all factual findings made by the state court unless the petitioner can rebut "the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765 (1995); Thompson v. Keohane, 516 U.S. 99 (1995); Langford v. Day, 110 F.3d 1380, 1388 (9th Cir. 1997).
III. Procedural Default
In his supplemental briefing, Respondent admits that Petitioner's claims have been exhausted; however, Respondent argues that the claims are procedurally defaulted.
Petitioner filed a petition for writ of habeas corpus in the Fresno County Superior Court raising his due process challenge in connection to the disciplinary action. (Exhibit 1, attached to Supplemental Briefing, Court Doc. 18.) The petition was denied on the grounds that Petitioner failed to properly exhaust his administrative remedies, improperly combined two separate extraordinary writs, and had a record of supplying either questionable or procedurally defaulted petitions. (Exhibit 2.) The petition was denied without prejudice to curing the deficiencies. (Id.)
On May 15, 2006, Petitioner filed a subsequent petition in the Fresno County Superior Court. (Exhibit 3, to Supplemental Briefing.) The petition was denied on the ground that Petitioner did not properly exhaust his administrative remedies. (Exhibit 7, to Supplemental Briefing; Exhibit L, to Petition.) In the alternative, the court found that a review of the record indicated there was some evidence to support the disciplinary action. (Id.)
Thereafter, Petitioner filed petitions in the California Court of Appeal and the California Supreme Court, which were both summarily denied. (Exhibits 8, 9, 10, 11.) Because the California Supreme Court's opinion is summary in nature, however, this Court "looks through" that decision and presumes it adopted the reasoning of the Fresno County Superior Court, the last state court to have issued a reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 804-05 & n. 3, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991).
Federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991); LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). If the court finds an independent and adequate state procedural ground, "federal habeas review is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice." Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir. 1993); Coleman, 501 U.S. at 750; Park v. California, 202 F.3d 1146, 1150 (9th Cir. 2000).
"For a state procedural rule to be 'independent,' the state law basis for the decision must not be interwoven with federal law." LaCrosse, 244 F.3d at 704, citing Michigan v. Long, 463 U.S. 1032, 1040-41 (1983); Morales v. Calderon, 85 F.3d 1387, 1393 (9th Cir. 1996), quoting Coleman, 501 U.S. at 735 ("Federal habeas review is not barred if the state decision 'fairly appears to rest primarily on federal law, or to be interwoven with federal law.'"). "A state law is so interwoven if 'the state has made application of the procedural bar depend on an antecedent ruling on federal law [such as] the determination of whether federal constitutional error has been committed." Park, 202 F.3d at 1152, quoting Ake v. Oklahoma, 470 U.S. 68, 75 (1985).
To be deemed adequate, the state law ground for the decision must be well-established and consistently applied. Poland v. Stewart, 169 F.3d 573, 577 (9th Cir. 1999), quoting Ford v. Georgia, 498 U.S. 411, 424 (1991) ("A state procedural rule constitutes an adequate bar to federal court review if it was 'firmly established and regularly followed' at the time it was applied by the state court."). Although a state court's exercise of judicial discretion will not necessarily render a rule inadequate, the discretion must entail "the exercise of judgment according to standards that, at least over time, can become known and understood within reasonable operating limits." Id. at 377, quoting Morales, 85 F.3d at 1392.
In Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003), the Ninth Circuit held that although the California untimeliness rule as expressed in In re Robbins was an independent state procedural ground, the Court could not conclude that it was an adequate state procedural ground on the basis of the record before it. The Ninth Circuit remanded the case to the district court to determine the issue of adequacy (whether the timeliness bar was sufficiently well-established and consistently applied at the time the default occurred). Id. While the ultimate burden of proving adequacy rests with the respondent, the petitioner must place the state's affirmative defense of independent and adequate state procedural grounds at issue "by asserting specific factual allegations that demonstrate the inadequacy of the state procedure." Id.
Here, the Fresno County Superior Court found that Petitioner failed to exhaust the administrative remedies. In In re Dexter, 25 Cal.3d 921 (1979), the California Supreme Court held in relevant part that an inmate will not be afforded judicial relief unless he has exhausted available administrative remedies. Id.
The California Department of Corrections has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084 et seq. (2004). "Any inmate or parolee under the department's jurisdiction may appeal any departmental decision, action, condition, or policy which they can reasonably demonstrate as having an adverse effect upon their welfare." Id. at § 3084.1(a). Four levels of appeal are involved, including the informal level, first formal level, second formal level, and third formal level - also known as the "Director's Level." Id. at § 3084.5. The Director's Level is the final administrative level of review. See Wyatt v. Terhune, 315 F.3d 1108, 1116 (9th Cir. 2003).
In this case, the Fresno County Superior Court clearly and unambiguously denied the state petition on the ground that Petitioner failed to exhaust the administrative remedies. (Exhibit 7, to Supplemental Briefing; Exhibit L, to Petition.) In response, Petitioner argues that he attempted on several occasions to submit grievances all of which were rejected for various different reasons. (See Court Doc. 16, at 6-11; Court Doc. 27, at 9-22.) However, the two relevant grievances were denied for exceeding the page limitation and untimely. (Exhibits E & F, to Petition.)
The rule in California that an inmate must exhaust his administrative appeals is well-established and has been applied since 1941. See Abelleira v. District Court of Appeal, 17 Cal.2d 280, 292 (Cal. 1941). The rule was firmly established at the time of Petitioner's default in 2005 and has been consistently applied since Abelleira. Dexter, 25 Cal.3d at 925; In re Muszalski, 52 Cal.App.3d 500, 503 (1975); In re Serna, 76 Cal.App.3d 1010, 1014 (1978); In re Arias, 42 Cal.3d 667, 678 (1986), Wright v. State, 122 Cal.App.4th 659 (Cal.App. 2004). In addition, Dexter is solely based on state law and is therefore independent of federal law. See Carter v. Giurbino, 385 F.3d 1194, 1197-98 (9th Cir.2004) (state rule independent where "[n]o federal analysis enters into the [rule's] equation"). Thus, the rule in Dexter is an adequate and independent state ground that bars this Court from reaching the merits of Petitioner's claims. Furthermore, Petitioner has failed to establish cause and prejudice sufficient to excuse the default.
IV. Review of Petition
Petitioner contends that his due process rights were violated because he was not provided sufficient notice of the lesser included offense of failure to comply with emergency procedures. He further argues the evidence is insufficient to support the finding of guilt. Notwithstanding the fact that the petition should be dismissed based on Petitioner's procedural default, the petition is also without merit because the due process requirements were met and there is "some evidence" to support the rules violation.
Prisoners cannot be entirely deprived of their constitutional rights, but their rights may be diminished by the needs and objectives of the institutional environment. Wolff v. McDonnell, 418 U.S. 539, 555 (1974). Prison disciplinary proceedings are not part of a criminal prosecution, so a prisoner is not afforded the full panoply of rights in such proceedings. Id. at 556. Thus, a prisoner's due process rights are moderated by the "legitimate institutional needs" of a prison. Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989), citing Superintendent, etc. v. Hill, 472 U.S. 445, 454-455 (1984).
However, when a prison disciplinary proceeding may result in the loss of good time credits, due process requires that the prisoner receive: (1) advance written notice of at least 24 hours of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action. Hill, 472 U.S. at 454; Wolff, 418 U.S. at 563-567. In addition, due process requires that the decision be supported by "some evidence." Hill, 472 U.S. at 455, citing United States ex rel. Vatauer v. Commissioner of Immigration, 273 U.S. 103, 106 (1927).
The function of the advance written notice is to inform the inmate of the charges and enable him to gather and present the facts in his defense. Wolff, 418 U.S. at 564. In this instance, Petitioner was initially charged with participation in a riot in violation of California Code of Regulations, title 15, section 3005(c) (now subsection (d) as amended, effective December 28, 2007), a Division D offense carrying a potential exposure of losing 61 to 90 days of credit. (Exhibit 2, at 1.) The rules violation report outlines in detail the factual circumstances supporting the disciplinary action taken against Petitioner. During the riot several orders were issued for the inmates to "get down" with negative results. At the rules hearing, Petitioner was found not guilty as to the charged offense but found guilty of the lesser included offense of failure to comply with emergency procedures for failing comply with staff's orders to get down. This finding does not render the notice of the charged offense deficient as Petitioner was provided with the date, time, place, and facts at issue. In addition, the hearing officer has the authority to reduce the offense at his/her discretion during the disciplinary hearing. See Cal. Code Regs. tit. 15, § 3313(c). Therefore, there is no basis to support Petitioner's contention that he did not have sufficient notice in advance of the hearing to prepare and present his defense, and his claim to the contrary is unfounded.
Petitioner was provided all the due process rights entitled under Wolff. He was given notice of the charges and evidence that would be used at the hearing at least twenty-four hours prior. (Exhibit 2, at 1, 5.) He received copies of the rules violation report, investigate employee report, incident report, and reviewed the videotape of the incident, prior to the hearing. (Exhibit 2, at 1, 5.) He was provided the opportunity to present evidence at the hearing which included his written and oral statements and stipulated testimony by three different inmate witnesses verifying that inmates must self segregate. (Id. at 2-3.) Petitioner concedes that he submitted his written statement to the SHO, which was reviewed and considered, and he was found not guilty of participation in the riot. (See Court Doc. 27, Reply, at 23.) On October 20, 2005, Petitioner received a copy of the written statement of the evidence relied upon and the reasons why he was found guilty of the rules violation. (Id. at 1, 3.) Accordingly, Petitioner received all the process he was due as explained in Wolff.
The Court finds there is "some evidence" to support the rules violation issued to Petitioner. The written rules violation issued by correctional officer Gonzales states that on August 22, 2005, a riot occurred on the recreation yard between two different factions of inmates, including the Whites and the Fresno Bulldogs. (Exhibit 2, Rules Violation Report, at 1.) There were approximately 186 inmates involved, and a video tape recording demonstrated that all the White and Bulldog inmates on the recreation yard at the time of the incident were actively participating by kicking and punching one another. The inmates were given numerous orders to "Get down" to no avail. When staff were able to regain control of the yard, the White inmates retreated to the grass area by the Horseshoe Pit and Bar Course, and the Bulldog inmates retreated to the grass and asphalt track area. Officers then conducted a search of inmates involved in the incident, and Petitioner was identified in the area with the White inmates.
Petitioner's presence in that area indicated that he was involved in the riot, resulting in the issuance of a rules violation.
On September 29, 2005, Petitioner appeared before Senior Hearing Officer ("SHO") A. Shimmin for a hearing on the rules violation. After reviewing all the evidence, Petitioner was found not guilty of the charged offense of participation in a riot, but was found guilty of the lesser offense of failure to comply with emergency procedures, and received a credit forfeiture of 30 days. (Exhibit 2, at 1-3.) California Code Regulations, title 15, section 3005, subdivision (b), states, "Inmates and parolees must promptly and courteously obey written and verbal orders and instructions from department staff, and from employees of other agencies with authorized responsibility for the custody and supervision of inmates and parolees." Specifically, the SHO considered Petitioner's written and oral statements made at the hearing, stipulated testimony by three separate inmate witnesses, and officer Gonzales' written report and testimony at the hearing. Petitioner's defense that "he was in the area and immediately got down when the yard was ordered down, however, . . . as a result of the combatants near him and because of staff's use of gas and block, guns het got up during the incident fearing for his safety and moved" was considered by the SHO. (Exhibit 2, attached to Answer, Rules Violation Report, at p.2.) On balance, the SHO found that the preponderance of the evidence supported the finding of guilt based on Gonzales' report, review of the video tape of the riot, and Petitioner's admission that he got up to move without instruction by staff. (Id. at 3.)
Petitioner's submission that he may choose to disobey direct orders by officers during a riot involving a large number of inmates is not well-taken. If Petitioner's theory is adopted then an inmate could continue to fight if he believed he was doing so in self-defense, all the time disobeying direct orders to get down. The allowance of inmates to pick and chose which orders to obey will undoubtedly lead to complete chaos in the prison, particularly at the time of a riot. While there certainly may be instances in which direct orders given by prison officers are obviously illegal, this is clearly not one of those orders. The direct orders to "get down" were an automatic and routine response to suppress the riot, of which Petitioner had no right to violate. It was only when prison guards were able to cease the riot that inmates were allowed to retreat to certain areas of the yard. Petitioner concedes he did so without authorization from prison staff. Based on the foregoing, there is some evidence to support the finding that Petitioner failed to comply with the verbal orders to "get down", in violation of section 3005(b).
Based on the foregoing, it is HEREBY RECOMMENDED that:
1. The petition for writ of habeas corpus be DENIED; and
2. The Clerk of Court be directed to enter judgment in favor of Respondent.
This Findings and Recommendations is submitted to the assigned United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies to the objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.
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