Opinion
No. C-01-4331 MMC (PR)
October 29, 2003
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a California prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After an initial review, the Court dismissed two of petitioner's claims for failure to state a cognizable basis for federal habeas relief, and found that the other five were cognizable. Respondent was ordered to show cause why the petition should not be granted on the basis of petitioner's cognizable claims. Respondent has filed an answer, along with a memorandum and exhibits, denying the petition. Petitioner has filed a traverse.
FACTUAL AND PROCEDURAL BACKGROUND
TWs background is derived from the opinion of the California Court of Appeal, lodged herewith as Respondent's Exhibit 3 (hereinafter "Slip Op."). Where, as here, the Supreme Court of California issued a summary opinion, this Court reviews the decision of the California Court of Appeal, as that is the last state court to address petitioner's claims in a reasoned decision. See LaJoie v. Thompson, 217 F.3d 663, 669 n. 7 (9th Cir. 2000); see also 28 U.S.C. § 2254(e)(1) (requiring district court to presume correct state court's factual findings unless petitioner rebuts presumption of correctness by clear and convincing evidence).
On September 3, 1998, a prison correctional officer found a total of one gram of marijuana in petitioner's pocket and his cell. The Monterey County District Attorney charged petitioner with possession of drugs and two prior convictions. Petitioner represented himself in the trial court, and filed a motion to dismiss the charges on grounds of "former jeopardy." Petitioner argued that a "quasi-judicial administrative hearing" took place in prison, at which he was found guilty and received a number of sanctions, including the extension of his prison term and other restraints on his liberty. The trial court rejected petitioner's motion to dismiss, as well as his efforts to plead "once in former jeopardy." At a court trial, the parties agreed that the matter would be submitted on the prison incident reports, and the prosecution dismissed the allegations of prior convictions. The court found petitioner guilty on the drug possession charge and sentenced him to two years in prison, to be served consecutively to his current sentence.
The California Court of Appeal affirmed, and the Supreme Court of California denied the petition for direct review in a one-line opinion. Petitioner also filed a habeas petition in the California Court of Appeal and two in the California Supreme Court, all of which were summarily denied.
DISCUSSION
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, 120 S.Ct. 1495, 1523 (2000). 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, 121 So. Ct. 1910, 1920 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).
B. Legal Claims
1. Double Jeopardy
Petitioner claims that his conviction violates the Double Jeopardy Clause because he had already been found guilty and punished for the same offense in prison disciplinary proceedings. The Double Jeopardy Clause of the Fifth Amendment guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb". U.S. Const, amend. V. In Benton v. Maryland, 395 U.S. 784 (1969), its protections were held applicable to the states through the Fourteenth Amendment. The guarantee against double jeopardy protects against (1) a second prosecution for the same offense after acquittal or conviction and (2) multiple punishments for the same offense. See Witte v. United States, 515 U.S. 389, 395-96 (1995). The Double Jeopardy Clause does not preclude criminal prosecution, such as the prosecution faced by petitioner, for conduct for which prison authorities have already imposed administrative discipline, because a prison disciplinary proceeding is not a criminal trial. See United States v. Brown, 59 F.3d 102, 103-04 (9th Cir. 1995):Garrity v. Fiedler, 41 F.3d 1150, 1152 (7th Cir. 1994): United States v. Newby, 11 F.3d n 1143, 1144 (3d Cir. 1993).
The protection against multiple punishment afforded by the Double Jeopardy Clause likewise is not implicated by prior prison disciplinary proceedings because: (1) even if prison disciplinary sanctions are "punishment," they generally are not distinct from the punishment for the conviction for which petitioner is in custody and (2) the sanctions are not punishment for purposes of double jeopardy because they serve the governmental remedial goals of maintaining institutional order and encouraging compliance with prison rules. See United States v. Brown, 59 F.3d 102, 104-05 (9th Cir. 1995). Petitioner argues that the sanctions he received from prison officials were so harsh as to constitute punishment. There may be a "rare" case in which a remedial sanction is so harsh as to constitute punishment and implicate the Double Jeopardy Clause. Id. at 105-06. Here, petitioner states that the sanctions he received in connection with his discipline are the revocation of 130 days of good time credits, temporary suspension of visits, required drug therapy and testing once a month, and the confiscation of certain personal property (a television set, jacket, perfume and typewriter).
In his petition, petitioner states that officials seized this property during the search of his cell. Consequently, this seizure does not appear to have been part of the discipline meted out at the disciplinary hearing. Nevertheless, the Court assumes for purposes of this discussion that the confiscation of this property was part of the discipline petitioner received.
In Brown, without delineating the precise contours of what constitutes the "rare" case of prison discipline rising to the level of "punishment" for purposes of the Double Jeopardy Clause, the court concluded it was not present where the prisoner lost 41 days of good time credits and was transferred to a higher security prison. See id. Petitioner's sanctions are not significantly greater than those imposed in Brown. While petitioner lost approximately three months more of good time credits, he was not moved to a higher security prison, with all the loss of privileges that entails. In any event, petitioner's sanctions were far less severe than those the court in Newby found were neither punitive nor sufficient to raise double jeopardy concerns. See Newby, 11 F.3d at 1145-46 (finding forfeiture of 1000 days good time credits and transfer to another institution did not constitute punishment for purposes of Double Jeopardy Clause).
Accordingly, petitioner's prison discipline was not so severe as to constitute the "rare" case in which the Double Jeopardy Clause barred his subsequent criminal prosecution. 2. Medical Necessity Defense
At trial, petitioner sought to present a defense that his possession of marijuana was a "medical necessity" to alleviate the pain of glaucoma. The prosecution moved in limine to exclude evidence of such defense, and at a hearing on the motion, the trial court considered testimony from petitioner's optometrist and reviewed petitioner's medical records. Based upon this evidence, the trial court concluded that petitioner could not establish a medical necessity defense and granted the prosecution's motion.
The Sixth Amendment affords an accused in a criminal trial the right to present a defense. Chambers v. Mississippi, 410 U.S. 284. 294 (1973). The Supreme Court has made clear that the erroneous exclusion of critical, corroborative defense evidence may violate the Sixth Amendment right to present a defense, as well as the due process right to a fair trial. DePetris v. Kuykendall, 239 F.3d 1057, 1062 (9th Cir. 2001) (citing Chambers, 410 U.S. at 294, and Washington v. Texas, 388 U.S. 14, 18-19 (1967)). To warrant habeas relief on such claim, the exclusion of the evidence must have resulted in prejudice as defined in Brecht v. Abrahamson, 507 U.S. 619 (1993). Specifically, the record must indicate a reasonable likelihood that exclusion of the defense evidence had a substantial and injurious effect on the jury's verdict. Dillard v. Roe, 244 F.3d 758, 767 n. 7 (9th Cir. 2001) (quoting Brecht, 507 U.S. at 623).
Here, petitioner sought to introduce evidence under California Health and Safety Code § 11362.5, which provides a defense to the possession of marijuana based on medical necessity. The California Court of Appeal held that this statute does not apply to charges under California Penal Code § 4573.6 (possession of marijuana while in prison), the offense with which petitioner was charged. The Court of Appeal's determination of state law is binding on this Court. See Hicks v. Feiock, 485 U.S. 624, 629, 630 n. 3 (1988) (holding state law determinations by state courts binding on federal court conducting habeas review). As California's statutory defense of medical necessity was inapplicable to the charges against petitioner, the exclusion of evidence in support of such defense did not violate petitioner's constitutional right to present a defense.
California, however, does recognize a common law defense of medical necessity, which the Court of Appeal assumed was available to petitioner. The elements of this defense, as explained by the Court of Appeal, are as follows:
1. The act charged as criminal must have been done to prevent a significant evil;
2. There must have been no adequate alternative to the commission of the act;
3. The harm caused by the act must not be disproportionate to the harm avoided;
4. The accused must entertain a good-faith belief that his act was necessary to prevent the greater harm;
5. Such belief must be objectively reasonable under all the circumstances; and
6. The accused must not have substantially contributed to the creation of the emergency.
Slip Op. at 4-5 (citations omitted).
Petitioner's optometrist, Dr. Sammet, testified that while he suspected glaucoma, based on petitioner's family history and "visual field," petitioner had not been diagnosed with the disease and was "not a glaucoma patient." RT at 1783. Rather, petitioner was being sent for more tests.Id. Dr. Sammet testified that the headaches petitioner attributed to glaucoma were actually caused by petitioner's need for stronger glasses. RT at 1782. He explained that petitioner's eye pressure was normal, and that the type of headaches associated with glaucoma are so severe that a patient "can't even stand up." RT at 1782-83. In Dr. Sammet's opinion, "Obviously you [petitioner] weren't there." Id. Dr. Sammet further testified that he has not recommended the use of marijuana for any inmate, including petitioner, and that petitioner had been prescribed pain medication for his headaches. RT at 1780-83.
Under such circumstances, petitioner did not establish a reasonable basis for a medical necessity defense under common law. There was no evidence that Dr. Sammet or any other medical professional recommended the use of marijuana to treat petitioner's condition. The evidence demonstrates nothing more than petitioner's own opinion that he needed marijuana. As the California Court of Appeal reasonably concluded, there was no evidence to establish two of the elements of California's medical necessity defense, specifically, "that there was no adequate alternative, or that any belief in the asserted necessity was reasonable." Slip Op. at 5. Consequently, even if the trial court had allowed petitioner to present evidence pertaining to petitioner's asserted medical necessity for marijuana, petitioner would not have been able to establish the defense.
Accordingly, the trial court's exclusion of the medical necessity defense did not have a substantial and injurious effect on the verdict, and petitioner was not prejudiced such as to warrant habeas relief on this claim.
3. Warden's Testimony
Petitioner claims that when the prison warden ("Warden") failed to appear at his trial to testify in response to a subpoena, petitioner was deprived of his Sixth Amendment rights to compulsory process and to confrontation. The Compulsory Process Clause of the Sixth Amendment preserves the right of a defendant in a criminal trial to use the court's process to obtain favorable witnesses, Washington v. Texas, 388 U.S. 14, 19 (1967), and the Confrontation Clause of the Sixth Amendment provides that in criminal cases the accused has the right to "be confronted with the witnesses against him," U.S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400, 403 (1965).
The Compulsory Process Clause, however, affords petitioner only the right to testimony that is both material and favorable to the defense.See United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 873 (1982);see, e.g., United States v. Bowman, 215 F.3d 951, 962-63 (9th Cir. 2000) (holding no Sixth Amendment violation where excluded testimony not critical to defense; finding testimony sought would not have exculpated defendant if believed); Cacoperdo v. Demosthenes, 37 F.3d 504, 509 (9th Cir. 1994) (finding no Sixth Amendment violation where defendant denied access to adverse witnesses). Further, to obtain habeas relief, petitioner must show that the violation of the Compulsory Process Clause had a substantial and injurious effect on the jury's verdict. See LaGrand v. Stewart, 133 F.3d 1253, 1267 (9th Cir. 1998) (denying habeas relief where no prejudice under standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).
Here, petitioner does not describe the testimony the Warden would have provided. Rather, he states generally that the Warden would have helped him present a defense under Health and Safety Code § 11362.5. As explained above, however, this defense was not available to petitioner, rendering any such testimony by the Warden irrelevant. Petitioner also states that the Warden's testimony was necessary to "produce evidence of authorization" for his possession of marijuana. Again, petitioner fails to set forth the proposed testimony, or to describe the form or nature of any authorization. Indeed, the record indicates there was no such authorization, as the Warden herself mailed the Incident Report documenting petitioner's marijuana possession to the Monterey County District Attorney for criminal prosecution. See Respt. Exh. 1B at 3. Moreover, in his petition, petitioner states that prison officials imposed sanctions on him for possessing marijuana in violation of prison rules. In light of the uncontradicted evidence in the record that the Warden and other prison officials sought to punish petitioner for his possession of marijuana, there is no indication that the Warden would have provided testimony favorable to petitioner at trial. Consequently, the Warden's presence at petitioner's trial would not have benefitted petitioner, and, accordingly, her absence did not have a substantial and injurious effect on the verdict.
Similarly, petitioner has not established a violation of his rights under the Confrontation Clause. Petitioner argues that the Confrontation Clause required the Warden's presence because she was his "statutory accuser." Petitioner is incorrect in this assertion. Section 4573.6 of the California Penal Code prohibits the possession of marijuana that is not authorized "by the rules of the Department of Corrections, rules of the prison . . . or by the specific authorization of the warden, superintendent, jailer, or other person in charge of the prison." As the statute is violated not only in the absence of authorization by the Warden, but also by prison and Department of Corrections rules, the Warden herself need not be petitioner's "accuser." Moreover, petitioner cites no authority, and the Court is aware of none, providing that the Confrontation Clause requires the presence of a "statutory accuser" at a defendant's trial. As explained above, the Confrontation Clause requires the presence of adverse witnesses at trial. The Warden, however, was not a witness against petitioner. Petitioner was tried on the evidence contained in the prison incident reports, which do not include or refer to any statements or other evidence provided by the Warden. Respt. Exh. 1B at 4-18. The Confrontation Clause requires the presence of adverse witnesses to serve several purposes: "(1) ensuring that witnesses will testify under oath; (2) forcing witnesses to undergo cross-examination; and (3) permitting the jury to observe the demeanor of witnesses."United States v. Medjuck, 156 F.3d 916, 919 n. 1 (9th Cir. 1998) (internal quotation and citation omitted). As the Warden was not a witness against petitioner, none of the purposes of the Confrontation Clause could have been served by securing her presence at petitioner's trial, and, consequently, petitioner is not entitled to habeas relief on this claim.
4. Sufficiency of the Evidence
Petitioner claims there was insufficient evidence to support his conviction because no evidence was introduced to prove that his possession of marijuana was "not authorized." A state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt states a constitutional claim, see Jackson v. Virginia, 443 U.S. 307, 321 (1979), which, if proven, entitles him to federal habeas relief, see id. at 324. A federal court reviewing collaterally a state court conviction does not determine whether the federal court is itself satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992). Rather, the federal court "determines only whether, `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" See id. (quoting Jackson, 443 U.S. at 319). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt, may the writ be granted. See Jackson, 443 U.S. at 324.
Section 4573.6 of the California Penal Code provides, in relevant part:
Any person who knowingly has in his or her possession in any state prison . . . any controlled substances, the possession of which is prohibited by Division 10 (commencing with Section 11 0000) of the Health and Safety Code without being authorized to so possess the same by the rules of the Department of Corrections, rules of the prison . . . or by the specific authorization of the warden, superintendent, jailer, or other person in charge of the prison . . . is guilty of a felony."
Cal. Penal Code § 4573.6 (emphasis added).
Petitioner contends that because the prison's Rules Violation Report was not supplied to the trial court, there was no evidence that his drug possession was not authorized. The California Court of Appeal determined, however, that lack of authorization is not, as a matter of California law, an element of the offense, but rather an affirmative defense. The Court of Appeal's determination of state law is binding on this Court.See Hicks, 485 U.S. 624 at 629 630 n. 3. Consequently, because lack of authorization is not an element of the offense of which petitioner was convicted, the prosecution's failure to provide evidence that petitioner's possession of a controlled substance was not authorized did not violate petitioner's right to due process.
CONCLUSION
In light of the foregoing, the petition for a writ of habeas corpus is DENIED. Any pending motions are terminated. The Clerk shall close the file. IT IS SO ORDERED.JUDGMENT IN A CIVIL CASE
Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.IT IS ORDERED AND ADJUDGED the petition for a writ of habeas corpus is DENIED. Any pending motions are terminated.