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Emelito Exmundo v. R. H.

March 2, 2012

EMELITO EXMUNDO,
PETITIONER,
v.
R. H., TRIMBLE, ACTING WARDEN, RESPONDENT.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND (Doc. 1) FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY FINDINGS AND RECOMMENDATIONS TO DIRECT THE CLERK TO CLOSE THE CASE AND SEND A BLANK CIVIL RIGHTS COMPLAINT FORM TO PETITIONER OBJECTIONS DEADLINE: THIRTY (30) DAYS

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the petition, which was filed on January 31, 2012.

I. Screening the Petition

Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).

A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

Here, Petitioner alleges that he is an inmate of the Pleasant Valley State Prison (PVSP) located at Coalinga, California. Petitioner complains that he lost thirty (30) days of credit as a result of a disciplinary finding by prison authorities that he had possessed an unauthorized medication. Petitioner raises the following claims: 1) the finding was based on evidence obtained by an unconstitutional search and seizure in the form of a cell search undertaken pursuant to an allegation made in retaliation for Petitioner's refusal to withdraw a grievance he had filed, and therefore in violation of Petitioner's First Amendment rights; 2) the finding was based on a failure to provide Petitioner with evidence that he had requested, including a) a rules violation report (RVR) concerning Petitioner's cellmate, inmate Leon, who Petitioner believed had admitted to ownership or responsibility for the unauthorized medication in the cell, b) the number of a previous grievance filed by Petitioner, which would have supported Petitioner's claim of retaliation, and c) a laboratory test to identify the medication, which Petitioner contends was required by specified California regulations, and without which a prison pharmacist's identification of the medication was insufficient; 3) Petitioner failed to receive notice twenty-four hours in advance of the hearing with respect to a new, lesser violation of possession of an unauthorized medication that the hearing officer ultimately found that Petitioner had committed, which deprived Petitioner of his right to prepare a defense to the new charge; and 4) the hearing officer was biased because he predetermined the issue of Petitioner's guilt as demonstrated by his failure to ask Petitioner how he pled or to ask him anything about the evidence, and his announcement that he was changing the charge and finding Petitioner guilty. (Pet. 4-5, 7.)

II. Retaliatory and Unreasonable Cell Search

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam).

Title 28 U.S.C. § 2254 provides in pertinent part:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.

Clearly established federal law refers to the holdings, as opposed to the dicta, of the decisions of the Supreme Court as of the time of the relevant state court decision. Cullen v. Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362, 412 (2000). It is thus the governing legal principle or principles set forth by the Supreme Court at the pertinent time. Lockyer v. Andrade, 538 U.S. 71-72.

To the extent that Petitioner's claim concerning the disciplinary adjudication and resulting credit loss rests on an allegedly unreasonable cell search and seizure of cell contents in violation of the Fourth and Fourteenth Amendments, it appears that Petitioner is actually challenging the evidence relied upon at the prison disciplinary hearing, which included reports concerning medications which were found in the search of the cell.

The Court is aware of no clearly established federal law that would require the application of the exclusionary rule to prison disciplinary proceedings. Instead, the Supreme Court has declined to extend the exclusionary rule to proceedings other than criminal trial proceedings. In Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357, 363 (1998), the Court held that the exclusionary rule does not apply to state parole revocation proceedings, and the Court emphasized its previous decisions to decline to apply the exclusionary rule to grand jury proceedings, civil tax proceedings, and civil deportation proceedings. The Court emphasized that the exclusionary rule was incompatible with the traditionally flexible, administrative procedures of parole revocation, which affect only a conditional liberty and do not require the full panoply of due process protections applicable to a criminal trial; further, the states have wide latitude under the Constitution to structure parole revocation proceedings, which usually involve informal, administrative procedures conducted by non-judicial staff, and which are not governed by the traditional rules of evidence. Id. at 364-67.

The Court's reasoning in Scott applies with even greater force in the context of prison disciplinary proceedings, in which it is acknowledged that prison authorities have special expertise and broad discretion to carry out strong state interests in institutional control and safety, and due process procedural protections are limited to advance written notice of the claimed violation, a right to call witnesses and present documentary evidence where it would not be unduly hazardous to institutional safety or correctional goals, and a written statement of the finder of fact as to the evidence relied upon and the reasons for disciplinary action taken. Wolff v. McDonnell, 418 U.S. 539, 563-64 (1974). Likewise, prison disciplinary procedures are relatively informal, prison staff serve as adjudicators, and the formal rules of evidence do not apply; indeed, the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. Superintendent v. Hill, 472 U.S. 445, 454 (1985). A court reviewing a prison disciplinary hearing is not required to examine the entire record, independently assess the credibility of witnesses, or weigh the evidence; instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.

Superintendent v. Hill, 472 U.S. at 455-56.

Here, the disciplinary finding that Petitioner possessed restricted medications was supported by some evidence in the form of 1) the reporting employee's report of the search and the discovery of the medications, which included Petitioner's admission that the drugs were his, and 2) the pharmacist's drug report. (Pet. 40, 45-46.)

Further, as the following analysis will show, Petitioner was not deprived of other procedural due process of law.

In addition to the absence of an evidentiary remedy for Petitioner's claim, it is established that prisoners' constitutional rights are subject to substantial limitations and restrictions in order to allow prison officials to achieve legitimate correctional goals and maintain institutional security. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348-49 (1987); Bell v. Wolfish, 441 U.S. 520, 545-47 (1979). Prisoners have no reasonable expectation of privacy in their prison cells, and the Fourth Amendment's prohibition of unreasonable searches does not apply where prison officials conduct random or routine searches of an inmate's cell. Hudson v. Palmer, 468 U.S. 517, 529-30. Prisoners are protected, however, against searches that are calculated for the purpose of harassment unrelated to prison needs. Hudson v. Palmer, 468 U.S. at 530.

Notwithstanding the language in Hudson, in this circuit it has been held that the Fourth Amendment right of people to be secure against unreasonable searches and seizures "extends to incarcerated prisoners; however, the reasonableness of a particular search is determined by reference to the prison context." Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988). In Michenfelder, it was concluded that strip searches were reasonably related to legitimate penological interests and were reasonable in light of the balancing test set forth by the Supreme Court in Bell v. Wolfish, 441 U.S. 520 (1979). Michenfelder, 860 F.2d at 333.

Here, Correctional Officer Gallegos was conducting a cell search in an apparently routine manner and found the pills in a desk. Petitioner alleges that his past complaints against other officers and medical personnel in the prison were the genesis of prison authorities' decision to search his cell. However, the focus of this habeas corpus proceeding is not Petitioner's conditions of confinement, but rather the imposition of a disciplinary sanction of loss of time credits, a matter affecting the legality or duration of Petitioner's confinement. In this context, the significant factors are the searching officers' use of reasonable means to discover restricted medications in Petitioner's cell and Petitioner's admission that the drugs were his. (Pet. at 40.) All the documentation of the search submitted by Petitioner reflects that the search proceeded in a reasonable manner, and it revealed that present in the cell were medications that Petitioner admitted he possessed and that prison authorities in their discretion judged to be antithetical to the order and safety of the ...


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