# Ornelas v. Spearman

> District Court, S.D. California · July 9, 2020

URL: https://www.frixlaw.com/law-library/cases/10081495

## Case

- **Court:** District Court, S.D. California
- **Decided:** July 9, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 DAVID MARTINEZ ORNELAS, Case No.: 18-CV-1666-GPC-WVG

12 Petitioner,
ORDER ADOPTING REPORT AND
13 v. RECOMMENDATION DENYING
PETITION FOR WRIT OF HABEAS
14 M.E. SPEARMAN,
CORPUS
15 Respondent.
[ECF No. 14]
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Petitioner David Martinez Ornelas (“Petitioner”), a federal inmate proceeding pro
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se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging a
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determination following a prison disciplinary proceeding finding that Petitioner was
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guilty of battery on an inmate with a weapon arising from a fight that occurred on August
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11, 2015. ECF No. 1. Respondents filed an answer on February 19, 2019. ECF No. 11.
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Petitioner filed a traverse on March 21, 2019. ECF No. 13. Presently before the Court is
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a Report and Recommendation (“Report”) issued by Magistrate Judge William V. Gallo
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recommending the Court deny Petitioner’s petition. Doc. No. 14. Neither party has filed
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objections to the Magistrate Judge’s Report. After a thorough review of the issues and
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for the reasons set forth below, this Court ADOPTS the Magistrate Judge’s Report and
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DENIES Petitioner’s petition.
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1 Federal Rules of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a
2 district judge’s duties in connection with a magistrate judge’s report and
3 recommendation. The district judge must “make a de novo determination of those
4 portions of the report to which objection is made,” and “may accept, reject, or modify, in
5 whole or in part, the finding or recommendations made by the magistrate judge.” 28
6 U.S.C. § 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).
7 But “[t]he statute makes it clear that the district judge must review the magistrate judge’s
8 findings and recommendations de novo if objection is made, but not otherwise.” United
9 States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in
10 original); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003)
11 (concluding that where no objections were filed, the district court had no obligation to
12 review the magistrate judge’s report). “Neither the Constitution nor the statute requires a
13 district judge to review, de novo, findings and recommendations that the parties
14 themselves accept as correct.” Id. “When no objections are filed, the de novo review
15 is waived.” Marshall v. Astrue, No. 08cv1735-MJL, 2010 WL 841252, at *1 (S.D. Cal.
16 Mar. 10, 2010) (adopting report in its entirety without review because neither party filed
17 objections to the report despite the opportunity to do so).
18 In this case, neither party has timely filed objections to the Magistrate Judge’s
19 Report. Consequently, the Court may adopt the Report on the basis that it is unopposed.
20 See Reyna-Tapia, 328 F.3d at 1121. Having reviewed the Report, the Court finds that the
21 Report is thorough, well–reasoned and contains no clear error. In Superintendent v. Hill,
22 472 U.S. 445 (1985), the Supreme Court considered the deference courts must afford a
23 prison disciplinary board's finding that a prisoner committed an infraction where the
24 punishment was the loss of good time credits. In Hill, the Court held that if there is even
25 “some evidence” to support the prison's disciplinary decision, the requirements of due
26 process are satisfied. Id. at 455. The Hill standard is minimally stringent. The Court
27 stated that “the relevant question is whether there is any evidence in the record that could
28 support the conclusion reached by the disciplinary board.” Id. at 455–56 (emphasis
1 added). Here, petitioner contests the reliability of the evidence, arguing that the medical
2 report that noted puncture and slash wounds on the victim is fabricated evidence. Pet. at
3 15, 18. Moreover, Petitioner argues the evidence is insufficient because (1) there were no
4 weapons found; (2) all officers reported seeing Petitioner fight with fists; (3) the victim
5 said no weapon was used; and (4) a fence caused the victim’s injuries. See id. at 18-24.
6 Construing the Petition liberally, another possible interpretation of Petitioner’s claim is
7 that he believes the disciplinary committee improperly based its decision on
8 circumstantial evidence. See Lopez v. Uribe, No. 11cv00216, 2012 WL 2367554, at *6
9 n.1 (S.D. Cal. Apr. 11, 2012) (noting that a claim that a prison Disciplinary Committee
10 based their decision on “unreliable evidence” would “essentially be duplicative” of a
11 claim that they improperly based their decision on circumstantial evidence). The Hill
12 standard, however, does not require the Disciplinary Committee to base its findings on
13 direct evidence. See Hill, 472 U.S. at 456–57 (upholding a finding that three inmates
14 committed assault even though “no direct evidence identifying any one of the three
15 inmates as the assailant” was presented). Moreover, this interpretation of Hill as finding
16 circumstantial evidence sufficient to meet the “some evidence” standard is supported by
17 Ninth Circuit precedent. See Castro v. Terhune, 712 F.3d 1304, 1315 (9th Cir. 2013)
18 (finding that evidence was circumstantial and “could support competing inferences” did
19 not preclude the “some evidence” [Hill] standard from being met); Lathan v. Marshall,
20 977 F.2d 589 at *1 (9th Cir. 1992) (unpublished) (“Hill indicates that the requisite
21 quantum of evidence can be circumstantial.”); Embrey v. Menke, 881 F.2d 1083 at *2
22 (9th Cir. 1989) (unpublished) (finding that circumstantial evidence linking petitioner to
23 the alleged infraction was sufficient evidence upon which to base the decision of the
24 disciplinary committee). Accordingly, the Court hereby (1) ADOPTS the Magistrate
25 Judge’s Report in its entirety, and (2) DENIES the Petition.
26 Moreover, a certificate of appealability may issue only if the applicant makes a
27 substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
28 Petitioner has not made this showing. Because reasonable jurists would not find the
1 Court’s assessment of the claims debatable or wrong, the Court DECLINES to issue a
2 ||certificate of appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
3 IT IS SO ORDERED.
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5 ||Dated: July 9, 2020 2 □
6 Hon. athe Ck
7 United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10081495. Public record. Not legal advice.