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Larry Rosser v. Matthew Cate


January 19, 2012


The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge


Petitioner Larry Rosser is a state prisoner proceeding pro se and in forma pauperis with a first amended petition for writ of habeas corpus [Doc. No. 4] pursuant to Title 28 of the United States Code, section 2254. Petitioner challenges prison disciplinary proceedings which resulted in a guilty finding for possession of a deadly weapon and the loss of 181 days of good time credits. Respondent filed an answer [Doc. No. 7] and Petitioner filed a traverse [Doc. No. 10]. The matter is currently before the Court for review of the Report and Recommendation prepared by the assigned magistrate judge recommending that the first amended petition be granted [Doc. No. 11]. Petitioner filed objections to the Report and Recommendation [Doc. No. 15]. Respondent requested and received an extension of time to object to the Report and Recommendation [Doc. Nos. 13, 14]. The deadline for objecting to the Report and Recommendation has passed. Respondent has not filed objections.


On June 24, 2008, prison officials confiscated property from Petitioner's cell, including a legal dictionary belonging to his cell mate, in which a razor blade was hidden. Thereafter, Petitioner was charged with possession of a deadly weapon in violation of Title 15 of the California Code of Regulations, section 3006(a). On August 5, 2008, a prison disciplinary hearing was held and the assigned hearing officer found Petitioner guilty of the charge. The hearing officer assessed a forfeiture of 181 days of good time credits. Petitioner unsuccessfully sought habeas relief in state court, claiming various violations of his due process rights. Petitioner alleges these claims in his first amended petition. The magistrate judge recommends the Court deny Petitioner's procedural due process claims, but grant Petitioner's substantive claim that his guilty finding was not supported by any reliable evidence.

Petitioner objects to the magistrate judge's finding that he received the procedural process due under the standards set forth in Wolff v. McDonnell, 418 U.S. 539 (1974). Petitioner argues that the hearing officer was biased, and relied upon insufficient evidence to find him guilty of possessing a deadly weapon. Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1), the Court must "make a de novo determination of those portions of the report . . . to which objection is made," and "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); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). Because of the broad scope of Petitioner's objections, the Court has conducted a de novo review of the entire record. For the reasons discussed below, the Court finds Petitioner's objections to be without merit.

The Supreme Court held in Wolff v. McDonnell that prisoners are not afforded the full panoply of rights in prison disciplinary proceedings because those rights are necessarily moderated by the "legitimate institutional needs" of the prison. Wolff, 418 U.S. at 556; Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989), citing Superintendent, Mass. Corr. Inst. at Walpole v. Hill, 472 U.S. 445, 454-55 (1984). However, when a prison disciplinary proceeding may result in the loss of good time credits, due process requires that the prisoner receive: (1) a minimum of 24 hours 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 defense of the charges; and (3) a written statement by the fact finder of the evidence ultimately relied on and the reasons for the disciplinary action. Hill, 472 U.S. at 454; Wolff, 418 U.S. at 563-67.

The Court agrees with the magistrate judge's finding that in this case the minimum procedural due process requirements were met. Petitioner's allegations regarding the impartiality of the hearing officer are unfounded, and the record clearly establishes that Petitioner was provided adequate notice of the charges against him, exercised his right to call witnesses and present evidence in his defense, and received a written copy of the hearing officer's decision. Petitioner's objections to the contrary are overruled.

In addition to affording a prisoner minimal procedural due process during a prison disciplinary proceeding, the outcome of the proceeding must be supported by "some evidence." Hill, 472 U.S. at 455, citing United States ex rel. Vajtauer v. Comm'r of Immigration, 273 U.S. 103, 106 (1927). The "some evidence" standard is satisfied where "there is any evidence in the record that could support the conclusion reached." Id. at 455-56. Here, the magistrate judge concludes that the outcome of Petitioner's disciplinary proceeding was not supported by any reliable evidence. As such, the magistrate judge finds that the state appellate court's decision denying habeas relief involved an unreasonable application of federal law and was based on an unreasonable determination of the facts in light of the evidence presented.*fn1 The magistrate judge recommends granting Petitioner's first amended petition on this basis. This Court respectfully disagrees, and therefore declines to adopt the corresponding portions of the Report and Recommendation.

A federal court considering a petitioner's habeas corpus claim is not required to examine the entire record, independently assess witness credibility, or weigh evidence. Hill, 472 U.S. at 455-56. The "some evidence" standard is "minimally stringent." Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987). Accordingly, the task of the reviewing court is limited to determining whether there is any evidence in the record, even if "meager," to support the outcome of the disciplinary proceeding. Hill, 472 U.S. at 455-57. Here, the state appellate court correctly found that this modest standard was easily met.

As an initial matter, that an inmate-manufactured weapon was found hidden in a book belonging to Petitioner's cell mate, in Petitioner's cell, is sufficient to support a finding of guilt for the charged offense under the "some evidence" standard. See Ramirez v. Sanders, 2008 U.S. Dist. LEXIS 102940, 2008 WL 5381089, at *3 (C.D. Cal. Dec. 18, 2008); see also Hamilton v. O'Leary, 976 F.2d 341, 345 (7th Cir. 1992) (constructive possession provides some evidence of guilt when contraband found where only a few inmates have access). The record demonstrates that the hearing officer relied on several pieces of evidence to support Petitioner's guilty finding, including a 51 page Incident Report. The Incident Report recites the accurate housing location of Petitioner and his cell mate Odell Muhammad. See Incident Report, pg. 10/51 ("Muhammad, Odell T98221 Housing ASU-151L"); pg. 11/51 ("Rosser, Larry K26537 Housing ASU-151U"). The Incident Report lists each of the prison staff members who participated in the search of Petitioner's cell and the discovery of the weapon. See Incident Report, pg. 17/51 (B. Smith); pg. 18/51 (P. Castro); pg. 19/51 (L. Hernandez). The Report establishes that Officer P. Castro conducted the search of Petitioner's cell, and personally removed the property of his cell mate Muhammad for screening:

"On Tuesday, June 24, 2008 at approximately 1257 hours, while conducting mass searches in ASU-1, I was assigned to search cell #ASU-151, located in E-Pod. Cell ASU-151 was occupied by Inmates MUHAMMAD T98221 (ASU-151L) and ROSSER K26537 (ASU-151U). I placed the lower bunk property, which is owned by MUHAMMAD, into a crate and proceeded to the Rapiscan X-Ray machine to scan the property. MUHAMMAD's property was scanned by CRT Officer A. Adams and CRT Sergeant B. Smith. The X-ray was positive for unknown contraband. Sgt. Smith removed a black colored book from MUHAMMAD's property, labeled it, and gave it to Officer L. Hernandez (S&I Officer #4) to search. I was later informed that a razor blade was discovered inside the book."

See Incident Report, pg. 28/51 (Report of P. Castro, dated 6/24/2008). Sergeant Smith's report corroborates Officer Castro's report, and sets forth the results of the screening:

"On Tuesday, June 24, 2008, while performing duties as the CRT "RAPISCAN" XRay Team, Fire Chief A. Adams and I (Sergeant B. Smith) conducted x-ray scanning of all inmate personal/state property and mattresses for contraband within ASU #1 Housing Unit. All mattresses were clearly marked with the cell number, lower/upper bunk prior to removal from the assigned cell. All state and personal property was identified as cell number, upper/lower bunk as brought to the scanning station by the assigned officer. The following items of suspected contraband, respectively were identified by the "RAPISCAN" machine and brought to a secondary inspection site by Squad Officer L. Hernandez. The following weapons were identified and seized, respectively: 1257 hours, 06/24/2008 Cell #ASU-151L, Inmate Muhammad T98221: Razor Blade hidden in book"

See Incident Report, pg. 24-25/51(Report of B. Smith, dated 6/24/2008). Sergeant Smith's report is corroborated by the Report of Fire Chief Adams.*fn2 See Incident Report, pg. 50-51/51. Officer Hernandez's report corroborates the reports of Officer Castro and Sergeant Smith, establishes the final links in the chain of custody,*fn3 and describes his discovery of the weapon and the steps he took to document his findings:

On Tuesday, June 24, 2008, while performing my duties as Security and Investigations (S&I) Officer #4, I was assigned to search property alerted to me by staff who were scanning property utilizing an X-ray machine and collect any evidence items discovered during the searches [sic] Administrative Segregation Unit (ASU).

At approximately 1257 hours, I was alerted of the possibility of contraband inside a book from cell ASU-151, assigned to Inmates Muhammad, CDC# T98221, (ASU-151L) and Rosser, CDC# K26537, (ASU-151U). I searched the book, "The Plain Language Law Dictionary," which was labeled as coming from cell ASU-151L, during which I discovered an Inmate Manufactured Weapon, secreted inside the pages. The weapon is an altered razor blade measuring approximately 1 and 1/2 inches long and 1/4 inch wide. Utilizing a digital camera, I photographed the weapon and the location of discovery. I took custody of the weapons and placed them directly into the Main S&I Evidence Room for further processing.

The digital images of all weapons and contraband items discovered were then transferred from the digital camera onto a CDR Disk, which will then be placed directly into the Main S&I Evidence Room and is to be treated as original.

See Incident Report, pg. 31-37/51 (Report of L. Hernandez, dated 6/24/2008 at top of pg. 31, reflecting accurate date of incident; signed on 6/24/2008 at pg. 37, last page of report).*fn4

The Incident Report also contains two pages which display the digital images taken by Officer Hernandez [Lodgment No. 2, Inmate Ex. A], clearly showing the front cover of the dictionary, labeled using a black marker, with "1257" (time) and "151L" (location), and then showing a razor blade of the length described in the officers' reports placed in between pages of the dictionary (around the area of terms beginning with the letter "E", as evidenced by the definitions of "escrow" and "establishment clause"). Lieutenant R. Hopper's report summarizes the discovery and source of the weapon at issue:

Weapon #07: At approximately 1257 hours, Officer Hernandez discovered Weapon #07 inside a book: "The Plain Language Law Dictionary," which was labeled as coming from cell #ASU-151, occupied by Inmates MUHAMMAD T98221 (Lower Bunk) and ROSSER K26537 (Upper Bunk).

See Incident Report, pg. 3/51 (Report of R. Hopper, dated 6/25/2008). Lt. Hopper also provides a physical description of the weapon, that corroborates Officer Hernandez's findings:

Weapon #07 described as "One (1) Inmate Manufactured Weapon (altered Razor Blade, measuring approximately 1-1/2" long and 1/4" wide, secreted inside the pages of the book: "The Plain Language Law Dictionary").

Id. at 4. Lt. Hopper's report establishes that a total of 17 weapons were confiscated during the June 24, 2008 ASU cell search, of which 12 were razor blades, one of those blades having been found in Petitioner's cell, secreted in his cell mate's legal dictionary.

The record also reflects that both Officers Castro and Hernandez provided statements to the hearing officer which corroborate the findings of their written reports. See Lodgment No. 2, Inmate Ex. B: Rules Violation Report Part C, Reporting Employee's Statement by L. Hernandez; Witness' Statement by P. Castro. The record also contains a copy of the Cell Search Receipt, dated 6/24/2008, signed by Officer Castro, identifying one razor blade as being confiscated from the housing location identifying the cell of Petitioner and his cell mate. See Lodgment No. 2., Inmate Ex. G: Cell Search Receipt.

In sum, all due process requirements were satisfied with regard to the prison disciplinary hearing challenged in Petitioner's first amended petition. The evidence relied upon by the hearing officer in finding Petitioner guilty of possessing a deadly weapon meets the applicable "some evidence" standard. The state appellate court correctly identified this standard as the appropriate standard for judicial review and reasonably applied it to Petitioner's case. Accordingly, the Court declines to adopt the magistrate judge's recommendation that Petitioner is entitled to habeas relief and DENIES Petitioner's first amended petition for a writ of habeas corpus.


A district court must issue or deny a certificate of appealability when it enters a final order adverse to the petitioner. Rule 11(a) of the Rules Governing Section 2254 Cases. Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the Court of Appeals from the final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A certificate of appealability may issue only if the applicant makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El, 537 U.S. at 336, quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000). A certificate should issue if the petitioner shows that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in any procedural ruling. Slack, 529 U.S. at 483-84.

Here, it appears that reasonable jurists could debate whether the petition should have been resolved in a different manner. This Court disagrees with the recommendation of the magistrate judge, and concludes that Petitioner's guilty finding and resulting loss of good time credits were based on "some evidence" as required by the Supreme Court's holding in Hill, 472 U.S. at 455. Although the Court believes Petitioner is unlikely to succeed on appeal, it acknowledges that the merits of this claim for relief are at least debatable. Given this conclusion, the Court issues a certificate of appealability on the question of whether "some evidence" supports the outcome of the prison disciplinary proceedings at issue. See Miller-El, 537 U.S. at 338.


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