Opinion
CV 21-01040 PHX MTL (CDB)
11-30-2021
John Leo Davis, Petitioner, v. David Shinn, Attorney General of the State of Arizona, Respondents.
TO THE HONORABLE MICHAEL T. LIBURDI, J.:
REPORT AND RECOMMENDATION
Camille D. Bibles, United States Magistrate Judge.
Petitioner John Davis, proceeding pro se, challenges a prison disciplinary hearing, pursuant to 28 U.S.C. § 2254. Respondents answered the petition on August 18, 2021 (ECF No. 6), and Davis has failed to timely file a reply.
I. Background
On or about June 8, 2021, at the conclusion of a prison disciplinary hearing, Davis was found guilty of refusing to house at his designated housing unit, a class 25B offense of Resisting or Disobeying a Verbal or Written Order. (ECF No. 1 at 16-17; ECF No. 6-1 at 3, 5-7, 17). As a result of this disciplinary conviction, Davis was placed in a parole class for 30 days where he was unable to earn release credits to reduce his sentence. (ECF No. 6-1 at 5). Davis administratively appealed his disciplinary conviction to the Director's level, the highest and final level of the Arizona Department of Corrections' administrative grievance-appeal system. (ECF No. 1 at 7; ECF No. 6-1 at 9-10, 12, 14-15, 17). Davis asserted: the hearing was not timely as it was conducted 25 days after he received notice of the citation; that he was never provided a prison “rule book” alerting him to the fact that refusing to house could result in discipline; that he was denied his right to call witnesses during the hearing; and that there was insufficient evidence to support the hearing officer's finding. (ECF No. 6-1 at 9-10, 12, 14-15, 17). On July 7, 2020, the disciplinary conviction was upheld and the appeal denied. (ECF No. 6-1 at 17).
Respondents contend there is no record of Davis challenging this disciplinary conviction in an Arizona state court, by special-action petition or otherwise. Davis does not assert or present any evidence that he challenged this disciplinary conviction beyond his appeal to the Director of the Arizona Department of Corrections.
In his § 2254 petition Davis alleges the disciplinary proceeding was initiated in retaliation for filing grievances against correction officers. (ECF No. 1 at 16-17). Davis also asserts his disciplinary conviction violated his right to due process rights and his right to be free from retaliation for filing grievances. (ECF No. 1 at 5, 16-18).
II. Analysis
To challenge prison disciplinary proceedings resulting in the loss of release credits a state prisoner must seek federal habeas relief pursuant to 28 U.S.C. § 2254, which is the exclusive “vehicle” for a state prisoner to seek relief from prison disciplinary proceedings. See Nettles v. Grounds, 830 F.3d 922, 928 (9th Cir. 2016); Simpson v. Thomas, 528 F.3d 685, 692-93 (9th Cir. 2008). Additionally, before a federal court may grant habeas relief in this circumstance the prisoner must first exhaust remedies available in the state courts. See 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Simpson, 528 F.3d at 693. The federal court may not entertain a petition for writ of habeas corpus unless each and every issue has been exhausted. E.g., Rose v. Lundy, 455 U.S. 509, 521-22 (1982); Olvera v. Guirbino, 371 F.3d 569, 572 (9th Cir. 2004). When seeking habeas relief the burden is on the habeas petitioner to show that he has properly exhausted each claim. E.g., Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
To properly exhaust their § 2254 claims the prisoner must give the state courts a “fair opportunity” to act on his claims. Castillo v. McFadden, 370 F.3d 882 (9th Cir. 2004). In Arizona, state court review of an inmate disciplinary decision may be obtained by filing a petition for special action. See Creamer v. Ryan, 411 Fed.Appx. 985, 986 (9th Cir. 2011), citing Rose v. Arizona Dep't of Corr., 167 Ariz. 116, 120 (Ariz.Ct.App. 1991). Although Arizona's Administrative Review Act does not specifically authorize state judicial review of prison disciplinary proceedings, an inmate may seek such review by bringing a special action in trial court. Rose, 804 P.2d at 847-50. If the trial court denies relief, to fully and properly exhaust his § 2254 claims the inmate must appeal the trial court's ruling to the Arizona Court of Appeals. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999).
Davis did not raise the constitutional claims presented in his § 2254 petition to the state trial court or the Arizona Court of Appeals. Because Davis did not challenge his disciplinary proceedings by filing a special action in state court, his claims were not properly exhausted in the state courts prior to filing his federal habeas petition. See 28 U.S.C. § 2254(b); Creamer, 411 Fed.Appx. at 986. A corollary to the exhaustion requirement, the “procedural default doctrine, ” limits a petitioner from proceeding in § 2254 action when presentation of his claim to the state court is procedurally barred. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (“When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.”). A claim is technically exhausted, but implicitly procedurally defaulted, when a petitioner has not raised the claim in the state court and a return to state court to exhaust the claim would be futile in light of state procedural rules. See Boerckel, 526 U.S. at 848.
Arizona's one-year statute of limitations for claims against the government bar Davis from attempting to exhaust his § 2254 claims in the state courts at this time. See Ariz. Rev. Stat. Ann. § 12-821 (“All actions against any public entity or public employee shall be brought within one year after the cause of action accrues and not afterward.”); Flood Control Dist. of Maricopa Cnty. v. Gaines, 202 Ariz. 248, 252 (Ariz.Ct.App. 2002). Davis' administrative appeal of his disciplinary proceedings was complete July 7, 2020. (ECF No. 6-1 at 17). Accordingly, any special-action proceeding challenging this disciplinary proceeding was required to be filed by July 7, 2021. Because an attempt to exhaust his § 2254 claims in the state courts would not be timely, Davis' claims are procedurally barred. See, e.g., Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002).
If a petitioner has procedurally defaulted a claim in the state courts, he is not entitled to a review of the merits of the claim in a federal habeas action absent a showing of both cause and prejudice. E.g., Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000). The Court may also consider the merits of a procedurally defaulted claim if the failure to consider the merits of the claim will result in a fundamental miscarriage of justice. Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). “Cause” is a legitimate excuse for the petitioner's procedural default of the claim, i.e., an objective factor outside of his control, and “prejudice” is actual harm resulting from the alleged constitutional violation. Id. To establish prejudice, the petitioner must show that the alleged error “worked to his actual and substantial disadvantage, infecting his entire [proceeding] with error of constitutional dimensions.” Id. To satisfy the “fundamental miscarriage of justice” standard, a petitioner must establish by clear and convincing evidence that no reasonable fact-finder could have found him guilty of the charged offense. See Dretke v. Haley, 541 U.S. 386, 393 (2004); Wildman v. Johnson, 261 F.3d 832, 842-43 (9th Cir. 2001).
Davis has not filed a reply to the response to his petition, which response asserts his claims are procedurally defaulted. Accordingly, Davis fails to establish cause for or prejudice arising from his procedural default of his § 2254 claims.
Additionally, because Davis' claims are without merit, he fails to show a fundamental miscarriage of justice will occur absent consideration of his claims. A prisoner facing the loss of good time credits in a disciplinary proceeding has a due process right to: (1) advanced written notice of the disciplinary charges; (2) an opportunity to call witnesses and present documentary evidence on his behalf when consistent with the safety of the institution and the goals of corrections; and (3) a written statement of the evidence relied on by the decision-maker and the reasons for the disciplinary action. See Superintendent Mass. Corr. Inst. at Walpole v. Hill, 472 U.S. 445, 454 (1985), citing Wolff v. McDonnell, 418 U.S. 539, 563-565 (1974). In Wolff the Supreme Court clarified that a prisoner in disciplinary proceedings does not have a right of confrontation, to cross-examine witnesses, or a right to counsel. See 418 U.S. at 556.
Furthermore, if a prisoner is subject to losing good time credits as a result of a prison disciplinary action, all due process requires is that there be “some evidence” to support the disciplinary finding. Hill, 472 U.S. at 455-56. Davis does not assert in his petition that he did not commit the acts resulting in the disciplinary proceeding. (ECF No. 1 at 17). Davis fails to substantiate that any of the alleged constitutional violations resulted in prejudice during the disciplinary proceeding. Davis asserts his constitutional rights were violated because he was denied the opportunity to call witnesses, but there is no absolute, rather than qualified, constitutional right to call witnesses at a prison disciplinary hearing. See Hill, 472 U.S. at 454. Davis asserts the disciplinary hearing officer was not impartial and that the disciplinary ticket was false. (ECF No. 1 at 17). However, the disciplinary report states that Davis refused to house (ECF No. 6-1 at 3), and Davis does not dispute that he refused to house. And a disciplinary report alone is sufficient evidence to meet the “some evidence” standard established in Hill. See Hill, 472 U.S. at 456-57 (holding the statement of officer involved and his written report constitutes “some evidence” in prison disciplinary proceeding); McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999) (holding an officer's disciplinary report alone provides sufficient “some evidence” to support disciplinary decision); Hrbek v. Nix, 12 F.3d 777, 781 (8th Cir. 1993) (stating disciplinary actions may be taken based only on a guard's report, if found credible, even when there is substantial evidence to the contrary); Tafoya v. Ducharme, 120 F.3d 269, 1997 WL 409579, at *1 (9th Cir. 1997).
Davis also asserts his right to due process was violated because his hearing occurred 25 days after the ticket was served. (ECF No. 1 at 17). However, a prisoner's right to due process requires only that the prisoner be given 24 hours' notice of the hearing. Wolff, 418 U.S. at 564 (“At least a brief period of time after the notice, no less than 24 hours, should be allowed to the inmate to prepare for the appearance before the [disciplinary hearing]”). To the extent Davis asserts his right to due process was violated because the disciplinary hearing did not comport with prison regulations, any violations of state laws or regulations is not equivalent to a violation of a prisoner's right to procedural due process. The relevant inquiry is not “whether the prison complied with its own regulations, ” but whether Davis was “provided with process sufficient to meet the Wolff standard.” Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995).
III. Conclusion
Davis failed to exhaust his § 2254 claims in the state courts and is now procedurally barred from doing so, accordingly he has procedurally defaulted his § 2254 claims. Davis fails to establish cause for, or prejudice arising from his procedural default of his claims. No. fundamental miscarriage of justice will occur absent the Court's consideration of the merits of Davis' claims.
Accordingly, IT IS RECOMMENDED that the petition seeking a federal writ of habeas corpus at ECF No. 1 be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts requires the district court to “issue or a deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. The undersigned recommends that, should the Report and Recommendation be adopted and, should Davis seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.