Opinion

(HC) Godfrey v. Warden PBSP

Court
District Court, E.D. California
Filed
Jun 29, 2022
Cited by
0 cases
Authority
More cited than 18.1%

“[A] state-court factual determination is not unreasonable 18 merely because the federal habeas court would have reached a different conclusion in the first 19 instance.”

How later courts described this case

  • “[A] state-court factual determination is not unreasonable 18 merely because the federal habeas court would have reached a different conclusion in the first 19 instance.”

Written by the judges who cited it.

The opinion

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 JOSHUA MICHAEL GODFREY, Case No. 1:19-cv-01197-JLT-HBK (HC)

12 Petitioner, FINDINGS AND RECOMMENDATIONS TO

DENY PETITION FOR WRIT OF HABEAS

13 v. CORPUS AND TO DECLINE TO ISSUE A

CERTIFICATE OF APPEALABILITY1

14 WARDEN PBSP,

FOURTEEN-DAY OBJECTION PERIOD

15 Respondent.

(Doc. No. 1)

16

17 Petitioner Joshua Michael Godfrey (“Petitioner”), a state prisoner proceeding pro se, filed

18 a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1, “Petition”). The

19 Petition raises two grounds for relief: (1) Petitioner’s due process rights were violated when

20 correctional officials failed to comply with time limitations during a disciplinary hearing; and (2)

21 insufficient evidence supported the disciplinary finding that Petitioner was guilty of distribution

22 of controlled substances. (See generally id.). As relief, Petitioner requests the disciplinary

23 charges be “dismissed without prejudice” and for “any all relief available” to Petitioner. (Id. at

24 14). For the reasons set forth below, the undersigned recommends the Court deny Petitioner any

25 relief on his petition and decline to issue a certificate of appealability.

26 /////

27

1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302

28 (E.D. Cal. 2022).

1 I. BACKGROUND

2 A. Procedural History

3 Petitioner initiated this case on August 7, 2019 by filing the instant Petition in the

4 Northern District of California, which was transferred to this Court. (Doc. No. 1, 6). After being

5 ordered to respond to the Petition, Respondent filed a Motion to Dismiss for lack of federal

6 habeas jurisdiction on March 27, 2020. (Doc. No. 19). After ordering additional briefing, the

7 undersigned entered Findings and Recommendations to deny Respondent’s Motion to Dismiss.

8 (Doc. Nos. 29, 34). The Court adopted the Findings and Recommendations and denied

9 Respondent’s Motion to Dismiss. (Doc. No. 35). After being ordered to respond to the merits of

10 the Petition, Respondent filed an answer to the petition and lodged the pertinent state court

11 record. (Doc. No. 38). Petitioner filed a traverse. (Doc. No. 40). This matter is submitted on the

12 record.

13 B. Facts Based Upon the Record

14 Petitioner is serving a determinate 31-year and four-month state prison sentence for his

15 2010 plea-based conviction for carjacking, robbery and assault with a semi-automatic firearm

16 entered by the San Mateo Superior Court. (Doc. No. 38-1).

17 On July 30, 2014, Reporting Employee and Correctional Officer (“C/O”) M. Clearly,

18 Investigative services Unit (ISU), opened an investigation into the circumstances surrounding the

19 discovery of what appeared to be methamphetamines mailed into [Pelican Bay State Prison] via

20 the United States Postal Service with a preliminary finding of it being positive for

21 methamphetamines. (See Doc. No. 38-2 at 26). On September 23, 2014, C/O M. Cleary

22 concluded the investigation and wrote a rules violation report (“RVR”) charging Petitioner with

23 “distribution of any controlled substance in an institution/facility or contract health facility” in

24 violation of 15 Cal. Code Regs. § 3016(c). (Id. at 11-12, 29-36). On October 7, 2014, Petitioner

25 requested the postponement of the hearing pending resolution of possible criminal prosecution.

26 (Id. at 38). One February 2, 2016, notice was received from the Del Norte County District

27 Attorney’s Office that they declined to prosecute, and that the charges were dismissed without an

28 acquittal. (Id. at 37). Petitioner requested and was assigned an investigative employee, and the

1 investigative report was reviewed by the SHO in the hearing. (See Doc. No. 38-2 at 14-16)

2 (“GODFREY acknowledges receiving and reviewing the completed Investigative Employee

3 report more than 24 hours in advance of the hearing. In the hearing, GODFREY stated that he

4 was satisfied with the Investigative Employee report.”)(capitalization in original).

5 On February 29, 2016, a disciplinary hearing was convened, but was postponed because

6 the reporting employee, C.O. Cleary who Petitioner had requested to testify, was not available to

7 appear as a witness. (Id. at 16). The hearing reconvened on March 2, 2016. (Id.). Petitioner

8 appeared at the hearing and stated that he was in good health and had received a copy of all

9 pertinent documents more than 24 hours in advance of the hearing. (Id.).

10 At the hearing, Petitioner pled “not guilty” and testified as follows:

11 I did not make any of those phone calls. I have never seen any of

those letters. They were not mine or in my property. The evidence

12 does not support the charges because I never got any money. I

didn’t sign up for any phone calls.

13 (Id. at 17).

14 In response to questions from Petitioner, C/O Cleary following testimony:

15 The search of GODFREY’S personal property was not video

recorded as this is not required per any departmental policy.

16 Anything that was utilized as evidence in this case was processed

into evidence and remains in evidence within the Security Squad

17 Complex. He is absolutely positive that the letters addressed to

GODFREY containing Methamphetamine were discovered within

18 the personal property of GODFREY. At the time that the search

took place of GODFREY and GIBSON’S personal property that

19 had been seized and was the only property searched at that time.

20 (Id.). Finally, it was stipulated as the testimony of the Control Booth Officer assigned to Facility

21 A, Building Seven, during the dates of June and July 2014 that “[i]t is possible that if the Control

22 Booth Officer was distracted during Dayroom for example another inmate could utilize the

23 Inmate Ward Telephone Service without the Control Booth Officers knowledge and that inmates

24 do not sign up for phone calls on the Phone Log.” (Id. at 18).

25 Based on the following evidence, the hearing officer found Petitioner guilty of distribution

26 of any controlled substance in an institution/facility:2

27

2 As noted by the SHO, Cal. Code Regs. tit. 15, § 3000 and § 3016 “requires two-levels of evidence: first,

28 possession of a controlled substance in an institution must be proven. This means a controlled substance

1 1. The testimony of Correctional Officer M. Cleary in the

disciplinary report of September 23, 2014 wherein Correctional

2 Officer Cleary testifies that on July 31, 2014 he initiated an

investigation into the circumstances surrounding the discovery

3 of methamphetamine that was mailed into Pelican Bay State

Prison (PBSP), Facility A, Section B, on July 31, 2014.

4

On Tuesday, September 23, 2014, he concluded .the

5 investigation. Information contained in this investigation

identified inmate Joshua Michael GODFREY, [] facilitating the

6 Introduction of a Controlled Substance into an institution.

Therefore, September 23, 2014, shall serve as the discovery

7 date for this offense. This investigation is documented on

Confidential Memorandum dated September 23, 2014, located

8 in the confidential section of GODFREY’S central file. …

Information contained in the memorandum uncovers a large

9 methamphetamine distribution network that was accomplished

via the United States Postal Service. The methamphetamine

10 distribution network was carried out by a member in the

community, and facilitated in part by inmate GODFREY, and

11 several other inmates housed on Facility A, Unit 8, Section B, at

Pelican Bay State Prison.

12

Three separate incoming correspondences were either recovered

13 in the personal property belonging to GODFREY, or intercepted

before reaching GODFREY. These three correspondences

14 consisted of three envelopes that all contained

methamphetamine secreted under the postage stamps.

15 Additionally, through investigation, the identity of the member

of the community was uncovered. A search was conducted [at]

16 the member in the community’s residence, and another similar

correspondence was discovered addressed to GODFREY.

17

Furthermore, evidenced in this memorandum is the descriptive

18 content of three telephone calls placed by GODFREY from the

Inmate Ward Telephone System (IWTS). Three calls were

19 placed to the same telephone number belonging to the member

of the community, who was introducing controlled substances

20 into Facility A, Unit 8, Section B. The telephone calls placed

by GODFREY to the member of the community contain coded

21 dialogue describing details of the introduction of controlled

substances into the institution. Specifically, the memorandum

22 contains the following information:

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25 must be found in the possession of at least one member of the distribution network and, per CCR 3290, it

must be identified as a controlled substance by laboratory testing. Second, in the case of each inmate

26 found guilty of this charge, there must be evidence of something more than personal use. There must be

evidence that the inmate is promoting or assisting in the distribution of the controlled substance to other

27 inmates. This evidence might include confidential information, large quantities that exceed a reasonable

amount for personal use, packaging or evidence of income from drug sales.”

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1 a. June 19, 2014, GODFREY relays information from

another inmate to the member in the community about

2 selling methamphetamine.

3 b. July 13, 2014, GODFREY identifies himself by his first

name and relays a fourteen-digit Green Dot account

4 number to the member in the community. Additionally,

in this call, GODFREY instructs the member in the

5 community to send him four letters containing

methamphetamine, and four to another inmate.

6

c. July 14, 2014, GODFREY confirms information relayed

7 during previous call.

8 d. Other information contained in the memorandum

document the results of the Green Dot subpoena that

9 corroborates several of the fourteen-digit Green Dot

numbers relayed by several inmates and credited to the

10 pre-paid debit card belonging to the member in the

community, who was introducing the controlled

11 substances. One of the aforementioned Green Dot

account numbers on the subpoena matched the number

12 relayed by GODFREY.

13 2. The testimony of [C/O] M. Cleary in the Crime Incident Report

of July 30, 2014 wherein [C/O] Cleary testifies that on July 30,

14 2014 Methamphetamines were discovered secreted under the

postage stamp on an incoming letter addressed to inmate

15 GODFREY [].

16 a. On July 31, 2014 a search was conducted by [PBSP]

Investigative Services Unit (ISU) staff of inmates

17 GODFREY AND GIBSON [] assigned cell. During the

search he discovered two additional letters containing

18 Methamphetamine secreted under postage stamps. One

letter was addressed to GODFREY and one to GIBSON.

19

b. On July 31, 2014 [C/O] Cleary initiated an investigation

20 into the Distribution of Narcotics at PBSP involving

inmates [GODFREY].

21

c. During the course of the investigation forty-nine Inmate

22 Ward Telephone System (IWTS) phone calls were

monitored showing that the amounts of

23 Methamphetamine as well as the frequency of the

distribution would indicate that they are much more than

24 the amounts typically used for personal consumption.

25 d. Evidence within the phone calls reveals that

approximately seventy-five to one hundred mailings

26 containing Methamphetamine were likely mailed into

Facility A, Building 8, B Section between the dates of

27 March 7, 2014 and July 31, 2014.

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1 e. Multiple Green Dot account numbers were relayed from

several inmates via the IWTS to [the community

2 member] Shirley Withers for payment of

Methamphetamines.

3

f. On August 13, 2014, a joint operation was conducted

4 with member of the PBSP ISU, California Department

of Corrections and Rehabilitation (CDCR), Special

5 Services Unit (SSU) and High Desert State Prison

(HDSP) ISU for the service of an Arrest Warrant of

6 Shirley Withers and a Search Warrant of the premises at

which she resides. The search led to the discovery of

7 Methamphetamines, Items of Drug Paraphernalia, glass

pipe with spoon, syringes, postage stamps similar to the

8 stamps recovered in the aforementioned mailings and

one letter addressed to GODFREY.

9

g. On August 25, 2014 records relevant to this

10 investigation were subpoenaed from the Green Dot

Cooperation. On August 29, 2014 the records were

11 received. The account number from one of the pre-paid

debit cards recovered from Shirley Withers matched

12 corresponding Green Dot transactions that corresponded

with Green Dot account numbers that were relayed to

13 Withers from the involved inmates. Records

corroborate that Shirley Withers redeemed at least nine

14 hundred ten dollars from the inmates identified in this

investigation.

15

3. The testimony of [C/O] Cleary in the Confidential

16 Memorandum dated September 23, 2014 wherein [C/O] Cleary

testifies that on July 31, 2014 he initiated [an] investigation

17 relative to the discovery of Methamphetamine secreted under a

postage stamp on an incoming letter addressed to inmate Joshua

18 GODFREY []. As a result of the investigation, a Narcotics

Distribution Network at PBSP has been identified involving

19 [inmate GODFREY]. This Narcotics Distribution Network was

facilitated by the assistance of a civilian identified as Shirley

20 Withers, [].

21 4. Department of Justice, Bureau of Forensic Services report dated

August 26, 2014 identifying item number two as 0.020 net

22 grams of Methamphetamine and item number five as 0.042 net

grams of Methamphetamine.

23

5. Eighty-two evidentiary photographs [] depicting various

24 mailings addressed to GODFREY [] and GIBSON [] showing

the presence of Methamphetamine secreted behind the stamp,

25 NarcoPouch Methamphetamine MDMA (Ecstasy) Reagent

showing presumptive positive tests for Methamphetamine,

26 personal photographs, tow MasterCard Debit cards in the name

of Shirley Withers and identification photographs of Shirley

27 Withers and Sara Gibson.

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1 6. Consideration was given to the plea and testimony provided by

GODFREY. In review of the audio recordings of the telephone

2 calls made by and speaking with GODFREY during the

Disciplinary Hearing the voice and characteristics were close

3 enough to conclude that GODFREY placed the phone calls as

alleged. [C/O] Cleary in response to questions presented by

4 GODFREY during the hearing states that he was absolutely

positive the letters recovered addressed to GODFREY were

5 discovered within the personal property removed from

GODFREY’S cell.

6

(Id. at 18-21).

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8 Petitioner was assessed 180 days of loss of time credits, was subject to random drug

9 testing for one year, had all privileges suspended for 30 days, and was not allowed any visits for

10 one year. (Id. at 21).

11 In April 2016, Petitioner filed a prison appeal (CDCR 602), contending (1) that he was

12 denied due process because the incident occurred over two years prior to the hearing, thus

13 violating the forty-five day maximum deadline, and (2) there is insufficient evidence to support

14 the guilty finding. (Id. at 62-65, 72). The record contains multiple additional prison appeals

15 claiming “staff misconduct – falsified documents” because, according to Petitioner, the date of his

16 “115 hearing” actually took place March 4, 2016 as opposed to the “recorded date” of March 2,

17 2016 which resulted in improper credit forfeiture. (Id. at 51, 54, 57). In support of this

18 argument, he referenced the senior hearing examiner’s September 28, 2016 response to

19 Petitioner’s previous request to modify the date in which he appeared to acknowledge that “[i]t

20 appears [Petitioner] identified a topographical error similar to that – to the spelling of my name.

21 My apologies. If you wish I can strike through correct, initial [and] date.” (Id. at 50).3

22

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24 3 The SHO submitted a declaration “in support of return to order to show cause” before the Superior Court

of Del Norte County asserting that Petitioner’s contention that the hearing was untimely because it

25 commenced on March 2, 2016 and was continued to March 4, 2016 is “incorrect.” (Doc. No. 38-9 at 4).

Rather, the SHO verified that, as reflected in his report, the hearing commenced on February 29, 2016,

26 was continued because C/O Cleary was not available, and was reconvened on March 2, 2016. The SHO

further noted that he “verified through time keeping records at the prison that [he]was on duty on February

27 29, 2016. [He] also verified that [he] was on duty on March 2, 2016 and that [he] requested an hour of

overtime so that [he] could complete his report. Finally, [he] verified that [he] was not on duty at all on

28 March 4, 2016, thus, [he] could not have presided over a hearing on that date.” (Id.).

1 In the second level response to that appeal, the reviewer found the finding of the senior

2 hearing officer was reasonable and Petitioner “failed to present sufficient evidence to warrant a

3 reduction or dismissal in the finding.” Thus, Petitioner’s “request for the guilty finding of

4 conspiracy to distribute controlled substances be dismissed is DENIED.” (Id. at 72-74). The

5 reviewer at the third level agreed and expanded upon those findings as follows:

6 The appeals process is not intended to provide a rehearing of the

RVR rather it is to determine whether the appellant was afforded

7 his due process and administrative protections in the adjudication of

the disciplinary. The Third Level of Review (TLR) will conduct a

8 review of the hearing and consider if the final determination of the

[Senior Hearing Officer (“SHO”)] was reasonable and the finding is

9 supported by some evidence. Evidence and/or factors that were

reasonably discoverable at the time of the disciplinary hearing but

10 not presented at the hearing are not evaluated by the TLR.

11 The Examiner thoroughly reviewed all documents relative to the

appellant’s RVR and finds that the Senior Hearing Officer provided

12 a very thorough synopsis of the preponderance of evidence used to

find the appellant guilty and assessed a credit forfeiture in

13 compliance with the credit forfeiture schedule. The TLR finds the

appellant was afforded all required due process.

14

The appellant’s appeal issue and request are not supported. The

15 constraints were met. The date of discovery is September 23, 2014.

The appellant was issued his initial copy of the RVR on October 7,

16 2014, within the mandated 15 days allowed, and on that ate he

requested the disciplinary hearing he postponed pending the District

17 Attorney (DA) referral. On February 2, 2016, the institution was

contacted regarding the outcome of the DA referral. The hearing

18 was subsequently conducted on February 29, 2016; postponed to

allow for the RE’s presence as requested by the appellant; and

19 reconvened and concluded on March 2, 2016.

20 The evidence presented does support the charge and guilty finding.

The appellant’s claim regarding the IE report is negated by the fact

21 that he agreed to stipulated testimony that would have been

provided by the Control Booth Officer. The appellant has not

22 provided any evidence the SHO was biased during the hearing of

the disciplinary hearing. No relief is warranted at the TLR.

23

(Id. at 76-77).

24

After exhausting his remedies, Petitioner challenged his disciplinary violation in a petition

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for writ of habeas corpus filed in the Del Norte County Superior Court. The Superior Court

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granted an evidentiary hearing and found Petitioner did not meet his burden of proof; thus, the

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petition for writ of habeas corpus was denied. (Doc. Nos. 38-3 at 2, 38-4 at 69-71; 38-6 at 75).

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1 The California Court of Appeal and the California Supreme Court both summarily denied

2 petitioner’s habeas petitions. (Doc. Nos. 38-6 at 75-76, 38-7). Petitioner now proceeds on his

3 Petition.

4

II. APPLICABLE LAW

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A. AEDPA General Principles

6

A federal court’s statutory authority to issue habeas corpus relief for persons in state

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custody is set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death

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Penalty Act of 1996 (AEDPA). AEDPA requires a state prisoner seeking federal habeas relief to

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first “exhaus[t] the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). If

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the state courts do not adjudicate the prisoner’s federal claim “on the merits,” a de novo standard

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of review applies in the federal habeas proceeding; if the state courts do adjudicate the claim on

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the merits, then the AEDPA mandates a deferential, rather than de novo, review. Kernan v.

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Hinojosa, 136 S. Ct. 1603, 1604 (2016). This deferential standard, set forth in § 2254(d), permits

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relief on a claim adjudicated on the merits, but only if the adjudication:

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(1) resulted in a decision that was contrary to, or involved an

16 unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

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(2) resulted in a decision that was based on an unreasonable

18 determination of the facts in light of the evidence presented in the

State court proceeding.

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20 28 U.S.C. § 2254(d). This standard is both mandatory and intentionally difficult to satisfy.

21 Sexton v. Beaudreaux, 138 S. Ct. 2555, 2558 (2018); White v. Woodall, 572 U.S. 415, 419 (2014).

22 “Clearly established federal law” consists of the governing legal principles in the

23 decisions of the United States Supreme Court when the state court issued its decision. White, 572

24 U.S. at 419. Habeas relief is appropriate only if the state court decision was “contrary to, or an

25 unreasonable application of,” that federal law. 28 U.S.C. § 2254(d)(1). A decision is “contrary

26 to” clearly established federal law if the state court either: (1) applied a rule that contradicts the

27 governing law set forth by Supreme Court case law; or (2) reached a different result from the

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1 Supreme Court when faced with materially indistinguishable facts. Mitchell v. Esparza, 540 U.S.

2 12, 16 (2003).

3 A state court decision involves an “unreasonable application” of the Supreme Court’s

4 precedents if the state court correctly identifies the governing legal principle, but applies it to the

5 facts of the petitioner’s case in an objectively unreasonable manner, Brown v. Payton, 544 U.S.

6 133, 134 (2005), or “if the state court either unreasonably extends a legal principle from

7 [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to

8 extend that principle to a new context where it should apply.” Williams v. Taylor, 529 U.S. 362,

9 407, (2000). “A state court’s determination that a claim lacks merit precludes federal habeas

10 relief so long as fair-minded jurists could disagree on the correctness of the state court’s

11 decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011). The petitioner must show that the

12 state court decision “was so lacking in justification that there was an error well understood and

13 comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

14 When reviewing a claim under § 2254(d), any “determination of a factual issue made by a

15 State court shall be presumed to be correct[,]” and the petitioner bears “the burden of rebutting

16 the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Burt

17 v. Titlow, 571 U.S. 12, 18 (2013) (“[A] state-court factual determination is not unreasonable

18 merely because the federal habeas court would have reached a different conclusion in the first

19 instance.”) (quoting Wood v. Allen, 558 U.S. 290, 293 (2010)).

20 As discussed earlier, for the deferential § 2254(d) standard to apply there must have been

21 an “adjudication on the merits” in state court. An adjudication on the merits does not require that

22 there be an opinion from the state court explaining the state court’s reasoning. Richter, 562 U.S.

23 at 98. “When a federal claim has been presented to a state court and the state court has denied

24 relief, it may be presumed that the state court adjudicated the claim on the merits in the absence

25 of any indication or state-law procedural principles to the contrary.” Id. at 99. “The presumption

26 may be overcome when there is reason to think some other explanation for the state court’s

27 decision is more likely.” Id. at 99-100. This presumption applies whether the state court fails to

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1 discuss all the claims or discusses some claims but not others. Johnson v. Williams, 568 U.S.

2 289, 293, 298-301 (2013).

3 While such a decision is an “adjudication on the merits,” the federal habeas court must

4 still determine the state court’s reasons for its decision in order to apply the deferential standard.

5 When the relevant state-court decision on the merits is not accompanied by its reasons,

6 the federal court should “look through” the unexplained decision to

the last related state-court decision that does provide a relevant

7 rationale. It should then presume that the unexplained decision

adopted the same reasoning. But the State may rebut the

8 presumption by showing that the unexplained affirmance relied or

most likely did rely on different grounds than the lower state court’s

9 decision, such as alternative grounds for affirmance that were

briefed or argued to the state supreme court or obvious in the record

10 it reviewed.

11 Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The federal court “looks through” the silent state

12 court decision “for a specific and narrow purpose—to identify the grounds for the higher court’s

13 decision, as AEDPA directs us to do.” Id. at 1196.

14 When . . . there is no reasoned state-court decision on the merits,

the federal court “must determine what arguments or theories . . .

15 could have supported the state court’s decision; and then it must ask

whether it is possible fairminded jurists could disagree that those

16 arguments or theories are inconsistent with the holding in a prior

decision of this Court.” Richter, 562 U.S. at 102. If such

17 disagreement is possible, then the petitioner’s claim must be denied.

Ibid.

18

19 Sexton, 138 S. Ct. at 2558. The petitioner bears the burden to demonstrate that “there was no

20 reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98.

21 III. ANALYSIS

22 A. Ground One: Due Process Violations

23 1. Background

24 Petitioner argues that his due process rights were violated when several time limits were

25 allegedly exceeded in his prison disciplinary proceedings. First, Petitioner contends that he did

26 not receive a copy of the July 30, 2014 RVR until October 7, 2014, thereby violating California

27 Code of Regulations Title 15 § 3320, which prohibits the denial or forfeiture of credits when an

28 inmate is ‘not provided with a copy of the CDC Form 115 within 15 days after the discovery of

1 the information leading to the charges….” (Doc. No. 1 at 11 (citing Cal. Code Regs. tit. 15, §

2 3320)). Petitioner acknowledges that the RVR noted September 23, 2014 as the “date of

3 discovery” but argues that “[a]llowing September 23rd as the date of discovery is against title 15

4 3320 [because] Petitioner had already been in [ASU] since [July 30, 2014] it would deny him due

5 process and prejudice his hearing to allow [September 23, 2014] to be the official date of

6 discovery.” (Id. at 12). Second, Petitioner appears to claim that the disciplinary proceedings

7 “violat[ed] fair and speedy hearing policies” because the hearing was held “a year and a [half]”

8 after the incident and 31 days after decision by the country prosecutor declining to prosecute on

9 February 2, 2016 in violation of “CCR 15 3320(e)(4).”4 (Id. at 11-12).

10 As noted above, at the third level review of Petitioner’s prison appeal the reviewer found

11 Petitioner’s claimed due process violations

12 are not supported. The constraints were met. The date of discovery

is September 23, 2014. The appellant was issued his initial copy of

13 the RVR on October 7, 2014, within the mandated 15 days allowed,

and on that date he requested the disciplinary hearing he postponed

14 pending the District Attorney (DA) referral. On February 2, 2016,

the institution was contacted regarding the outcome of the DA

15 referral. The hearing was subsequently conducted on February 29,

2016; postponed to allow for the RE’s presence as requested by the

16 appellant; and reconvened and concluded on March 2, 2016.

17 (Doc. No. 38-1 at 76).

18 2. Petitioner is Not Entitled to Relief on Ground One

19 First, to the extent Petitioner challenges the state court decisions concerning the timing of

20 his disciplinary proceedings under state regulations, his claim is not cognizable on habeas review.

21 (Doc. No. 38 at 12). Federal habeas corpus relief “does not lie for errors of state law,” Estelle v.

22 McGuire, 502 U.S. 62, 67 (1991), and this court is bound by the state court’s determination based

23 on state law, Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam) (“[A] state court’s

24 interpretation of state law, including one announced on direct appeal of the challenged conviction,

25 binds a federal court sitting in habeas corpus.”). See also Waddington v. Sarausad, 555 U.S. 179,

26

27 4 The Court presumes Petitioner intended to cite Cal. Code Regs. tit. 15 § 3320(f)(4) which indicates that

denial or forfeiture of credits is precluded if the “disciplinary hearing was not held within 30 days after the

28 chief disciplinary officer was notified of the outcome of a prosecution referral . …”

1 192 n.5 (2009) (“we have repeatedly held that ‘it is not the province of a federal habeas court to

2 reexamine state-court determinations on state-law questions.’”). Moreover, a habeas petitioner

3 may not ‘transform a state-law issue into a federal one” merely by asserting a violation of the

4 federal constitution. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997). Thus, to the extent

5 Petitioner’s claims are based on alleged violations of state laws, such as the California Penal

6 Code and/or California prison regulations, his claims are not cognizable in federal habeas

7 proceedings.

8 Second, as noted by Respondent, there is no clearly established federal law requiring

9 prison officials to hold a disciplinary hearing within a specific time from the date notice is given,

10 or “according to a particular schedule provided by state regulations.” (Doc. No. 38 at 12-14); See

11 Medina v. Sullivan, 2011 WL 3741011, at *7 (E.D. Cal. Aug. 24, 2011) (“there is no clearly

12 established federal law within the meaning of 28 U.S.C. § 2254(d)(1) that would require that

13 prison officials either comply with California’s regulation concerning the time limits of holding a

14 prison disciplinary hearing, or give any other specific time period of notice beyond the twenty-

15 four minimum set in Wolff.”). However, inmates subjected to disciplinary action that carries a

16 potential loss of good-time credits are entitled to certain limited due process procedural

17 protections, albeit not the full panoply of rights afforded to criminal defendants. Wolff v.

18 McDonnell, 418 U.S. 539, 556 (1974); see also Superintendent v. Hill, 472 U.S. 445, 455-56

19 (1985). In the context of prison disciplinary proceedings, due process requires that the prisoner

20 receive the following procedural guarantees: (1) advance written notice of at least 24 hours of

21 the disciplinary charges; (2) an impartial hearing body; (3) an opportunity, when consistent with

22 institutional safety and correctional goals, to call witnesses and present documentary evidence in

23 his defense; (4) a written statement by the factfinder of the evidence relied on and the reasons for

24 the disciplinary action; and (5) assistance to the prisoner where the prisoner is illiterate or the

25 issues presented are legally complex. Wolff, 418 U.S. at 563-567; Hill, 472 U.S. at 454.

26 Here, Petitioner does not challenge that he received written notice more than twenty-four

27 hours before his hearing, that he was able to present arguments and evidence at the hearing before

28 an impartial hearing body, or that he received a written statement of the reasons for the SHO’s

1 decision, which is all the process he was due pursuant to clearly established Supreme Court case

2 law. See id. Rather, Petitioner argues that the prison disciplinary proceedings failed to comply

3 with timeframes set forth in the California Code of Regulations.5 However, the Supreme Court

4 has not clearly established that a prison must inform a prisoner of an alleged violation within a

5 specific time from the date it discovered the facts underlying the charge, nor has it established

6 that a hearing must take place within a certain time frame from the date notice is given.

7 Accordingly, Petitioner’s claim that the prison violated its procedures does not warrant federal

8 habeas relief. See Penton v. Huber, 2013 WL 1156501, at *7 (E.D. Cal. Mar. 19, 2013) (violation

9 of prison regulation requiring disciplinary hearing within thirty days does not state a

10 constitutional claim); Garrett v. Marshall, 2009 WL 3417786, at *3 (C.D. Cal. Oct.20, 2009)

11 (“Petitioner['s] claim[ ] that the prison officials violated Cal. Penal Code § 2932(c)(1)(A), and

12 California Code of Regulation, Tit. 15, § 3320 by not providing him with notice of the

13 disciplinary charges within 15 days after discovery of the evidence giving rise to the charges ... is

14 firmly rooted in state law and thus is not cognizable in a federal habeas corpus petition.”). Thus,

15 even assuming Petitioner can show that prison officials failed to timely provide him with a copy

16 of the RVR or conduct the disciplinary hearing according to the deadlines set out in state

17 regulations, not conceded, he cannot demonstrate that the state court’s decision was contrary to or

18 an unreasonable application of clearly established Supreme Court law.

19 Because the state court’s rejection of Petitioner’s claim was not an unreasonable

20 application of clearly established federal law as set forth by the Supreme Court nor based on an

21 unreasonable determination of the facts, the undersigned finds ground one of the Petition is

22 without merit and should be denied.

23 B. Ground Two: Insufficient Evidence

24 1. Background

25 In his second ground, Petitioner argues the SHO “imposed [a] finding of guilt for

26 distribution of controlled substance when evidence only supported conspiracy to introduce.”

27

5 Notably, the disciplinary was delayed upon Petitioner’s request that the hearing be postponed until after

28 the state criminal proceedings concerning the incident had concluded.

1 (Doc. No. 1 at 11). In support of this argument, the Petition first outlines evidence used by the

2 SHO to support “a finding of guilt for distribution,” as follows:

3 • ISU claims that petitioner was recorded via phone system

recording device placing a call to a person on the streets

4 requesting that she set up pen pals for Godfrey and to ‘have

the girls write’ alleged [sic] dialog for her to smug[gle]

5 drugs within the letters. Original date of first call was June

29th, 2014.

6

• On July 13th, 2014 ISU allegedly recorded Godfrey

7 requesting 4 letters from member of the community and

exchanged one greendot number as payment for the drugs.

8

• On July 14th Godfrey allegedly calls the member again to

9 confirm the previous call. That concluded the recorded

evidence.

10

• On July 30th [m]ail room staff intercepted 2 incoming

11 mailings, they intercepted another mailing addressed to

Godfrey the following day[,] July 31st. ISU allegedly

12 recovered a mailing addressed to Godfrey within the

property of his cell mate [Gibson] also had [contraband]

13 intercepted via USPS.

14

(Doc. No. 1 at 12). Based on this own recounting of the evidence presented at the disciplinary

15

hearing, Petitioner claims

16

• [t]here was no further evidence to support ISU’s claim of

17 distribution network in PBSP [sic] aside from other inmates

relaying either phone numbers or instructing the member of

18 the community ‘to have the girl write.’ ISU never produced

the source of the green dot numbers nor had any witnesses

19 to support their theory.

20 • [Plainly] petitioner never distributed any drugs the alleged 4

letters were all recovered by ISU, [and] intercepted by mail

21 room attendants. [F]urther, there was never any [amount] of

methamphetamine retrieved to distribute. [A]ll samples

22 were .02 grams. ISU fabricated a story to deny petitioner

his due process and equal protection based on a

23 preponderance of evidence.

24 (Id.). As noted above, at the third level review of Petitioner’s prison appeal the reviewer found

25 the evidence supported the charge and guilty finding. (Doc. No. 38-1 at 76). The Del Norte

26 Superior Court denied Petitioner’s petition for writ of habeas corpus because he failed to state a

27 prima facie case supporting his claim. (Doc. No. 38-3 at 2).

28 2. Petitioner is Not Entitled to Relief on Ground Two

1 “[T]he requirements of due process are satisfied if some evidence supports the decision by

2 the prison disciplinary board to revoke good time credits. This standard is met if ‘there was some

3 evidence from which the conclusion of the administrative tribunal could be deduced.” Hill, 472

4 U.S. at 455. A finding of guilt on a prison disciplinary charge cannot be “without support” or

5 “arbitrary.” Id. at 457. The “some evidence” standard is “minimally stringent,” and a decision

6 must be upheld if there is any reliable evidence in the record that could support the conclusion

7 reached by the fact finder. Powell v. Gomez, 33 F.3d 39, 40 (9th Cir. 1994) (citing Hill, 472 U.S.

8 at 455-56 and Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987)). Determining whether this

9 standard is satisfied in a particular case does not require examination of the entire record,

10 independent assessment of the credibility of witnesses, or the weighing of evidence. Toussaint v.

11 McCarthy, 801 F.2d 1080, 1105 (9th Cir. 1986), abrogated in part on other grounds by Sandin v.

12 Connor, 515 U.S. 472 (1995). Indeed, in examining the record, a court is not to make its own

13 assessment of the credibility of witnesses or re-weigh the evidence. Hill, 472 U.S. at 455. The

14 question is whether there is any reliable evidence in the record that could support the decision

15 reached. Toussaint, 801 F.2d at 1105.

16 Petitioner appears to concede that there is evidence that he conspired to introduce a

17 controlled substance into PBSP, but argues there is no evidence to support a finding that he

18 actually distributed a controlled substance. (Doc. No. 1 at 12). As defined by the State of

19 California for these purposes, distribution means the sale or unlawful dispersing, by an inmate or

20 parolee, of any controlled substance; or the solicitation of or conspiring with others in arranging

21 for, the introduction of controlled substances into any institution, camp, contract health facility,

22 or community correctional facility for the purpose of sales or distribution. Cal. Code Regs. tit.

23 15, § 3000 (2014) (defining distribution for purposes of § 3016(c)—emphasis added).

24 Respondent counters that “it cannot be said there was no reasonable basis for the Superior

25 Court’s decision, or the Court of Appeal and California Supreme Court’s affirmation of that

26 decision,” as they were presented with the following information: C/O Cleary testified that three

27 incoming mailings were recovered in Petitioner’s personal property or intercepted before reaching

28 Petitioner that contained methamphetamine under the postage stamp; Shirley Withers, the

1 community member, had a mailing addressed to Petitioner in her possession; Godfrey placed

2 three phone calls to Withers and asked her to send four letters containing methamphetamine to

3 himself and four to another inmate using coded language; Godfrey provided a fourteen-digit

4 Green Dot account number as payment and the subpoena responses by Green Dot indicate the

5 number relayed by Godfrey and other inmates was credited against Withers’ Green Dot card; and

6 C/O Cleary testified he was “absolutely positive” the letters containing methamphetamine under

7 the postage stamp were discovered in Petitioner’s personal property. (Doc. No. 38 at 16-17).

8 Perhaps most relevant to refute Petitioner’s argument that there was insufficient evidence that he

9 distributed a controlled substance, Respondent noted that the SHO specifically found the

10 investigation revealed the scope of the drug transactions exceeded the amount for individual

11 consumption. For example, forty-nine inmate telephone calls were monitored, and those calls

12 indicate approximately seventy-five to 100 mailings containing methamphetamine were likely

13 sent to PBSP between March 7, 2014 and July 31, 2014. (Id. at 17).

14 Petitioner’s contention that there is no “further” evidence to support a finding that he

15 actually distributed a controlled substance is “based on his differing opinion as to the proper

16 interpretation of evidence rather than the total absence of evidence”; however, Petitioner fails to

17 show that it was unreasonable to interpret the evidence cited by Respondent as indicating that

18 Petitioner distributed the methamphetamine. Orozco v. Sullivan, 2020 WL 2521761, at *5 (E.D.

19 Cal. May 18, 2020) (finding superior court’s rejection of Petitioner’s claim that “some evidence”

20 evidence standard was not met for disciplinary conviction for possession of controlled substance

21 with intent to distribute was not contrary to or an unreasonable application of clearly established

22 law); Thigpen v. Martel, 2019 WL 5063429, at *5 (E.D. Cal. Oct. 9, 2019) (finding “[i]t is

23 certainly possible that petitioner possessed the marijuana only for personal use. However, under

24 AEDPA standards, it was reasonable for the [CDCR] and state courts to find that ‘some evidence’

25 existed sufficient to demonstrate that petitioner violated Cal. Code Regs. tit. 15, § 3016(c)).

26 Based on the foregoing, the undersigned concludes that the prison disciplinary finding that

27 Petitioner was guilty of distribution of a controlled substance in an institution/facility was

28 supported by “some evidence” and was not unreasonable in light of the minimally stringent

1 nature of the standard of proof. See Hill, 472 U.S. at 455-56 (“Ascertaining whether this standard

2 is satisfied does not require examination of the entire record, independent assessment of the

3 credibility of witnesses, or weighing of the evidence. Instead the relevant question is whether

4 there is any evidence in the record that could support the conclusion reached by the disciplinary

5 board.”).

6 Because the state court’s decision was not contrary to, or an unreasonable application of,

7 clearly established Supreme Court precedent, nor an unreasonable determination of the facts, the

8 undersigned finds ground two is without merit and should be denied.

9 IV. CERTIFICATE OF APPEALABIILTY

10 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district

11 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253;

12 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing § 2254 Cases requires a

13 district court to issue or deny a certificate of appealability when entering a final order adverse to a

14 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th

15 Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial

16 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires

17 the petitioner to show that “jurists of reason could disagree with the district court’s resolution of

18 his constitutional claims or that jurists could conclude the issues presented are adequate to

19 deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord Slack v.

20 McDaniel, 529 U.S. 473, 484 (2000). Here, Petitioner has not made a substantial showing of the

21 denial of a constitutional right. Thus, the undersigned recommends that the court decline to issue

22 a certificate of appealability.

23 Accordingly, it is RECOMMENDED:

24 1. Petitioner be denied all relief on his Petition. (Doc. No. 1).

25 2. Petitioner be denied a certificate of appealability.

26 NOTICE TO PARTIES

27 These findings and recommendations will be submitted to the United States district judge

28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14)

1 | days after being served with these findings and recommendations, a party may file written

2 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

3 | Findings and Recommendations.” Parties are advised that failure to file objections within the

4 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

5 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

6

Dated: _ June 29, 2022 law □□□ foareA Zacks

8 HELENA M. BARCH-KUCHTA

9 UNITED STATES MAGISTRATE JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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