United States District Court, E.D. California
FINDINGS & RECOMMENDATIONS
KENDALL J. NEAWMAN UNITED STATES MAGISTRATE JUDGE
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 2011 prison disciplinary
conviction for distributing a controlled substance in
violation of California Code of Regulations Title 15, §
3016(d). Petitioner was assessed a 180 days credit loss.
raises the following claims challenging the prison
disciplinary conviction: 1) denial of right to call
witnesses; 2) the hearing officer was biased; 3) denial of
right to an investigative employee; 4) the hearing officer
wrongly denied petitioner’s request to postpone the
hearing; and 5) the hearing officer wrongly permitted staff
witnesses to remain in the hearing room.
carefully considering the record, the undersigned recommends
that the petition be denied.
Standards for a Writ of Habeas Corpus
the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), 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).
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;
(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).
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)).
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).
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)).
a state court rejects a federal claim without expressly
addressing that claim, a federal habeas court must presume
that the federal claim was adjudicated on the merits - but
that presumption can in some limited circumstances be
rebutted.” Johnson v. Williams, 133 S.Ct.
1088, 1096 (Feb. 20, 2013). “When the evidence leads
very clearly to the conclusion that a federal claim was
inadvertently overlooked in state court, § 2254(d)
entitles the prisoner to” de novo review of the claim.
Id., at 1097.
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.
petitioner does not raise a claim alleging insufficient
evidence to support his disciplinary conviction, the
undersigned herein sets forth the relevant portions of the
disciplinary report to put petitioner’s claims in
disciplinary report contains the following statement by
reporting Officer Rhoads:
On Saturday, August 14, 2010, at approximately 1840 hours,
while performing my duties as a Main yard Officer #3, post
#361161, I was standing on the Main Yard when I observed
Inmate COLEMAN, S. (BLA), followed and escorted by Officer S.
Beem. I witnessed an unidentified Black inmate approach
Inmate COLEMAN from the adjacent tables and shake hands with
him. After inmate COLEMAN shook hands, I noticed Inmate
COLEMAN still had a clenched fist, which based on that
observation led me to believe that Inmate COLEMAN was holding
something inside his clenched fist. Inmate COLEMAN put both
of his hands back on the garbage container and continued
pushing the cart along the basketball court towards the yard
shack. I approached Inmate COLEMAN from my position on the
other side of the basketball court, and when I was within
speaking distance I ordered Inmate COLEMAN to stop and show
me his hands. Inmate COLEMAN was reluctant in doing so and
acted as if he did not hear my order. I ordered Inmate
COLEMAN to step away from the cart and place his hands along
the railing of the yard shack where I placed Inmate COLEMAN
in hand cuffs. I asked Officer Beem to search the cart that
Inmate COLEMAN was pushing. I told Officer Beem I believed
inmate COLEMAN had possibly dropped something into the cart
that he had earlier in his hand and was attempting to
conceal. I took Inmate COLEMAN inside of the yard shack where
I performed a clothed body search on him with negative
results. Officer E. Mejia took Inmate COLEMAN and escorted
him from the yard shack to the FSP Custody Complex. After
conducting the search of the cart Officer Beem entered the
yard shack with what appeared to be a small ball-shaped
package of latex material from the package. I discovered a
second layer of latex material. Then after removing the
second layer of latex material from the package, I discovered
a third inner layer of latex material. After removing the
third layer of latex material, I discovered the package
contained five (5) individually wrapped bindles of an unknown
white, crystal-like substance. Officer Beem took the five (5)
individual bindles, latex packing material and took it to the
FSP Custody Complex to be processed into evidence. That
concluded my involvement in this incident.
(ECF No 12-2 at 2.)
disciplinary report states that the bindles tested positive
for methamphetamine. (Id. at 1.)
disciplinary report also contains the responses by Officers
Beem and Rhoads to questions submitted by petitioner, asked
on his behalf by Senior Hearing Officer (“SHO”)
Darnell, who conducted the disciplinary hearing. The
questions asked of Officer Beem are set forth herein:
Q1) Did you observe contraband on Inmate COLEMAN?
Q2) Did you observe Inmate COLEMAN drop anything in the trash
Q3) What did Officer Rhoads tell you after he handcuffed
A3) He said Inmate COLEMAN threw something over the edge of
the cart, that’s where I found the drugs.
Q4) When did Rhoads ask you to search the trash cart?
A4) Simultaneously to the search of Inmate COLEMAN.
Q5) When Officer asked you to search the trash cart, were his
exact words, “I think he put something in his mouth.
I’m not sure, check the garbage cart on the top, he
might have dropped something.” A5) The Senior Hearing
Officer determined that this question is a “Leading
Question, ” therefore, he did not present this question
to Officer Beem.
Q6) Where did you find the contraband in the cart?
A6) On garbage bag at the bottom of the cart.
Q7) Did you observe Inmate COLEMAN shake anyone’s hand?
Q8) Did you see Inmate COLEMAN speak to anyone?
WRIT OF HABEAS CORPUS A.D. TESTIFICANDUM
To: Warden, CHCF, P. O. Box 32050, Stockton, California
Q9) Can you repeat any conversation the two inmates might
A9) The Senior Hearing Officer notes that the answer to this
question was Question 8. Officer Beem did not see Inmate
COLEMAN talk to anyone.
Q10) Did you know who initiated the contact with each other,
as who called out to who or who walked over to who?
A10) The Senior Hearing Officer notes that the answer to this
question was answer[ed] in Question 8. Officer Beem did not
see Inmate COLEMAN talk to anyone.
Q11) Once you found the contraband did you stop searching the
A11) I searched the whole cart and found no other contraband.
I found the small bag of dope and figured that was what was
(Id. at 4.)
questions asked of Officer Rhoads are set forth herein:
Q1) Is your report accurate?
Q2) Did you see anything in the hands of either inmate before
they shook hands?
A2) I watched Inmate COLEMAN push the cart without a clenched
fist. After the handshake Inmate COLEMAN had a clenched fist.
Q3) Did you follow the unidentified inmate after the hand
A3) No, my attention was on Inmate COLEMAN.
Q4) Did you or any other Officer make contact with the
A4) No, I did not. I am not aware of any other officer.
Q5) Was the unidentified inmate ever searched?
A5) Not to my knowledge, just Inmate COLEMAN.
Q6) In the report you indicated that you believe the
unidentified black inmate received or delivered something to
Inmate COLEMAN. Why wasn’t the unidentified inmate
searched for definitive evidence?
A6) The Senior Hearing Officer determined that this is a
leading question, therefore, the answer would be a
speculation on Officer Rhoads part if he answer.
Q7) Is there any evidence that the unidentified inmate gave
Inmate COLEMAN any contraband?
A7) I saw the physical contact occur where the inmates’
hands made contact and Inmate COLEMAN left with a closed
Q8) Is there evidence that Inmate COLEMAN gave to the
unidentified man anything?
Q9) Is the part of your report that says “Inmate
COLEMAN passed or received what appeared to be contraband,
” just speculation unsupported by evidence?
A9) The Senior Hearing Officer deemed that this question was