Dunn v. Swarthout
| Decision Date | 29 August 2013 |
| Docket Number | No. 2: 11-cv-2731 JAM GGH P,2: 11-cv-2731 JAM GGH P |
| Court | U.S. District Court — Eastern District of California |
| Parties | JOHN DUNN, Petitioner, v. GARY SWARTHOUT, et al., Respondents. |
Petitioner, a state prisoner proceeding pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On September 26, 2012, the district court adopted this court's findings and recommendations, denied respondent's motion to dismiss for failure to state grounds for federal habeas relief, and ordered an answer. Respondent filed an answer on November 20, 2012, and petitioner filed a traverse on December 26, 2012. By order of April 29, 2013, the district court adopted the findings and recommendations of March 7, 2013, and denied petitioner's motion for preliminary injunction. After carefully considering the record, the court has determined that an evidentiary hearing is warranted on the witness issue. The petition should be denied with respect to the remaining issues. Also before the court is petitioner's request to file a supplemental petition. That request is denied.
Petitioner challenges a prison disciplinary guilty finding for fighting that resulted in 61 days of credit loss, which petitioner also claims could lead to a seven-to-fifteen-year denial by the Board of Parole Hearings (BPH). (Petition, at doc. no. 1, p. 1.)
According to the Rules Violation Report, on May 11, 2010 petitioner and his cellmate, inmate Miller, were interviewed based on an anonymous note found in the outgoing mail. At the time of the interview, Dunn had visible injuries consistent with having been in a fight. Petitioner admitted to having been in a physical altercation with Miller on May 8, 2010. A medical clearance was then conducted which indicated that petitioner had a bruised right eye and bruised right lower leg. Inmate Miller was then interviewed and he admitted to the physical altercation with petitioner, but did not recall the date. A medical evaluation of Miller was then conducted and he exhibited no injuries. Both inmates stated that this issue was resolved and agreed they could coexist on the same yard without further incident. (Petn., Ex. A.)
Petitioner insists that he was the victim of this attack, and that evidence included a declaration by one of his attackers which states that petitioner had refused to fight with another Asian inmate, which initiated this incident. (Doc. no. 1 at 28.) Petitioner claims that his cellmate was ordered to attack him because he had refused to fight the Asian inmate who had reportedly struck or poked his finger in petitioner's face. (Id. at 30-31.)
When petitioner was interviewed after the altercation, he was told by a sergeant that "he could make 'this whole thing go away if we just signed a Marriage Chrono'" and that it would just be placed in his C file. (Id. at 32.) If petitioner refused to agree to this resolution, he was informed that he would be placed in the hole, and that when the investigative officer finished, it would not look good for petitioner when he went before the BPH in a few weeks. When the chrono was finally presented to petitioner to sign, he realized for the first time that he would be receiving a 115. He was informed, "well you can sign it or you can go to the whole." (Id. at 33.)
Petitioner claims that at the disciplinary he was prevented from introducing a declaration signed by inmate Miller which stated that petitioner was indeed the victim. He further contends that there was ample evidence to demonstrate that petitioner was the victim in this case and that the senior hearing officer ("SHO") should have appointed an investigative employee if he did not want to investigate the incident. Petitioner lastly alleges that the SHO was not impartial and had determined that petitioner was guilty before he entered the disciplinary hearing, based on his statement to petitioner denying the admission of Miller as a witness, and telling petitioner that he was guilty and that he was done with the hearing. (Id. at 45.)
Petitioner alleges various due process violations regarding the disciplinary hearing and finding. (Id.) The grounds for relief are: (1) that the prison denied due process rights by failing to allow inmate Miller be a witness at petitioner's disciplinary hearing, despite petitioner's written request; (2) that the prison's failure to appoint an investigative employee violated petitioner's right to a fair hearing; and (3) that prison officials did not conduct the disciplinary hearing in an impartial manner, thus violating the due process clause.1
On July 3, 2013, petitioner filed a motion to submit a supplemental brief because of certain events which have occurred since the original habeas petition was filed. He claims that in March, 2012, he was attacked by inmate Axley and inmate Degaton. He states that "[t]his happened because Axley became aware Dunn had named him as the main perpetrator in the original petition." Petitioner claims that as a result he had to be transferred from CSP-Solano to San Quentin State Prison for his safety. At the disciplinary hearing concerning this incident, petitioner claims that the prison committed similar due process violations in refusing to permit witnesses, and that the decision maker was biased. This motion contains another declaration byinmate Miller, attempting to clarify his previous declaration submitted with the habeas petition, which restates the information previously set forth and recounts a conversation between him and petitioner just after the 2010 disciplinary.
This motion pertains to a separate incident and is therefore of little relevance to the initial attack/altercation which is at issue in this habeas petition. Moreover, it constitutes a new claim which has not been exhausted. Petitioner is advised that if he seeks to contest the handling of a later disciplinary hearing, he should file a new habeas petition. Petitioner's motion is denied.
The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:
As a preliminary matter, the Supreme Court has recently held and reconfirmed "that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been 'adjudicated on the merits.'" Harrington v. Richter, 131 S. Ct. 770, 785 (2011). Rather, "when a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 784-785, citing Harrisv. Reed, 489 U.S. 255, 265, 109 S. Ct. 1038 (1989) (). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785.
The Supreme Court has set forth the operative standard for federal habeas review of state court decisions under AEDPA as follows: "For purposes of § 2254(d)(1), 'an unreasonable application of federal law is different from an incorrect application of federal law.'" Harrington, supra, 131 S. Ct. at 785, citing Williams v. Taylor, 529 U.S. 362, 410, 120 S. Ct. 1495 (2000). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 786, citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140 (2004). Accordingly, "a habeas court must determine what arguments or theories supported or . . could have supported[] the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. "Evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.'" Id. Emphasizing the stringency of this standard, which "stops short of imposing a complete bar of federal court relitigation of claims already rejected in state court proceedings[,]" the Supreme Court has cautioned that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id., citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S. Ct. 1166 (2003).
The undersigned also finds that the same deference is paid to the factual determinations of state courts. Under § 2254(d)(2), factual findings of the state courts are presumed to be correct subject only to a review of the record which demonstrates that the factual finding(s) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." It makes no sense to interpret"unreasonable" in § 2254(d)(2) in a manner different from that same word as it appears in § 2254(d)(1) - i.e.,...
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