Opinion
No. CIV S-05-0998 LKK GGH P.
February 14, 2006
FINDINGS AND RECOMMENDATIONS
I. Introduction
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges two separate 2002 prison disciplinary convictions for possession of contraband and possession of inmate manufactured alcohol. Petitioner alleges that insufficient evidence supported his conviction for possession of contraband. With respect to his conviction for possession of alcohol, petitioner alleges that prison officials failed to do a field test of the liquid found in his cell. After carefully reviewing the record, the court recommends that the petition be denied.
II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)
The Antiterrorism and Effective Death Penalty Act (AEDPA) applies to this petition for habeas corpus which was filed after the AEDPA became effective. Neelley v. Nagle, 138 F.3d 917 (11th Cir.), citing Lindh v. Murphy, 117 S. Ct. 2059 (1997). The AEDPA "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).
In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.
"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S. Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law. . . . [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." Williams (Terry), 529 U.S. at 410-11, 120 S. Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S. Ct. 357 (2002).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S. Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S. Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S. Ct. at 366.
However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "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).
In reviewing a state court's summary denial of a habeas petition, this court must "look through" the summary disposition to the last reasoned decision. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000).
The Superior Court issued a reasoned decision denying petitioner's habeas corpus petition. Answer, Exhibit D. This opinion addressed petitioner's constitutional claims. Id. The California Supreme Court issued an unexplained decision denying petitioner's habeas corpus petition. Answer, Exhibit C. Accordingly, this court looks through the unexplained order of the California Supreme Court to determine whether the denial of petitioner's habeas corpus petition by the Superior Court was an unreasonable application of clearly established Supreme Court authority.
III. Discussion
The court will first address petitioner's claim challenging his conviction for possession of contraband (a lightbulb). The Rules Violation Report describes petitioner's offense as follows:
On February 16, 2002, at approximately 1045 hours, while working Position R0224, Unit # 1 Third Tier Officer, I conducted a random cell search of 1/C3-21, which is jointly occupied by Inmate VILLARREAL, H69045 and LOPEZ, P82319, when I found hidden in the wall locker unit a 10" by 1/4" glass hagon light bulb which was inside a inmate manufactured paper sleeve taped to the inside left crevice of the wall locker unit so as not to be seen from the front. This glass is tempered and strong enough to be used as a stabbing instrument. The dangerous contraband was in an area of the cell that is accessible by both inmates. The dangerous contraband was turned over to the Unit Sergeant, Sergeant Ramos. Inmate VILLAREAL is not a participant in the Mental Health Program at the CCMS or COP level of care. Inmate VILLAREAL is aware of this report.
Answer, Exhibit B.
At the disciplinary hearing petitioner testified, "I did not see this and have not seen the light bulb that they are talking about." Answer, Exhibit B.
Petitioner had been charged with possession of dangerous contraband in violation of Cal. Code Regs. tit. 15, § 3006(a). The hearing officer found petitioner guilty of the lesser offense of possession of contraband in violation of § 3006(c)(3) and assessed 30 days time credits based on the following evidence:
1. The contents of the written report by Officer S.J. Novikoff which clearly supports the finding that Inmate VILLAREAL violated the amended charge of CCR # 3006 CONTRABAND.
2. The glass hagon lightbulb is considered contraband. However, it does not constitute dangerous contraband.
3. The contraband was found concealed in a crevice of the wall locker unit.
Answer, Exhibit B.
Due process requires that there be "some evidence" supporting a prison disciplinary proceeding that deprives a prisoner of good time credits. Superintendent v. Hill, 472 U.S. 445, 455 (1985). This standard "does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence," but instead asks "whether there is any evidence in the record that could support" the challenged finding. Id.
Petitioner argues that the guilty finding was not well supported because the lightbulb was not broken or sharp, suggesting that it could not have been used as a weapon. Petitioner states that the lightbulb was, at most, excess property. As indicated above, petitioner was not found guilty of possession of dangerous contraband. Rather, he was found guilty of possession of contraband, which is defined as "anything which is not permitted, in excess of the maximum quantity permitted, or received or obtained from an unauthorized source." Cal. Code Regs. tit. 15, § 3000. The lightbulb was contraband because it was, as conceded by petitioner, excess property.
Petitioner next argues that there was insufficient evidence to support his conviction because no evidence was presented demonstrating how he obtained the lightbulb. The fact that the lightbulb was found in his cell was some evidence that petitioner possessed the lightbulb. Prison officials were not required to present evidence demonstrating how petitioner obtained the lightbulb.
For the reasons discussed above, the court finds that there was some evidence to support petitioner's conviction for possession of contraband.
Petitioner next challenges his conviction for possession of inmate manufactured alcohol in violation of Cal. Code Regs. tit. 15, § 3016, on grounds that prison officials did not field test the liquid found in his cell. The Rules Violation Report describes petitioner's offense as follows:
On February 16, 2002, at approximately 1045 hours, while working position R0224, Unit # 1 Third Tier Officer, I conducted a cell search of cell 1/C3-21, which is jointly occupied by inmate VILLAREAL, H69045 and LOPEZ, P82319, when I found in a card board box under the bottom bunk in a common area with easy access to both inmates, a twelve ounce Folgers plastic container containing inmate manufactured alcohol. The alcohol was strained and in the completed stages of fermentation, giving off a very strong odor of alcohol. The alcohol was verified by Unit Sergeant Ramos and I disposed of it by pouring the alcohol down the Unit toilet and flushing it. The alcohol was made from citrus as the fruit pulp could be seen floating in the jar. Inmate VILLAREAL is not a participant in the Mental Health Program at the CCMS or EOP level of care. Inmate VILLAREAL is aware of this report.
Answer, Exhibit B.
At the disciplinary hearing, petitioner testified that, "When they brought the juice to me I was trying to find out who sent it to me. When I came out I used the excuse to use the iron so that I could come out to find out who sent the juice to me. At 8:00 a.m., as I came out, the officer went in and searched my cell and it appeared like it was set-up." Answer, Exhibit B.
At the hearing, Inmate Boles was asked one question on petitioner's behalf:
Question: Do you know if someone brought the wine to me?
Answer: I know that people have dropped stuff off in that area and it was not mine or his.
Answer, Exhibit B.
Petitioner was found guilty and assessed 120 days of time credits based on the following evidence:
1. The contents of the written report by Officer S.J. Novikoff which clearly supports the finding that Inmate VILLAREAL violated CCR # 3016 INMATE MANUFACTURED ALCOHOL.
2. Inmate VILLAREAL plead not guilty. However, in his statement he admitted to possession of the inmate-manufactured alcohol.
Answer, Exhibit B.
Cal. Code Regs. tit. 15, § 3290(a) requires that controlled substances be "field tested." The definition of "controlled substance" in the regulations does not include alcohol. Cal. Code Regs. tit. 15, § 3000. Therefore, petitioner's argument that the liquid found in his cell should have been field tested is without merit.
In any event, "some evidence" supported the guilty finding. The reporting officer's statement in the disciplinary report that the alcohol was strained and in the completed stages of fermentation, giving off a very strong odor of alcohol was some evidence that the liquid was alcohol. Petitioner did not dispute that the liquid was alcohol. Accordingly, petitioner's challenge to this disciplinary hearing is without merit.
For the reasons discussed above, the court finds that the Superior Court's denial of these claims was not an unreasonable application of clearly established Supreme Court authority. Accordingly, petitioner's application for a petition for writ of habeas corpus should be denied.
Accordingly, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).