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Castro v. Martel

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


November 22, 2010

ANTHONY CASTRO, PETITIONER,
v.
M. MARTEL, RESPONDENT.

The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge

ORDER, FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Anthony Castro is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, (1) Petitioner's requests for judicial notice are granted; (2) it is recommended that the habeas petition be denied; and (3) it is recommended that Petitioner's claims that should be raised in a civil rights action under § 1983, and not in a § 2254 habeas petition, be dismissed without prejudice.

II. BACKGROUND

Petitioner is currently serving a life sentence for murder and assault with a deadly weapon, with an enhancement for use of a firearm in the commission of a crime. Resp't's Answer Ex. 1, at 3, ECF No. 31.*fn1 He is in the custody of the California Department of Corrections and Rehabilitation, following his 1979 conviction by jury in the Kern County Superior Court. Id.

With this petition, Petitioner does not challenge his underlying conviction and sentence. Rather, he challenges two prison disciplinary actions against him for: (1) misuse of a computer (C11/06-067), Resp't's Answer Ex. 5, pt. 1, at 39-40; and (2) disobeying a direct order (C12/06-052). Id. at 79, 81-83.

A. Misuse of a Computer (C11/06-067)

Instructor P. Babrah stated in her rules violation report that on November 14, 2006, she observed Petitioner "changing the configuration on the computer." Id. at 39. According to Instructor Babrah, Petitioner "altered the Mavis Beacon Typing Test from an adult typing level to a child typing level for ages 5 to 8 years old. This test is used to document typing scores on the 128-E for student's typing progress in the Office Services Program." Id. Instructor Babrah reported that on August 7, 2006, Petitioner "signed his job description and the Inmate/Student Computer Use form," and "is aware of his responsibilities to perform his job assignments and not to change any configurations on the computer." Id.

A hearing took place on December 5, 2006. Id. at 40. Petitioner pleaded not guilty and stated, "I was browsing to practice another test. I may have accidentally selected that option." Id. The senior hearing officer found Petitioner guilty because of "Petitioner's admission of guilt to the written charge at the time of the hearing, specifically: 'I was browsing to practice another test. I may have accidentally selected that option.'" Id. The violation was reduced to a CDC- 128A violation, and Petitioner "was counseled and reprimanded." Id.

On February 15, 2007, the second level denied Petitioner's administrative appeal. Id. at 72. The second level reasoned that Petitioner "had signed and agreed to specific work expectations . . . not to manipulate the setting of the computer." Id. That denial stated, "This response constitutes final action of this appeal per 3084.7(b)(1)." Resp't's Answer Ex. 5, pt. 1, at 72.

B. Disobeying a Direct Order (C12/06-052)

Officer H. Medina stated in his rules violation report that on December 13, 2006, he "was walking pas[t] Vocational Office Services when Ms. Babrah, the Instructor, came out of the class and stated to [him], 'Could you explain to [Petitioner] he needs to get down during an alarm?'" Id. at 79. Officer Medina reported that he "instructed [Petitioner] to get down during an alarm," and "[Petitioner] complied with [his] order." Id. In a supplemental report, Officer Medina elaborated:

Ms. Babrah stated that when she walked by the inmate bathroom[,] she saw [Petitioner] standing at the mirror. She told him to come out and sit down. [Petitioner] looked at her and smiled, then turned back towards the mirror. Ms. Babrah was aware of the fact that [Petitioner] claims that he is hearing impaired and had told [Petitioner] to wear his hearing aid. [Petitioner] was still standing when Officer Medina came into Ms. Babrah's class. [Petitioner] did not get down until ordered by Officer Medina.

Id. at 83.

A hearing was conducted on December 29, 2006. Id. at 81. Petitioner pleaded not guilty and stated:

I was using the restroom. I did not hear her . . . . I am ADA Hearing Impaired. I only heard her one time and one time only. When I did hear her[,] I responded by coming out of the restroom. I took two steps to the nearest computer so that I would not be in the path of officers, then I got down. In the process of getting down she called Officer Medina. The OSS policy and practice is to not come out of the restroom during the code.

Id. Petitioner requested four witnesses, which included Instructor Babrah, Officer Medina, Inmate Jesperson, and Inmate Lujano. Id. These requests were granted, except for Inmate Jesperson, who "did not witness this occurrence." Id. The senior hearing officer found Petitioner guilty, and the violation was reduced to an administrative level CDC-115 violation for which Petitioner "was counseled and reprimanded." Id. at 83.

On March 6, 2007, the second level denied Petitioner's administrative appeal. Id. at 92. That denial stated, "[Petitioner] is advised that this issue may be submitted for a Director's Level of Review if desired." Id. at 93. On March 27, 2007, Petitioner filed his appeal at the director's level, id. at 95, but on June 12, 2007, Petitioner's appeal was returned to him because "[t]he Second Level of Review is considered the department's final action in regard to Rules Violation Reports classified as Administrative." Id. at 97.

C. State Habeas Petitions

On February 13, 2008, Petitioner filed a habeas petition in the Amador County Superior Court challenging the two disciplinary actions. See Resp't's Answer Ex. 1. On April 8, 2008, the Superior Court denied the petition, stating "the record reflects that some evidence supports said disciplinary actions." See Resp't's Answer Ex. 4, at 63 (citations omitted).

On June 16, 2008, Petitioner filed a habeas petition in the California Court of Appeal, Third Appellate District. See Resp't's Answer Ex. 5. On June 19, 2008, the Court of Appeal denied the habeas petition without comment or citation. See Resp't's Answer Ex. 6, at 2.

On July 29, 2008, Petitioner filed a habeas petition in the California Supreme Court. See Resp't's Answer Ex. 7. On October 1, 2008, the California Supreme Court denied the habeas petition, with only a citation to In re Dexter, 25 Cal. 3d 921, 160 Cal. Rptr. 118, 603 P.2d 35 (1979). Resp't's Mot. To Dismiss Ex. 1, at 7, Mar. 17, 2009, ECF No. 9. In re Dexter held that "a litigant will not be afforded judicial relief unless he has exhausted available administrative remedies." 25 Cal. 3d at 925, 160 Cal. Rptr. 118, 603 P.2d 35.

D. Federal Habeas Petition

On October 9, 2008, Petitioner filed the instant federal habeas petition. On March 17, 2009, Respondent filed the first of two motions to dismiss because "[t]he California Supreme Court based its [habeas] denial on [Petitioner's] failure to exhaust his administrative remedies." Resp't's Mot. To Dismiss 4, Mar. 17, 2009. On April 9, 2009, Petitioner filed an opposition to the motion. See Pet'r's Opp'n, Apr. 9, 2010, ECF No. 13. The record does not show that Respondent filed a reply.

On November 19, 2009, the Honorable Craig M. Kellison, the assigned magistrate judge at the time, issued findings and recommendations denying the motion to dismiss because "[P]petitioner did exhaust all administrative remedies available to him." Findings and Recommendations 2-3, Nov. 19, 2009, ECF No. 16 (noting: (1) for proceedings on misuse of computer, second level "denial specifically states that '[t]his response constitutes final action of this appeal per 3084.7(b)(1);'" and (2) for proceedings on disobeying direct order, Petitioner's appeal to director's level was returned because "the second level review is considered the final action for that type of violation"). On December 4, 2008, Respondent filed a request to withdraw the motion to dismiss, see Resp't's Req., Dec. 4, 2008, ECF No. 17, which was granted on December 15, 2008. See Order 1-2, Dec. 15, 2008, ECF No. 19.

On January 25, 2010, Respondent filed a second motion to dismiss, arguing that "the [p]etition should be denied for lack of federal habeas jurisdiction." Resp't's Mot. To Dismiss 2, Jan. 25, 2010, ECF No. 22. Respondent asserted that because "the prison disciplinaries did not result in a credit loss," they "do not affect the legality or duration of [Petitioner's] confinement." Id. On February 24, 2010, Petitioner filed an opposition to the motion, see Pet'r's Opp'n, Feb. 24, 2010, ECF No. 23, and Respondent filed a reply on March 5, 2010. See Resp't's Reply, Mar. 5, 2009, ECF No. 24. On March 30, 2010, Petitioner also filed three requests for judicial notice. See Pet'r's Reqs., Mar. 30, 2010, ECF Nos. 25-27.

On July 1, 2010, the Honorable Craig M. Kellison, the assigned magistrate judge at the time, issued findings and recommendations denying the second motion to dismiss because "[e]xpungement of [Petitioner's] conviction for the rules violation, if warranted, is both likely to accelerate his eligibility for parole, and could potentially affect the duration of [his] confinement." Findings and Recommendations 3, July 1, 2010, ECF No. 29 (internal citations and quotation marks omitted). The district court adopted the findings and recommendations in full on July 28, 2010. See Order 1-2, July 28, 2010, ECF No. 30. On August 25, 2010, Respondent filed an answer, to which Petitioner filed a traverse on October 8, 2010.

III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS

An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359, 362 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings unless the state court's 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. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).

In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable--a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005)).

IV. REQUESTS FOR REVIEW

Petitioner requests judicial notice of: (1) the hearing decision fact sheet and proposed decision by the Board of Parole Hearings (the "Board"), see Pet'r's Req., Mar. 30, 2010, ECF No. 25; (2) the Board's hearing transcript from the July 11, 2002, hearing, see Pet'r's Req., Mar. 30, 2010, ECF No. 26; and (3) the Board's hearing transcript from the August 27, 2008, hearing. See Pet'r's Req., Mar. 30, 2010, ECF No. 27. Respondent has not filed any objection to the requests.

Federal Rule of Evidence 201(b) provides that "[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court[;] or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Here, Respondent has not objected to Petitioner's requests for judicial notice of the hearing decision fact sheet, the proposed decision, and the transcripts, which are "capable of accurate and ready determination" as to their accuracy. FED. R. EVID. 201(b). Judicial notice of the hearing decision fact sheet, the proposed decision, and the transcripts is granted.

This matter is now ready for decision. For the following reasons, it is recommended that habeas relief be denied. It is further recommended that Petitioner's claims that should be raised in a civil rights action under § 1983, and not in a § 2254 habeas petition, be dismissed without prejudice.

V. CLAIMS FOR REVIEW

The petition for writ of habeas corpus sets forth three grounds for relief based on: (1) due process violations; (2) First Amendment violations; and (3) discriminatory retaliation. Pet'r's Pet. 11-29, ECF No. 1.*fn2 Some of Petitioner's three grounds fo relief overlap. To the extent possible, the grounds resolved by binding authority are grouped together. Ground two is referenced more than once as it refers to separate issues. Petitioner's grounds are addressed as follows:

1. Grounds One and Two: Due Process

2. Grounds Two and Three: First Amendment and Discriminatory Retaliation

A. State Court Decision

Here, it is undisputed that Petitioner presented all three claims to the Superior Court, the Court of Appeal, and the California Supreme Court, and the petition is exhausted. See Resp't's Answer Exs. 1, 5, 7. However, it is unclear whether a reasoned state court decision explaining denial of the claims exists. "The question of which state court decision last 'explained' the reasons for [judgment] is therefore relevant only for purposes of determining whether the state court decision was 'contrary to' or an 'unreasonable application of' clearly established federal law as required by § 2254(d)." Bailey v. Rae, 339 F.3d 1107, 1113 (9th Cir. 2003).

As the last assigned magistrate judge found, the California Supreme Court improperly denied Petitioner's claims on procedural grounds with only a citation to In re Dexter, 25 Cal. 3d 921, 160 Cal. Rptr. 118, 603 P.2d 35 (1979). See Findings and Recommendations, Nov. 19, 2009. The California Supreme Court never reached the merits of Petitioner's claims and did not issue a reasoned decision. See Resp't's Mot. To Dismiss Ex. 1, at 7, Mar. 17, 2009.

The Court of Appeal reached the merits of Petitioner's claims, as it denied the petition without comment or citation. See, e.g., Hunter v. Aispuro, 982 F.2d 344, 347-58 (9th Cir. 1992) ("[T]he California Supreme Court's denial of a habeas petition without comment or citation constituted a decision on the merits of the federal claims, and thus such claims would be subject to review in federal habeas proceedings."). However, the Court of Appeal's decision provided no reasons for denial, as it contained no comment or citation, and is not a reasoned opinion. See Resp't's Answer Ex. 6, at 2.

The Superior Court's decision came the closest to a reasoned opinion. The Superior Court stated, in full:

The Court has read and considered the petition for a writ of habeas corpus filed by [Petitioner], an inmate at Mule Creek State Prison. The Court, having read and considered the petition, informal response, reply to informal response, and supporting documents, hereby denies the petition.

The petitioner contests two disciplinary actions. However, the record reflects that some evidence supports said disciplinary actions. (In re Powell (1988) 45 Cal.3d 894, 904; In re Ramirez (2004) 94 Cal.App.4th 549, 563.)

Therefore, based on the foregoing, the petition is denied.

IT IS SO ORDERED.

Resp't's Answer Ex. 4, at 63-64. At best, the Superior Court's decision addressed part of Petitioner's due process claims, since the Superior Court found that "some evidence supports said disciplinary actions." Id. at 63. The Superior Court, however, did not fully address Petitioner's due process claims, nor did it issue a reasoned opinion on Petitioner's second and third claims on First Amendment violations and discriminatory retaliation.

Since it is unclear whether any state court issued a reasoned opinion, an independent review of the record is conducted to determine whether the Superior Court, which issued a denial most closely resembling a reasoned opinion, clearly erred in its application of controlling federal law, and whether its decision was objectively unreasonable. See Delgado, 223 F.3d at 981-82 (conducting "independent review of the record" where "the state court does not supply reasoning for its decision"); see also Delgadillo, 527 F.3d at 925 ("The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." (citations omitted)); cf., e.g., Bailey, 339 F.3d at 1113 ("We need not resolve that question" of "which state court decision last 'explained' the reasons for judgment" because there, the petitioner "is entitled to relief regardless of which state court decision we review.").

B. Grounds One and Two: Due Process

1. Petitioner's Claims

In ground one, Petitioner argues his due process rights were violated during his disciplinary action for misuse of a computer. Accordingly to Petitioner, there was an improper:

(1) "change in fact-finders in the middle of a hearing;" (2) "unofficial presence of anyone who previously participated in producing the disciplinary reports or investigations;" and (3) "refusal to permit a defense by failing to accept documentary evidence." Pet'r's Pet. 18. Petitioner asserts that on November 22, 2006, Sergeant Bond initiated the hearing, which "was continued, with the Petitioner's consent for one week . . . . However, C/Sgt. Bond did not return . . . the following week and, two weeks later, C/Sgt. Peterson commenced a new and different hearing on this disciplinary [action]" at which "a second C/Sgt., identified as F. Garrett, was present." Id. at 12, 15. "Based on advise [sic] from C/Sgt. Garrett, the HO refused to accept Petitioner's documentary evidence, with the exception of his written statement . . . ." Id. at 15. Petitioner contends since "C/Sgt. F. Garrett is the same person who initially reviewed and approved the disciplinary action on November 17, 2006," Sergeant Garrett had a predetermined belief of Petitioner's guilt and should not have been present during this hearing. Id. at 16.

In ground two, Petitioner alleges his due process rights were violated during his disciplinary action for disobeying a direct order. According to Petitioner, the senior hearing officer "show[ed] bias and prejudice, if not falsehood in reporting." Id. at 21. Petitioner asserts the senior hearing officer failed to record the "determination that [Instructor Babrah] was not being completely truthful in her statements at the hearing" on disobeying a direct order. Id. at 20. According to Petitioner, Instructor Babrah testified that "'about 5 minutes' elapsed between the time the 'Code 1 was announced to when [Petitioner] got down.'" Id. (citation omitted). After Instructor Babrah finished testifying, Petitioner claims the senior hearing officer informed Petitioner "he had checked the prison's log prior to commencing the hearing and determined the Code was secure within one minute of activation as a 'false alarm.'" Id. at 20-21 (citation omitted). Petitioner asserts that "[p]roduction of those logs will confirm this analysis." Id. at 21. Petitioner also contends that Instructor Babrah failed to "inform the SHO" that procedures "posted in her classroom directly instructs '[i]nmates . . . to immediately sit in their seats' upon activation of a code . . . ." Id. (citation omitted).

2. Legal Standard for Due Process

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, Mass. Corr. Inst. at Walpole v. Hill, 472 U.S. 445, 454-455 (1984)).

"Where a prison disciplinary hearing may result in the loss of good time credits, Wolff held that the inmate must receive: (1) advance written notice 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 (citing Wolff, 418 U.S. at 563-67). In addition, due process requires that the decision be supported by "some evidence." Id. at 455 (citing United States ex rel. Vajtauer v. Comm'r of Immigration, 273 U.S. 103, 106 (1927)). The "some evidence" standard is not particularly stringent and is satisfied where "there is any evidence in the record that could support the conclusion reached." Id. at 455-56. A violation of prison regulations does not give rise to a due process claim as long as these minimum protections have been provided. See Walker v. Sumner, 14 F.3d 1415, 1419-20 (9th Cir. 1994).

Further, a hearing conducted by a biased hearing officer may violate a prisoner's due process rights. Wolff, 418 U.S. at 571. To support a claim of bias, a petitioner must demonstrate actual bias or the appearance of bias. See Taylor v. Hayes, 418 U.S. 488, 501 (1974). Bias cannot be shown from an adverse ruling in a pending case: the alleged bias must be from an extra-judicial source. Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir. 2008).

3. Analysis of Due Process Claims

Here, Petitioner's due process rights were not violated. First, the record reflects that Petitioner received copies of all non-confidential documents, including written statements of the violations, at least twenty-four hours prior to the hearing. See Resp't's Answer Ex. 5, pt. 1, at 40, 80.

Second, the record reveals that Petitioner had "an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense." Hill, 472 U.S. at 454. For his hearing on misuse of a computer, Petitioner contends the senior hearing officer only accepted "one of eight exhibits Petitioner attempted to enter into evidence." Pet'r's Pet. 17. But see Resp't's Answer Ex. 5, pt. 1, at 40 (stating, in hearing report, that "[a]ll documented evidence was reviewed and considered"). Accordingly to Petitioner, "[t]he only one the HO accepted was Petitioner's written statement," i.e., Exhibit A. Pet'r's Pet. 17. In Exhibit A, Petitioner referred to the other seven exhibits, summarized them, and stated for what purpose they served. See, e.g., Resp't's Answer Ex. 5, pt. 1, at 57 (citing exhibit B to show Petitioner did not "change . . . the configuration to the computer); id. (citing exhibit F to show another individual had allegedly "witnessed Ms. Babrah's voice tone and words as being unprofessional toward [Petitioner]); id. at 58 (citing exhibits C, D, E, F, G, and H to "demonstrat[e] and indicat[e] that Ms. Babrah has presently targeted [Petitioner] for harassment"); id. at 59 (explaining exhibit C is a "memorandum" that "documented" the "harassment of [Petitioner] by Ms. Babrah").

Specifically, the other documents include the following, none of which are certified or authenticated:

1. Exhibit B is a declaration by Bradley Schrader, V-57388. Id. at 60. Schrader declared he has a "Masters Degree in Aeronautics and Astronautics from Stanford University," and "it is [his] professional opinion that selecting standard options in the Mavis Beacon typing program, definitely, does not change the computer's configurations." Id.

2. Exhibit C is a memorandum that Petitioner prepared documenting a "pattern of physical, material, verbal and psychological abuse by Ms. Babrah towards [Petitioner]." Id. at 63. Alleged incidents include, inter alia, when Instructor Babrah:

(1) "walked up to [Petitioner] and rudely pulled [a] book out of [Petitioner's] hand" and "tossed the book" so it "f[e]ll to the floor," id. at 61; (2) "made [Petitioner] wait last for his [identification] card;" id.; and (3) repeatedly yelled at Petitioner. Id. at 62-63.

3. Exhibit D is a declaration by Tony Formbly, V-96196. Id. at 64. Formbly declared he was, at the time, "an OSS Student" who observed "OSS students practice their typing." Id. According to Formbly, a week before November 14, 2006, Petitioner "asked [him] if he could also practice his typing on said computer." Id. Formbly responded, "'As long as no one is type testing, yes you could.'" Id. Formbly added, "It is up to [Petitioner] as to what level he wants to practice" his typing. Id. But see infra p. 16.

4. Exhibit E is a declaration by David McVey, P-57366. Id. at 65-66. McVey declared, inter alia, that Instructor Babrah "behaved disrespectfully," "made snide remarks to [McVey]," and "rolled her eyes up in the air repeated[ly] while [McVey was] speaking." Id. at 65.

5. Exhibit F is a declaration by Martin Barnett, T-48897. Id. at 67. Barnett declared that "if called to testify, [he] will testify that Ms. Babrah's tone of voice[] [and] words were said in such a way as to make her conduct toward [Petitioner] unprofessional." Id. Barnett further stated, "in the past, the TA's have altered the type test to a child level for me." Id.

6. Exhibit G is a declaration by Randy Becktold, F-08877. Id. at 68. Becktold declared that "Ms. Babrah is unprofessional towards inmates in class who she does not care for[,]" and "she did appear to target [Petitioner] for some reason." Id.

7. Exhibit H is a declaration from Eddie M. Vargas, Sr., K-63463. Id. at 69. Vargas declared he informed Instructor Babrah he "was not interested in being in [her] class" because he "would rather have a job with a pay number." Id. Vargas asserted that "[f]rom then on," she singled him out in class, "constantly spied" on him, paid "extra attention" to him, and "openly criticized" him. Id.

"[T]he inmate facing disciplinary proceedings should be allowed 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." Wolff, 418 U.S. at 566. Prison officials have the "discretion to keep the hearing within reasonable limits." Ponte v. Real, 471 U.S. 491, 496 (1985) (quoting Wolff, 418 U.S. at 566). For example, "[a]lthough we do not prescribe it, it would be useful for the Committee to state its reason for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases." Wolff, 418 U.S. at 566.

Here, there is no evidence the senior hearing officer only "accepted" Exhibit A into evidence, aside from Petitioner's own statements. The hearing report stated that "[a]ll documented evidence was reviewed and considered." Resp't's Answer Ex. 5, pt. 1, at 40. Even if the senior hearing officer only accepted Exhibit A, the senior hearing officer was within his discretion to do so. See Ponte, 471 U.S. at 496. Exhibit A summarized the other exhibits and placed them into context in Petitioner's case, making the other exhibits "irrelevan[t]" or not necessary. See Wolff, 418 U.S. at 566. Further, as stated earlier, none of the exhibits were certified or authenticated.

Rather, the record shows Petitioner was able to "to call witnesses and present documentary evidence" at both of his hearings. Hill, 472 U.S. at 454. For his hearing on misuse of a computer, Petitioner did not request any witnesses, and as stated earlier, the hearing report indicated that "[a]ll documented evidence was reviewed and considered." Resp't's Answer Ex. 5, pt. 1, at 40. For his hearing on disobeying a direct order, Petitioner's request for four witnesses was granted, with the exception of Inmate Jesperson, because "Inmate Jesperson did not witness this occurrence." Id. at 81. Petitioner's due process rights were not violated because he was allowed to call witnesses and present documentary evidence in his defense.

Third, each hearing was held within thirty days of the respective rule violation. Id. at 39-40, 79, 81-83. A report was issued after each hearing, setting forth the evidence on which the senior hearing officer relied in finding Petitioner guilty. Id. at 40, 81-83.

Fourth, "some evidence" supports both disciplinary actions. Hill, 472 U.S. at 455. The record shows some evidence supports the senior hearing officer's finding of guilt for misuse of a computer. Title 15, section 3041(d) of the California Code of Regulations states: "Inmates assigned to educational, vocational, or other training programs must cooperate with the instructor or the person in charge, and must comply with instructions, and all requirements for participation in the assigned activity." Here, the record shows Petitioner signed and dated a form titled, "Inmate/Student Computer Use," on August 7, 2006, over three months prior to the alleged violation. Resp't's Answer Ex. 5, pt. 1, at 41. This form states, inter alia:

The student will utilize only Microsoft Word, Excel, Access, and PowerPoint. Do not "explore" these programs unless you are working on an assignment.

Students are not allowed to change any configurations in the computer, examples include: screen savers, desktops, task bars. . . . .

At times you may use another student's computer. You must confirm with your instructor and obtain the student's approval prior to this temporary computer use.

It is your responsibility to ask questions. If you are not sure . . . ASK! Before you click, delete, or try something . . . ask.

Id. at 41-42. The bottom of the form, right above where Petitioner signed and dated, states:

I have read, understand, and am willing to follow all of the rules for computer use in the Vocational Education Office Services class. I understand any violation or any non-compliance will result in disciplinary action. I am aware if I receive a CDC115, a chrono will be placed in my 'C' file to deny further access to any use of computers while in CDC.

Id. at 42. The record indicates, and Petitioner admitted, that he "was browsing to practice another test" and "may have accidentally selected that option," without Instructor Babrah's permission. Id. at 40. The record also shows Petitioner knew he could not change any configurations on the computer.

Some evidence also supports the senior hearing officer's finding of guilt for disobeying a direct order. Title 15, section 3005(b) of the California Code of Regulations 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." Here, the record shows Petitioner ignored a direct order from Instructor Babrah to "get down" during a "code one alarm." Resp't's Answer Ex. 5, pt. 1, at 79. The Superior Court's decision that "some evidence" supported the senior hearing officers' findings of guilt was not an unreasonable application of clearly established federal law. Hill, 472 U.S. at 455.

Finally, Petitioner failed to bring forth any evidence of actual bias on the senior hearing officer's part. Nothing in the record, aside from Petitioner's own assertion, indicates the senior hearing officer told Petitioner that the "Code was secure within one minute of activation as a 'false alarm.'" Pet'r's Pet. 20-21. Even if this occurred, it is irrelevant. The senior hearing officer was aware Instructor Babrah's testimony slightly differed from Officer Medina's testimony as to when Petitioner "got down" during the code alarm. See id. at 20. Petitioner claims Instructor Babrah testified that fives minutes lapsed between the time the code alarm was announced to when Petitioner "got down." Id. Officer Medina, however, testified "[i]t was approximately 11/2 to 2 minutes" from "when the Code 1 was announced until [Petitioner] complied with [his] order and got down." Resp't's Answer Ex. 5, pt. 1, at 81. Further, the hearing report reveals Instructor Babrah did tell the senior hearing officer about inmate procedures during alarm codes, since Petitioner questioned her about it:

[PETITIONER]: Why were you telling me to come out of the restroom during the Code 1 when you never tell other inmates to come out as OSS policy?

[INSTRUCTOR BABRAH]: The day before we had a safety meeting and I told them that they needed to be sitting in a chair. They cannot be standing or walking around.

[PETITIONER]: Why didn't you tell the inmates in the math workshop to come out of the workshop?

[INSTRUCTOR BABRAH]: I have no idea other than they were sitting. Standing looking into a mirror is not complying with the code.

Id. at 82. Without any other evidence, this does not give rise to an objective appearance of bias. Production of prison logs is unnecessary, and Petitioner's due process claims are without merit.

C. Grounds Two and Three: First Amendment and Discriminatory Retaliation Claims

In ground two, Petitioner claims his First Amendment rights were violated because "[t]he normal limits or range of disciplinary actions authorized in California prisons do[] not include:

(1) refusal to recognize [Petitioner's] ADA status; . . . and[] ([2]) denial of assistance to one with [a] disability[,] and no access to a particular are[a] of the prison necessary for his defense." Pet'r's Pet. 24. In ground three, Petitioner argues "[t]he discrimination and retaliation evidence throughout these prison proceedings made it impossible for [Petitioner] to receive a fair hearing." Id. at 28.

Generally, a prisoner's complaint that prison officials are violating the prisoner's First Amendment rights must be raised in a civil rights action under § 1983, and not in a § 2254 habeas petition. See, e.g., Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam) ("Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus [;] . . . requests for relief turning on circumstances of confinement may be presented in a § 1983 action."); Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir. 2002) (listing First Amendment claims cognizable in § 1983 civil rights actions).

Likewise, discriminatory retaliation claims must be raised in a civil rights action under § 1983, and not in a § 2254 habeas petition. See, e.g., Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) ("The district court correctly found that Ninth Circuit case law has recognized that retaliation claims like [the petitioner's] state a valid cause of action under § 1983."); see also, e.g., Woods v. Smith, 60 F.3d 1161, 1163 (5th Cir. 1995); Jones v. Coughlin, 45 F.3d 677, 678-79 (2d Cir. 1995); Sprouse v. Babcock, 870 F.2d 450, 451 (8th Cir. 1989); Cale v. Johnson, 861 F.2d 943, 948-51 (6th Cir. 1988); Franco v. Kelly, 854 F.2d 584, 585 (2d Cir. 1988); Hines v. Gomez, 853 F. Supp. 329, 329 (N.D. Cal. 1994).

A federal court has discretion to construe a mislabeled habeas corpus petition as a civil rights action and permit the action to proceed as such. See Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (per curiam) (holding state prisoners' habeas petitions, which challenged their living conditions and disciplinary measures and did not seek release, could be read to plead § 1983 claims), overruled on other grounds by Woodford v. Ngo, 548 U.S. 81 (2006); Hansen v. May, 502 F.2d 728, 729-30 (9th Cir. 1974) (finding, where habeas petition "clearly . . . [did] not challeng[e] any conviction or seek[] release from custody," but only sought return of property or reimbursement, court could interpret petition as civil rights complaint). However, provisions of the Prison Litigation Reform Act of 1995 ("PLRA") may make it inappropriate to construe a habeas petition as a civil rights complaint. Due to the PLRA's filing fee requirements, its provisions requiring sua sponte review of complaints, and its limits on the number of actions a prisoner may be permitted to file in forma pauperis, a prisoner should not be obligated to proceed with a civil rights action unless the prisoner clearly wishes to do so. See 28 U.S.C. §§ 1915 & 1915A; 42 U.S.C. § 1997e; Bunn v. Conley, 309 F.3d 1002, 1007 (7th Cir. 2002) (stating courts should not recharacterize nature of prisoner's claim because PLRA and AEDPA created "pitfalls of different kinds for prisoners using the wrong vehicle"); cf. Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997) (finding court should not convert civil rights action into habeas petition due to implications of abuse of writ doctrine); Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (same). It is recommended that these claims be dismissed without prejudice instead of converting these claims into a § 1983 action.

VI. CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that Petitioner's requests for judicial notice of the Board's (1) hearing decision fact sheet and proposed decision; (2) hearing transcript from the July 11, 2002, hearing; and (3) hearing transcript from the August 27, 2008, hearing, are GRANTED.

IT IS HEREBY RECOMMENDED that:

1. Petitioner's application for writ of habeas corpus be DENIED; and

2. Petitioner's claims regarding (1) "[a] refusal to recognize [Petitioner's] ADA status," Pet'r's Pet. 24; (2) "denial of assistance to one with [a] disability[,] and no access to a particular are[a] of the prison necessary for his defense," id.; and (3) discriminatory retaliation, be DISMISSED WITHOUT PREJUDICE.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days after being served with these findings and recommendations, 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." Any reply to the objections shall be served and filed within seven days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). In any objections he elects to file, Petitioner may address whether a certificate of appealability should be issued in the event he elects to file an appeal from the judgment in this case. See Rule 11(a), Federal Rules Governing Section 2254 Cases (district court must issue or deny certificate of appealability when it enters final order adverse to applicant).


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