Summary
holding that prison officials were neither required to show an inmate photographs of all black officers working on the prison yard, nor to review the daily reports of all officers working on the prison yard
Summary of this case from Shuck v. BledsoeOpinion
No. C 02-0109 MMC (PR)
October 2, 2002
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner, currently incarcerated at High Desert State Prison, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the loss of time credits in connection with disciplinary taken while he was housed at Salinas Valley State Prison ("SVSP"). After an initial review, the Court found that a portion of petitioner's first claim was cognizable and ordered respondent to show cause why the petition should not be granted. Respondent has filed a response and petitioner has filed a traverse.
BACKGROUND
On July 15, 1999, pursuant to a disciplinary hearing held at SVSP, petitioner was found to have violated prison rules prohibiting possession of a weapon. Petitioner was deprived of 360 days of good time credits. Petitioner filed unsuccessful administrative appeals of this decision, the last of which was rejected as untimely. Petitioner also challenged the disciplinary action in unsuccessful habeas petitions filed in the Superior Court and in the Supreme Court of California.
DISCUSSION
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). If a constitutional violation has resulted in the loss of time credits, such violation affects the duration of a sentence, and the violation may be remedied by way of a petition for a writ of habeas corpus. Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990)
Petitioner's remaining cognizable claim is that he was deprived of due process at his disciplinary hearing. Specifically, petitioner alleges that prison officials prevented him from calling a favorable witness by failing to provide him with photographs that would have allowed him to identify the witness, and by failing to postpone the hearing until the witness could be found. Where, as here, the prisoner has been deprived of a significant number of good time credits, his right to due process is implicated. See generally Sandin v. Conner, 515 U.S. 472, 477-87 (1995). In addition to requiring "some evidence" to support the discipline, see Burnsworth v. Gunderson, 179 F.3d 771, 773-74 (9th Cir. 1999) (citing standard of Superintendent v. Hill, 472 U.S. 445, 457 (1985)), due process requires that prisoners be afforded the procedural protections mandated by Wolff v. McDonnell, 418 U.S. 539, 556 (1974), and its progeny. See Walker v. Sumner, 14 F.3d 1415, 1419-20 (9th Cir. 1994). Among the five procedures identified by Wolff is that "the inmate facing disciplinary proceedings be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." Id. at 566.
Here, prior to the disciplinary hearing, an investigator, T. Acosta, was assigned as a "fact finder" in connection with the charges. Acosta interviewed Correctional Officer Bailey and petitioner. Bailey stated that he found two weapons in petitioner's cell, and petitioner stated that the weapons were not his. In response to petitioner's request, Acosta looked for a witness described by petitioner as a fifty-year-old black correctional officer named Aquino. Acosta was unable to find this witness "due to lack of information," and, after checking the "master roster," he discovered that there was no SVSP employee by that name or description.
Petitioner contends that officials did not do enough to try to locate the witness. Specifically, he argues that officials could have shown him photographs of all the black officers working on his prison yard and he could have picked out the witness; alternatively, officials could have identified the witness by reviewing the daily reports of correctional officers on the prison yard. Under Wolff, due process requires that prison officials allow a prisoner to call witnesses, which petitioner admits he was allowed to do. Neither Wolff nor any other decision of which this Court is aware, however, holds that due process also requires that prison officials locate those witnesses, which Acosta, nevertheless, attempted to do in this case, let alone that they take all the steps that petitioner suggests. Thus, even if it were possible, as petitioner contends, for the officials here to locate the subject witness, petitioner does not have a constitutional right to require the officials to do so.
Moreover, even if the failure to take the measures suggested by petitioner violated his right to due process, there is no indication that such error caused petitioner any prejudice. A habeas petitioner is not entitled to relief unless the record demonstrates that the constitutional violation had a substantial and injurious effect or influence in determining the result. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993);Payton v. Woodford, 299 F.3d 815, 827-28 (9th Cir. 2002) (en banc). Petitioner does not describe, and there is nothing in the record to indicate, what the witness knew or what testimony he would have offered if he had been located. There is no indication in the record that if the witness had testified, such testimony would have helped petitioner. In sum, even if the failure to locate the witness violated petitioner's right to due process, the record does not demonstrate that the absence of such witness had a substantial and injurious effect on the verdict, and, accordingly, habeas relief is not available.
CONCLUSION
In light of the foregoing, the petition for a writ of habeas corpus is DENIED. All pending motions are terminated and the clerk shall close the file.
IT IS SO ORDERED.