The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2009 prison disciplinary conviction for introduction/distribution of a controlled substance (heroin) into a state prison in violation of California Code of Regulation Title 15, section 3016(c). Petitioner was assessed 180 days of time credits for this conviction.*fn1
In the petition form, petitioner lists four claims: 1) inadequate notice of the charges; 2) denial of an investigative employee and witnesses; 3) denial of appeal process; and 4) request for restoration of credits assessed for the year prior to the administrative hearing.
(Dkt. No. 1 at 5.) However, in the points and authorities, petitioner states that he is raising two claims: 1) inadequate notice of the charges; and 2) denial of an investigative employee and witnesses. (Id. at 13.) In the answer, respondent addresses only petitioner's claims that he was given inadequate notice of the charges and denied an investigative employee. The undersigned will address all claims raised by petitioner.
After carefully considering the record, the undersigned recommends that the petition be denied.
II. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a 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). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Federal habeas corpus relief 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.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. 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. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'") (internal citations omitted). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). If there is no reasoned decision, "and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. That presumption may be overcome by a showing that "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).
Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal court conducts an independent review of the record. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Where no reasoned decision is available, the habeas petitioner has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784. "[A] habeas court must determine what arguments or theories supported or, . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786.
III. Discussion A. Background
The rules violation report describes the circumstances of petitioner's offense as follows:
On Saturday, April 12, 2008, at approximately 1020 hours, as part of an ongoing investigation into the trafficking/smuggling of narcotics into Mule Creek State Prison (MCSP), ISU Officer S. Pettis and I were conducting video surveillance of the Facility "A" Visiting Room. I observed Ms. K. Hannon (DOB: 11/06/1961) seated at table # 33, just to the left of inmate WILLIAMS, E-65738, A3-204U. As part of my observation of Ms. Hannon, her facial expressions gave me the impression that she was very nervous about something. In my training and experience, this nervous behavior from a visitor is common to see right before narcotics/contraband is passed to the inmate from a visitor. Ms. Hannon moved her right hand to her right rear waist area of her pants and appeared to remove suspected contraband from her waistband with her right hand. Ms. Hannon appeared to pass the suspected contraband from her right hand to inmate WILLIAMS' left hand. Inmate WILLIAMS put both his right and left hands together in front of his waist but it appeared the suspected contraband remained in his left hand.
At approximately 1023 hours, inmate WILLIAMS moved his left hand and arm behind his left side. The hand and part of the arm went out of my view but were in the area of the top back opening of his state issued denim jeans. In my training and experience, inmate WILLIAMS' movement is typical of an inmate trying to conceal contraband in his rectal cavity so as to avoid detection when smuggling the contraband into the prison. I believed inmate WILLIAMS had placed contraband into his rectal cavity with this movement. I called the Visitor Processing Office and requested Sergeant T. Mulford to respond to the ISU Office. I called "911" and requested the Ione Police Department to assist in this matter. At approximately 1043 hours, with the assistance of Visiting Officer J. Ebeling and Visiting Sergeant Mulford, ISU Officer Pettis and I responded to Facility "A" Visiting via the foyer between "A" and "B" Visiting Rooms. Upon arriving in Facility
"A" Visiting, I observed inmate WILLIAMS and his approved visitor, Ms. K. Hannon, seated at table # 33, just inside the door and to the left of where we had entered the Visiting Room. Sergeant Mulford and I ordered WILLIAMS to stand up and place his hands behind his back; which he complied. I assisted Sergeant Mulford with placing handcuffs on inmate WILLIAMS. Sergeant Mulford took custody of inmate WILLIAMS while I placed inmate WILLIAMS' socks up and over the cuffs of his denim jeans. While pulling over the socks of inmate WILLIAMS' jeans, I discovered (2) folded, pre-addressed envelopes in the left sock of inmate WILLIAMS. I removed the envelopes and placed them in the front zipper of my jumpsuit.
I took custody of inmate WILLIAMS from Sergeant Mulford and with Sergeant Mulford's assistance, I escorted inmate WILLIAMS out of Facility "A" Visiting, through the Facility "A" Inmate Search Room enroute to BCS Cell # 1. Upon arriving at BCS cell # 1, I performed a clothed body search on inmate WILLIAMS, which was negative for contraband. I removed the handcuffs from inmate WILLIAMS and performed an unclothed body search of inmate WILLIAMS. I observed that inmate WILLIAMS' rectal area appeared to be lubricated with an unknown clear jelly-like substance. In my training and experience, I have learned that inmates will lubricate their rectal area before placing contraband into the cavity to make placing the contraband into the rectal cavity easier. The unclothed body search was negative for additional contraband. I placed inmate WILLIAMS into BCS attire and secured him into BCS cell # 1. I relinquished custody of inmate WILLIAMS to Officer A. Robb who continued observation of inmate WILLIAMS.
I responded to the Visitor Processing Sergeant's Office to conduct an interview with Ms. K. Hannon (see CD placed into ISU Evidence Locker # 2 on April 14, 2008). With Ione Police Department Sergeant R. Harpham and ISU Officer Pettis as witnesses, I advised Ms. K. Hannon of her Constitutional Rights pursuant to the Miranda Decision. Ms. K. Hannon stated she understood her rights and we proceeded to question Ms. K. Hannon pertaining to this case. Also, while in the Visiting Sergeant's Office (prior to Ms. K. Hannon being brought in and interviewed), I observed ISU Officer S. Pettis open and photograph the contents of a bindle that contained a note which had been confiscated from Ms. K. Hannon. I received written permission from Ms. K. Hannon to search her vehicle.
At approximately 1430 hours, I returned to the ISU office and took (8) digital photographs of the pre-addressed envelopes and the contents within the envelopes. I processed eight (8) printed digital photographs, one (1) VHS videotape and two (2) pre-addressed envelopes (including contents) into ISU Evidence Locker # 10 per institutional procedures.
On Saturday April 13, 2008, at approximately 2248 hours, Officer
W. Childress discovered suspected Heroin at the conclusion of a bowel movement that inmate WILLIAMS had while in BCS cell #
On Monday, April 14, 2008, at approximately 1400 hours, Officer Childress removed the BCS attire from inmate WILLIAMS and placed handcuffs on inmate WILLIAMS. I assisted Officer Childress with escorting inmate WILLIAMS to Receiving and Release where Registered Nurse A. Kettlehake medically checked and cleared inmate WILLIAMS prior to being re-housed in Administrative Segregation. I assisted Officer Childress escorting inmate WILLIAMS to Building # 13, Administrative Segregation. On Monday, April 14, 2008, at approximately 1600 hours, I placed two (2) CD's into ISU Evidence Locker # 2. One CD contained the eight (8) digital ...