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Hardney v. Lizarraga

United States District Court, N.D. California

July 21, 2014

JOHN HARDNEY, Petitioner,
JOE A. LIZARRAGA, Warden, Respondent.


JON S. TIGAR, District Judge.

John Hardney, a California prisoner, filed this pro se action for writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge a disciplinary decision of Pelican Bay State Prison (PBSP) that resulted in a time credit forfeiture. Respondent was ordered to show cause why the petition should not be granted. Respondent has filed an answer, and petitioner has filed a traverse. For the reasons set forth below, the petition is denied.[1]


On December 2, 2010, PBSP Correctional Officer R. Serna issued a Rules Violation Report (RVR) charging petitioner with "Indecent Exposure, " a violation of Cal. Code Regs., title 15, § 3007. Dkt. #1 at 14. According to the RVR, Officer Serna was performing her duties as Unit B-2 Concrete Yard Officer when she observed petitioner sitting on his bunk with his legs spread apart and his boxers pulled down, "vigorously stroking his erect penis with both hands (masturbating)." Id . In her subsequent investigative report, Officer Serna stated that she could clearly see petitioner stroking his erect penis while looking directly at her with his bright light on. Id. at 16.

Petitioner requested to postpone his hearing pending resolution of possible criminal prosecution for indecent exposure under California Penal Code section 324. Id. at 15. After receiving notice that the District Attorney had declined to prosecute, a disciplinary hearing was held at PBSP on January 6, 2011. Id. at 15-18. Prior to the hearing, petitioner was provided with notice of the hearing and of the charges against him. Id . Petitioner requested Dr. Tomar as a witness, to give the anticipated testimony that petitioner's medication stops him from getting an erection. Id. at 15. The request for a witness was granted. Id.

At the hearing, petitioner pled not guilty and claimed that he was applying lotion to his groin area, and not masturbating. Id. at 16. Petitioner also claimed that his medication prevented him from obtaining an erection. Id . Petitioner's witness, Dr. Tomar, affirmed that petitioner was on the drug Effexor but denied that Effexor prevents patients from having an erection in all cases. Id . Dr. Tomar testified that this was only a possible side effect and did not always happen. Id . Based upon the evidence presented, including the RVR, the investigative report prepared by Officer Serna, and the testimony of Dr. Tomar, petitioner was found guilty and assessed a forfeiture of 90 days of time credits. Id. at 16. Petitioner was also referred for review for prohibition against all future family visits pursuant to Cal. Code Regs., title 15, § 3177(b)(1)(A). Id.

Petitioner filed unsuccessful inmate appeals about the disciplinary decision. See Dkt. #1 at 12. He then filed a habeas petition in the Del Norte County Superior Court claiming there was insufficient evidence to support the disciplinary findings. Dkt. #1 at 20-21. The petition was denied on the merits. Id . He appealed that decision to the California Court of Appeal and the California Supreme Court, and both appeals were summarily denied. Dkt. #7 at 40, 63. This federal petition followed.[2]


A. Standard of Review

This Court may entertain a petition for a 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); Rose v. Hodges , 423 U.S. 19, 21 (1975).

A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court 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); Williams v. Taylor , 529 U.S. 362, 412-13 (2000). Additionally, habeas relief is warranted only if the constitutional error at issue had a "substantial and injurious effect or influence in determining the jury's verdict." Penry v. Johnson , 532 U.S. 782, 795 (2001) (internal citation omitted).

A state court decision is "contrary to" clearly established Supreme Court precedent if it "applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, " or if it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [its] precedent." Williams , 529 U.S. at 405-06. "Under the unreasonable application' clause, 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." Id. 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 411.

Section 2254(d)(1) restricts the source of clearly established law to the Supreme Court's jurisprudence. "[C]learly established Federal law, as determined by the Supreme Court of the United States" refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams , 529 U.S. at 412. "A federal court may not overrule a state court for simply holding a view different from its ...

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