1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 20-CV-447 JLS (DEB)
12 ORDER: (1) SUSTAINING IN PART 13 DAVAUGHN LOVE, AND OVERRULING IN PART PETITIONER’S OBJECTIONS, 14 Petitioner, (2) ADOPTING REPORT AND 15 v. RECOMMENDATION, (3) DENYING PETITION FOR 16 RAYMOND MADDEN, et al., WRIT OF HABEAS CORPUS, AND 17 Respondents. (4) DENYING CERTIFICATE OF APPEALABILITY 18
19 (ECF Nos. 1, 12, 13) 20 21 Presently before the Court are Petitioner Davaughn Love’s (“Petitioner”) Petition 22 for Writ of Habeas Corpus (“Pet.,” ECF No. 1), Respondent Raymond Madden’s 23 (“Respondent”) Answer thereto (“Answer,” ECF No. 7), Respondent’s Notice of 24 Lodgment (“Lodgment,” ECF No. 8), and Petitioner’s Traverse (“Traverse,” ECF No. 11). 25 Also before the Court is Magistrate Judge Daniel E. Butcher’s Report and 26 Recommendation (“R&R,” ECF No. 12) advising the Court to deny the Petition, as well as 27 Petitioner’s Objections to the R&R (“Objs.,” ECF No. 13) and Respondent’s Reply to 28 Petitioner’s Objections (“Reply,” ECF No. 14). Having carefully considered the Petition, 1 Magistrate Judge Butcher’s R&R, the Parties’ arguments, and the law, the Court 2 SUSTAINS in part and OVERRULES in part Petitioner’s Objections, ADOPTS the 3 R&R, DENIES the Petition, and DENIES a Certificate of Appealability. 4 BACKGROUND 5 Magistrate Judge Butcher’s R&R contains a thorough and accurate recitation of the 6 relevant facts and procedural history. See R&R at 2–3. However, given that Petitioner 7 apparently objects to the R&R’s recitation of the relevant facts, see Objs. at 2, this Court 8 independently summarizes the key facts. 9 On the afternoon of January 21, 2019, Correctional Officer Beltran was conducting 10 a security check at Centinela State Prison when he claimed to “detect[] a strong pungent 11 odor of alcohol” from Petitioner’s cell. Pet. at 17; see also id. at 30 (1st Rules Violation 12 Report (“1st RVR”) at 1). Correctional Officer Beltran signaled the control booth officer 13 to open the door to Petitioner’s cell, but the door would not open. Pet. at 17. Petitioner 14 claims the door would not open because of electric problems. Id. Correctional Officer 15 Beltran’s 1st RVR states the door would not open “as Love held the door shut and stated 16 ‘there is nothing in here’, and appeared to be securing the cell door with an inmate 17 manufactured door stopper.” 1st RVR at 1. 18 Correctional Officer Beltran indicated in his 1st RVR that he observed Petitioner 19 reaching into his locker to retrieve a smart phone and a cell phone charger. Pet. at 18; see 20 also 1st RVR at 1. Petitioner alleges “there is no evidence of this observation, nor was 21 there evidence received from the toilet system from outside the prison that petitioner 22 flushed any of these appliances down the toilet.” Pet. at 18. The 1st RVR indicates that 23 Correctional Officer Beltran again signaled the control booth officer to open to cell door, 24 but the door still would not open because of the door stopper. 1st RVR at 1. The 1st RVR 25 states that Correctional Officer Beltran then “observed as Love began to break the cell 26 phone and flush it down the toilet.” Id. According to the 1st RVR, Correctional Officer 27 Beltran then successfully opened the cell door. Id. He ordered Petitioner to stop, but 28 Petitioner did not obey and “was able to flush every piece of the cell phone and charge 1 [sic].” Id. According to Petitioner, Correctional Officer Beltran did not seek to recover 2 the allegedly disposed of contraband. Pet. at 18. 3 Petitioner claims that Correctional Officer Beltran ordered Petitioner and his 4 cellmate to exit the cell. Id. at 17. The 1st RVR claims that Petitioner’s cell was “solely 5 occupied by Inmate Love,” and that Correctional Officer Beltran ordered Petitioner to exit 6 the cell. 1st RVR at 1. Correctional Officer Beltran performed a clothed body search of 7 Petitioner for contraband and weapons, which was negative. Id. While Correctional 8 Officer Booth’s partner “provided coverage,” id., Correctional Officer Beltran entered and 9 searched Petitioner’s cell, where he “allegedly discovered white lighting [sic] alcohol in a 10 folger container,” Pet. at 17–18. The 1st RVR indicates that Correctional Officer Beltran 11 discovered approximately one gallon of inmate manufactured alcohol “in multiple coffee 12 containers.” 1st RVR at 1. Correctional Officer Beltran neither conducted a field test on 13 the alleged alcohol nor preserved it for laboratory testing. Pet. at 18. The 1st RVR 14 indicates that, “[b]ecause [Correctional Officer Beltran] ha[s] discovered Inmate 15 Manufactured Alcohol on numerous occasions, [he] was able to identify the clear liquid 16 substance to be inmate manufactured alcohol,” and accordingly Correctional Officer 17 Beltran disposed of the alcohol by flushing it down the toilet. 1st RVR at 1. Correctional 18 Officer Beltran discovered no other contraband or weapons in Petitioner’s cell. Id. 19 The 1st RVR, for possession of alcohol, was served on Petitioner on January 22, 20 2019. See Pet. at 34 (1st Disciplinary Hearing Results (“1st DHR”) at 1). A second RVR, 21 with a substantively identical recitation of the relevant facts, see Pet. at 45 (2d Rule 22 Violation Report (“2d RVR”)), for possession of a cellular phone, was also served on 23 Petitioner on January 22, 2019, see Pet. at 49 (2d Disciplinary Hearing Results (“2d DHR”) 24 at 1). 25 A disciplinary hearing on both violations was held on January 27, 2019. See 1st 26 DHR at 1; 2d DHR at 1. Petitioner pleaded not guilty to both violations and submitted a 27 written statement, 1st DHR at 4; 2d DHR at 4, but the Senior Hearing Officer (“SHO”) 28 found Petitioner guilty as charged as to both violations “based on a preponderance of 1 evidence,” 1st DHR at 5; 2d DHR at 5. The SHO “considered the inmate plea and written 2 statement,” but found that “Officer A. Beltran’s report . . . outweighs LOVE’s claim of 3 innocence.” Id. Although the SHO found Petitioner’s statement “compelling,” the SHO 4 noted that “[Petitioner] failed to provide any evidence which would outweigh the facts 5 contained in the RVR to prove his innocence,” providing “no evidence or mitigating 6 circumstances to refute the reporting employee’s written report.” Id. The disposition for 7 the alcohol possession violation was a credit loss of 120 days, plus other revoked 8 privileges. 1st DHR at 5–6. The disposition for the cell phone possession violation was a 9 credit loss of 90 days, plus other revoked privileges. 2d DHR at 6. At the conclusion of 10 the hearing, Petitioner was advised of his right to appeal. 1st DHR at 8; 2d DHR at 8. On 11 February 5, 2019, the Chief Disciplinary Officer (“CDO”) affirmed the hearing results on 12 the alcohol possession violation. 1st DHR at 8–9. On February 27, 2019, the CDO 13 affirmed the hearing results on the cell phone possession violation. 2d DHR at 8–10. 14 On April 17, 2019, Petitioner’s Second Level Appeal Response was denied. Pet. at 15 19; see also Pet. at 60 (2d Level Appeal Response (“2d LAR”) at 1). Petitioner claimed 16 that the two RVRs impermissibly “stacked” charges derived from the same incident, and 17 that there was no evidence to suggest that the substance discovered in his cell was alcohol. 18 2d LAR at 1. As to Petitioner’s evidentiary arguments, the 2d LAR noted that “the 19 institution is not obligated to test (field or lab) the alcohol as it is not classified as a 20 controlled substance.” Id. at 3. Thus, “[t]he verification by the RE that the substance is 21 actually alcohol is sufficient evidence to support a guilty finding for ‘Possession of 22 Alcohol’ to a preponderance of evidence threshold.” Id. Ultimately, the 2d LAR 23 concluded that “[t]he SHO’s findings are consistent with the evidence and substantiate the 24 charge to preponderance threshold,” and “appellant was provided appropriate due process 25 and administrative protections.” Id. at 4. As to the stacking issue, the 2d LAR concluded 26 that there was no clear nexus between the cell phone and alcohol possession infractions, 27 and accordingly finding Petitioner guilty on both RVRs and imposing separate credit losses 28 was not “stacking.” Id. at 3–4. 1 Petitioner’s Third Level Appeal Decision, dated July 12, 2019, also denied 2 Petitioner’s appeal. Pet. at 69 (3d Level Appeal Decision (“3d LAD”) at 1). Petitioner 3 again requested dismissal of the RVRs due to failure to test the alleged alcohol and 4 allegedly impermissible stacking. 3d LAD at 1. Again, as to Petitioner’s evidence-based 5 arguments, the 3d LAD stated: 6 The examiner thoroughly reviewed all documents relative to the appellant’s RVRs and finds that the Senior Hearing Officer 7 found the appellant guilty based upon a preponderance of 8 evidence and assessed a credit loss commensurate with the credit forfeiture schedule. The TLR finds that the appellant was 9 afforded all the required due process protections and all time 10 constraints were complied with. 11 Id. As to the stacking issue, the 3d LAD noted that, “[a]lthough multiple violations may 12 be related to an original event, violations without a nexus may be reported individually,” 13 and concluded “that Centinela State Prison (CEN) staff acted appropriately” in finding no 14 stacking. Lodgment Ex. 8 at 1–2.1 15 On August 8, 2019, Petitioner filed a petition for writ of habeas corpus in the 16 Superior Court of California. Pet. at 76 (Order Denying Petition for Writ of Habeas Corpus 17 (“Sup. Ct. Order”) at 1). As to Petitioner’s arguments concerning the sufficiency of the 18 evidence, the Superior Court concluded that “there is some evidence in the record that 19 could support the conclusion reached by the disciplinary board”—namely, the RVRs, 20 “which indicate[] that the officer detected a ‘strong pungent odor of alcohol’ and that the 21 officer noted he had discovered inmate manufactured alcohol on numerous occasions and 22 identified the substance found in Petitioner’s cell as inmate manufactured alcohol.” Sup. 23 Ct. Order at 1. The Superior Court also noted that Petitioner’s argument that the RVR for 24 possession of a cell phone was erroneous “was not raised in the administrative appeals until 25 the third level” and thus unexhausted. Id. at 2. Finally, the Superior Court determined that 26 27 28 1 The 3d LAD submitted by Petitioner as an exhibit to his Petition appears to be missing the second page; 1 Petitioner did not meet his heavy burden to plead sufficient facts to establish that the two 2 rules violations were impermissibly stacked, as the two violations were not related “beyond 3 the fact that the possession of the separate types of contraband were discovered in the same 4 cell search.” Id. 5 Petitioner subsequently appealed to the Court of Appeal. Pet. at 80 (“App. Ct. 6 Order” at 1). Again, the Court of Appeal found that “[Petitioner] has not established the 7 evidence was insufficient to support the disciplinary decisions.” App. Ct. Order at 2. The 8 Court of Appeal concluded that “[t]he written report of the prison guard, who searched 9 Love’s cell and found what his experience caused him to recognize as inmate- 10 manufactured alcohol and who saw Love retrieve and dispose of a cellular telephone and 11 charger, constitutes ‘some evidence’ to support the disciplinary hearing officer’s findings 12 that Love violated regulations.” Id. “Petitioner’s claims that the violations were fabricated 13 and that the contraband was not photographed or tested do not change this outcome—there 14 is some evidence, even if there is evidence to support Petitioner’s claims of innocence.” 15 Id. As to the stacking issue, the Court of Appeal noted: 16 [A]lthough the alcohol and cellular telephone were found during the same search, the violations did not involve an escalation of 17 one form of misconduct into a more serious form; and there is no 18 necessary connection between the two violations, since either could have occurred without the other. Love violated two 19 distinct regulations and was appropriately charged with and 20 punished for both violations. 21 Id. Thus, the Court of Appeal also denied the petition. Id. at 3. 22 The Supreme Court of California summarily denied Petitioner’s petition on January 23 22, 2020. See Pet. at 84 (“Supreme Ct. Order”). On March 9, 2020, Petitioner filed the 24 instant Petition in this Court. See generally Pet. Respondent answered on June 25, 2020, 25 see generally Answer, and Petitioner filed his traverse on September 8, 2020, see generally 26 Traverse. 27 / / / 28 / / / 1 On October 16, 2020, Magistrate Judge Butcher issued his R&R. See generally 2 R&R. Petitioner timely filed his Objections on October 29, 2020, see generally Objs., and 3 Respondent filed a timely reply on November 13, 2020, see generally Reply. 4 LEGAL STANDARD 5 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 6 court’s duties in connection with a magistrate judge’s report and recommendation. The 7 district court must “make a de novo determination of those portions of the report or 8 specified proposed findings or recommendations to which objection is made,” and “may 9 accept, reject, or modify, in whole or in part, the findings or recommendations made by the 10 magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 11 673–76 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). In the absence 12 of timely objection, however, the Court “need only satisfy itself that there is no clear error 13 on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72 14 advisory committee’s note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th 15 Cir. 1974)). 16 ANALYSIS 17 Liberally construed, the Petition raises two grounds for relief: (1) that the guilty 18 findings of the RVRs fail to comply with the “some evidence” standard of Superintendent 19 v. Hill, 472 U.S. 445 (1985); and (2) that the RVRs violate the California Department of 20 Corrections and Rehabilitation’s (“CDCR”) “stacking” policy. See Pet. at 6, 17–20. 21 Magistrate Judge Butcher’s R&R recommends that the Court deny the Petition. See 22 R&R at 8. Magistrate Judge Butcher first determined that federal habeas jurisdiction is 23 lacking, as Petitioner fails to state a cognizable claim for habeas relief. See id. at 4–6. 24 However, Magistrate Judge Butcher further concluded that the Petition fails on the merits, 25 as “some evidence” supported the RVRs. See id. at 6–7. Finally, Magistrate Judge Butcher 26 determined that the Petition was not amenable to conversion to a Section 1983 action, as 27 Petitioner failed to allege any personal conduct by Respondents Raymond Madden or 28 Xavier Becerra to hold them liable under Section 1983. See id. at 7. 1 Petitioner raises four objections to the R&R. First, “Petitioner OBJECTS to the 2 Magistrate Judge re-characterizing his Constitutional claim by rephrasing the claim and 3 then addressing ONLY part of the claim and/or an entirely different claim then [sic] what 4 was raised by the Petitioner, in his pleadings.” Objs. at 1–2. Second, Petitioner apparently 5 objects to the portion of the R&R that states “‘that the Petition does not state a cognizable 6 claim for [habeas relief]……Nettles control[s] here…’” Id. at 2 (quoting R&R at 4). Third, 7 “Petitioner OBJECTS to the Magistrate’s finding of fact based soley [sic] on the 8 Respondent’s Answer.” Id. Petitioner claims the facts pleaded in the Petition “would have 9 established that Nettles is misplaced here.” Id. Finally, “Petitioner OBJECTS to the 10 Magistrate’s addressing claims not raised in Petitioner’s § 2254 petition” and, apparently, 11 the R&R’s failure to address the “stacking” issue. Id. at 3. Specifically, Petitioner claims 12 that “[t]he Magistrate’s ‘R & R’ DOES NOT address the claim raised by the Petitioner,” 13 and “[]instead . . . states what the Respondent’s [sic] argued.” Id. Respondent filed a 14 Reply, arguing that Petitioners Objections, which provide no new substantive argument or 15 evidence to support his claims, should be overruled. See Reply at 2. 16 The Court reviews de novo those portions of Magistrate Judge Butcher’s R&R to 17 which Petitioner objects and reviews for clear error the remainder of the R&R. 18 I. Petitioner’s Objections 19 A. “Findings of Fact” 20 As an initial matter, Petitioner’s third objection seemingly objects to the way in 21 which the R&R summarized the relevant facts. See Objs. at 2. For example, Petitioner 22 argues that the R&R relied “solely on the Respondent’s answer” and did not consider facts 23 asserted by Petitioner, for example, the fact that Petitioner alleges that Correctional Officer 24 Beltran fabricated the incident giving rise to the two RVRs. Id. 25 To remedy Petitioner’s concerns, the Court has reviewed and summarized de novo 26 the relevant facts and procedural history, presenting both Petitioner’s arguments as well as 27 the findings of fact reflected in the administrative and court records. See supra at 2–6. 28 Accordingly, the Court SUSTAINS Petitioner’s objection as to the R&R’s factual 1 summary. However, the Court further notes that “[t]his Court gives deference to state court 2 findings of fact and presumes them to be correct; Petitioner may rebut the presumption of 3 correctness, but only by clear and convincing evidence.” Ortiz v. Madden, No. 18CV1058 4 LAB (MDD), 2018 WL 6601129, at *1 (S.D. Cal. Dec. 17, 2018) (citing 28 U.S.C. 5 § 2254(e)(1); Parle v. Fraley, 506 U.S. 20, 35-36 (1992)), report and recommendation 6 adopted, No. 18CV1058-LAB (JMA), 2019 WL 265128 (S.D. Cal. Jan. 18, 2019). 7 B. Failure to State a Cognizable Habeas Claim 8 Petitioner’s second objection is to the R&R’s finding that the Petition fails to state a 9 cognizable claim for habeas relief and that the Ninth Circuit’s decision in Nettles v. 10 Grounds, 830 F.3d 922 (9th Cir. 2016) (en banc), controls here. See Objs. at 2. In part, 11 Petitioner’s fourth objection contends that the R&R addresses claim(s) not raised by 12 Petitioner, presumably Respondent’s argument that Petitioner’s claims do not lie at the core 13 of federal habeas corpus. Id. at 3. 14 As an initial matter, Respondent was entitled to raise the argument that federal 15 habeas jurisdiction over Petitioner’s claims is lacking. See, e.g., Nettles, 830 F.3d 922 16 (state argued, and Ninth Circuit agreed, that habeas jurisdiction was lacking); DeBose v. 17 Madden, No. 20-CV-1132-MMA(WVG), 2020 WL 7240294, at *2–3 (S.D. Cal. Dec. 9, 18 2020) (agreeing with respondent that habeas jurisdiction was lacking over petition). While 19 Respondent’s argument perhaps would have been raised more appropriately by a motion 20 to dismiss rather than an answer, e.g., DeBose, 2020 WL 7240294, at *1–2 (recommending 21 granting of motion to dismiss where petition failed to raise cognizable habeas claim); 22 McCraw v. McDowell, No. 17CV1106-LAB (BLM), 2017 WL 5973412, at *4 (S.D. Cal. 23 Dec. 1, 2017) (same), report and recommendation adopted, No. 17CV1106-LAB (BLM), 24 2018 WL 378489 (S.D. Cal. Jan. 11, 2018), any defect in the way in which the argument 25 was raised procedurally is irrelevant, as Petitioner had a full and fair opportunity to respond 26 to the argument, see Traverse at 3–4, and this Court is nonetheless obligated to assess 27 whether it has habeas jurisdiction over Petitioner’s claims, see, e.g., Briggs v. Mayberg, 28 No. EDCV 08-554 DDP JWJ, 2009 WL 2568069, at *2 (C.D. Cal. Aug. 18, 2009) (citing 1 Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000); Cannon v. Thomas, No. CIV 2 06-613-TUC-CKJ, 2009 WL 259415, at *1 (D. Ariz. 2009)). 3 The Court independently finds that, as in Nettles, Petitioner’s claims fall outside the 4 core of habeas relief. “[I]f a state prisoner’s claim does not lie at ‘the core of habeas 5 corpus,’ it may not be brought in habeas corpus but must be brought, ‘if at all,’ under 6 § 1983.” Nettles, 830 F.3d at 934 (citing Preiser v. Rodriguez, 411 U.S. 475, 487 (1973); 7 Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011)). A claim lies at the core of habeas 8 corpus if it disputes “the fact or duration of the conviction or sentence,” id. at 934—in other 9 words, if it would “necessarily lead to [the petitioner]’s immediate or earlier release from 10 confinement,” id. at 935 (citing Skinner, 562 U.S. at 535 n.13). 11 Even accepting as true Plaintiff’s claim that Correctional Officer Beltran fabricated 12 the incidents in question and assuming that, as a result, both RVRs should be expunged 13 from Petitioner’s record, “[s]uccess on the merits of [Petitioner]’s claim would not 14 necessarily lead to immediate or speedier release because the expungement of the 15 challenged disciplinary violation would not necessarily lead to a grant of parole.” Nettles, 16 830 F.3d at 934–35. Numerous courts within this Circuit have found on similar facts that 17 the speculative effect of a loss of credits on a petitioner’s minimum eligible release date 18 and parole prospects, which are subject to myriad discretionary determinations, fails to 19 state a cognizable claim for habeas relief. See, e.g., Nettles, 830 F.3d at 934–35; DeBose, 20 2020 WL 7240294, at *2–3; McCraw v. McDowell, No. 17CV1106-LAB (BLM), 2017 21 WL 5973412, at *2 (S.D. Cal. Dec. 1, 2017), report and recommendation adopted, No. 22 17CV1106-LAB (BLM), 2018 WL 378489 (S.D. Cal. Jan. 11, 2018); Tam Steve Nguyen 23 v. Paramo, No. 17CV521 WQH (NLS), 2017 WL 3309804, at *1–2 (S.D. Cal. Aug. 3, 24 2017), report and recommendation adopted, No. 17-CV-0521-WQH-NLS, 2017 WL 25 4272340 (S.D. Cal. Sept. 26, 2017); Gomez v. Montgomery, No. 18-CV-2607- 26 CAB(WVG), 2019 WL 3034903, at *3–4 (S.D. Cal. July 11, 2019), report and 27 recommendation adopted, No. 18CV2607-CAB-WVG, 2019 WL 3974069 (S.D. Cal. Aug. 28 22, 2019). Accordingly, to the extent Petitioner objects to the R&R’s determination that 1 he fails to state a cognizable claim for federal habeas relief, the Court OVERRULES 2 Petitioner’s objection and ADOPTS the R&R’s finding that Petitioner fails to state a 3 cognizable claim for habeas relief on his due process claim. 4 C. R&R’s Re-Characterization of and Failure to Address Petitioner’s Claims 5 Petitioner’s first objection is that the R&R “re-characterized” his claim and then 6 addressed only part of his claim, or different claims than those raised in his pleadings. 7 Objs. at 1–2. In a similar vein, Petitioner’s fourth objection argues that the R&R “DOES 8 NOT address the claim raised by the Petitioner.” Id. at 3. The Court assumes this is a 9 reference to the statement in the R&R that “Petitioner did not raise[] the argument that the 10 two RVRs were impermissibly ‘stacked’ in this Petition,” see R&R at 3 n.3, and the 11 resultant absence of any analysis of the “stacking” argument in the R&R. 12 Construing the Petition liberally, the Court agrees that the Petition raises a 13 “stacking” claim. Although the single ground for relief as stated in the Petition 14 superficially raises only a single issue, “that the ‘some evidence’ application apply’s [sic] 15 in this case under Superintendent v. Hill (1985) 472 U.S. 445, and the case must be reverse 16 [sic],” Pet. at 17, the supporting facts make clear that Petitioner contends that the two 17 RVRs, “derived from the same incident,” “are in direct violation of the stacking 18 Memorandum Division,” id. at 18–19. Both the Superior Court and the Court of Appeal 19 analyzed this claim despite it being somewhat buried in the Petition. See Sup. Ct. Order; 20 App. Ct. Order. Accordingly, the Court SUSTAINS Petitioner’s objection that the R&R 21 failed to fully analyze his claims on the merits. 22 Nonetheless, reviewing the merits of Petitioner’s claims de novo, the Court 23 concludes that Petitioner’s claims nonetheless fail on the merits. 24 1. Due Process Claim 25 First, the Court finds that due process was satisfied here, as the disciplinary hearing 26 results were supported by “some evidence.” While the Court appreciates Petitioner’s 27 frustrations, ultimately, Hill’s “some evidence” standard is a low bar satisfied by the facts 28 / / / 1 before this Court. See, e.g., Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987) (“The Hill 2 standard is minimally stringent.”). 3 In order to satisfy due process, a prison disciplinary conviction must be supported 4 by “some evidence.” Superintendent v. Hill, 472 U.S. 445, 455 (1985). “Ascertaining 5 whether this standard is satisfied does not require examination of the entire record, 6 independent assessment of the credibility of witnesses, or weighing of the evidence. 7 Instead, the relevant question is whether there is any evidence in the record that could 8 support the conclusion reached by the disciplinary board.” Id. at 455–56 (citations 9 omitted). “That evidence can even be characterized as ‘meager’ and still be 10 constitutionally adequate.” Henry v. Cate, No. 12-CV-1760-LAB-WMC, 2014 WL 11 197768, at *1 (S.D. Cal. Jan. 14, 2014) (citing Hill, 472 U.S. at 457). 12 Courts within the Ninth Circuit have found that a correctional officer’s 13 uncorroborated eyewitness testimony can be “some evidence” adequate to satisfy due 14 process. See, e.g., Henry, 2014 WL 197768, at *2 (“There is no constitutional requirement 15 that the statement of Officer Sanchez be corroborated.”); Fernandez v. Gonzalez, No. 16 EDCV 13-0551-DDP RNB, 2013 WL 5325739, at *3 (C.D. Cal. Sept. 20, 2013) (“[T]he 17 Court finds that it would not have been objectively unreasonable for the California courts 18 to conclude that the SHO was entitled to find Officer Borboa’s statements credible and 19 base the determination of guilt solely on those statements. Officer Borboa’s statements 20 provided at least ‘meager’ evidence that petitioner had constructive possession of the 21 cellular phone charger.”). The SHO found, on a preponderance of the evidence, that 22 Petitioner was guilty as charged as to both violations, finding that the facts and evidence 23 contained in the RVRs outweighed Petitioner’s not guilty plea and written statement. 1st 24 DHR at 5; 2d DHR at 5. Thus, Correctional Officer Beltran’s RVRs, which contain his 25 personal observations of the violations, are “some evidence” to support the SHO’s 26 disposition. Petitioner’s claims that the incident was fabricated and that the contraband 27 should have been tested or documented were raised and considered, and do not change the 28 ultimate fact that “some evidence” exists to support the disciplinary hearing results. It is 1 not the province of this Court to reweigh the evidence or the credibility of Correctional 2 Officer Beltran and Petitioner. The Court is satisfied that the low bar for due process was 3 satisfied here, and accordingly, the Court ADOPTS the R&R’s recommendation that 4 habeas relief is not warranted on the merits of Petitioner’s due process claim. 5 2. “Stacking” Claim 6 The Court also finds that Petitioner is not entitled to relief on his “stacking” claim. 7 As an initial matter, it is not clear that the Court has habeas jurisdiction over this claim. 8 “Federal habeas review is limited to determining whether there has been a violation of the 9 Constitution, laws, or treaties of the United States.” Rivera v. Chavez, No. EDCV 11-1638- 10 JAK JEM, 2013 WL 1010534, at *6 (C.D. Cal. Feb. 8, 2013) (citing 28 U.S.C. §§ 2254(a), 11 (d)(1)), report and recommendation adopted, No. EDCV 11-1638-JAK JEM, 2013 WL 12 1010486 (C.D. Cal. Mar. 13, 2013). Other district courts within the Ninth Circuit have 13 consistently found that such “stacking” claims fail to state a cognizable claim for federal 14 habeas relief. See, e.g., McDonald v. Holland, No. ED CV 14-2499-JAK E, 2015 WL 15 3967749, at *9 (C.D. Cal. May 15, 2015) (“Petitioner’s claim that his disciplinary 16 convictions and sentences violated state prison policies against ‘stacking’ does not state 17 any cognizable claim for federal habeas relief.” (citations omitted)), report and 18 recommendation adopted, No. ED CV 14-2499-JAK E, 2015 WL 4018647 (C.D. Cal. June 19 30, 2015); Rivera, 2013 WL 1010534, at *6 (finding claim CDCR violated state statute 20 prohibiting double jeopardy by “stacking” two RVRs “should be denied for failing to state 21 a federal constitutional claim”); Davis v. Haviland, No. 2:10-CV-1029 KJM DAD, 2014 22 WL 794327, at *11 (E.D. Cal. Feb. 27, 2014) (where petitioner brought stacking claim, 23 concluding “petitioner is not entitled to federal habeas relief on any claim that his 24 disciplinary convictions violated either state law or California regulations governing 25 prisons”). 26 However, even assessing this claim on the merits, the Court finds the two RVRs 27 were not impermissibly “stacked.” Petitioner’s claim relies on a 1993 California 28 / / / 1 Department of Corrections policy memorandum entitled “Clarification of ‘Stacking’ as 2 Related to the Inmate Disciplinary Process.” See Pet. at 71 (“Stacking Mem.”). The 3 Stacking Memorandum defines “stacking” “as charging an inmate with multiple violations 4 (CDC Form 115s) for an event which warrants a single report.” Stacking Mem. at 1. The 5 policy “is that when an event starts with one type of misconduct and escalates to a point 6 where a more serious violation occurs, the most serious of these consecutive or related 7 violations will be the one charged,” while “[t]he other actions shall be noted in the report 8 as supporting evidence.” Id. “In deciding which violation to charge, the reviewing 9 authority should determine whether a nexus between the violations exists.” Id. 10 The Stacking Memorandum provides an exemplary fact pattern to illustrate the 11 policy. Part of the example involves an officer searching an inmate’s property following 12 an incident and discovering “an inmate manufactured weapon, a bindle of heroin, and a 13 hypodermic kit,” with the inmate refusing to provide a urine sample to test for controlled 14 substances. Id. at 2. The Stacking Memorandum concludes that both the weapon and the 15 controlled substance must be reported, as the two are “not related” and “[t]here is no nexus 16 between these two items.” Id. However, the hypodermic kit and the inmate’s refusal to 17 provide a urine sample are directly tied to the controlled substance charge and therefore 18 should “become lesser included elements of th[at] charge.” Id. 19 Similar to the Stacking Memorandum’s exemplar, Petitioner’s cell phone possession 20 and alcohol possession charges are “not related” and have no “nexus.” Id. Although both 21 violations stemmed from the same search of Petitioner’s cell, there is no connection 22 between Petitioner’s alleged possession of the cell phone and his alleged possession of the 23 inmate-manufactured alcohol. Although the alcohol offense, as a Division C offense, was 24 more serious than the cell phone offense, a Division D offense, the two offenses do not 25
26 2 CDCR was known as the California Department of Corrections from 1951 until 2004, when it was 27 renamed. See California Department of Corrections and Rehabilitation, WIKIPEDIA, available at 28 https://en.wikipedia.org/wiki/California_Department_of_Corrections_and_Rehabilitation (last accessed 1 represent an “escalation” resulting in the occurrence of “a more serious violation.” Id. at 2 1. Rather, the two violations are separate offenses not otherwise tied to one another beyond 3 the fact that they stemmed from the same cell search. Accordingly, the Court finds that, 4 even if the “stacking” claim states a cognizable claim for habeas relief, it fails on the merits. 5 Accordingly, the Court ADOPTS the R&R’s conclusion that the Petition fails to 6 state a claim for federal habeas relief on the merits. 7 II. Remainder of the R&R 8 Petitioner does not object to the remainder of Magistrate Judge Butcher’s R&R, 9 including, inter alia, the R&R’s conclusion that the Petition is not amenable to conversion 10 to a Section 1983 action, see R&R at 7. Having found no clear error, the Court ADOPTS 11 the remainder of Magistrate Judge Butcher’s R&R. 12 CERTIFICATE OF APPEALABILITY 13 When a district court enters a final order adverse to the applicant in a habeas 14 proceeding, it must either issue or deny a certificate of appealability (“COA”). See Rule 15 11(a) of the Rules Governing Section 2254 Cases. A COA is required to appeal a final 16 order in a habeas proceeding. 28 U.S.C. § 2253(c) (1)(A). A COA is appropriate only if 17 the petitioner makes “a substantial showing of the denial of a constitutional right.” Miller– 18 El v. Cockrell, 537 U.S. 322, 336 (2003). A “substantial showing” requires a 19 demonstration that “‘reasonable jurists would find the district court’s assessment of the 20 constitutional claims debatable or wrong.’” Beaty v. Stewart, 303 F.3d 975, 984 (9th Cir. 21 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). The Court concludes that 22 Petitioner has not met this standard and accordingly DENIES a COA. 23 CONCLUSION 24 In light of the foregoing, the Court: 25 1. SUSTAINS in part and OVERRULES in part Petitioner’s Objections (ECF 26 No. 13); 27 2. ADOPTS the R&R’s conclusions that the Petition is not cognizable in habeas, 28 that Petitioner’s due process claim fails on the merits, and that the Petition is not amenable 1 || to conversion to a Section 1983 action (ECF No. 12); 2 3. FINDS that Petitioner’s “stacking” claim also fails, both in stating a 3 || cognizable claim for habeas relief and on the merits; 4 4. DENIES the Petition (ECF No. 1); 5 5. ORDERS the Clerk of the Court to enter judgment in favor of Respondent 6 against Petitioner and close the file; and 7 6. DENIES a Certificate of Appealability. 8 IT IS SO ORDERED. 9 Dated: March 4, 2021 jae L. Lo memeaite- 10 on. Janis L. Sammartino United States District Judge 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28