Opinion
CV 21-00538-PHX-ROS (MHB)
11-16-2021
Michael Lynn Cook, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Michelle H. Burns United States Magistrate Judge
TO THE HONORABLE ROSLYN O. SILVER, UNITED STATES DISTRICT COURT:
Petitioner Michael Lynn Cook, who is confined in the Arizona State Prison Complex-Eyman, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer on June 8, 2021 (Doc. 17), and Petitioner filed a Reply on August 12, 2021 (Doc. 23).
BACKGROUND
On December 13, 2017, Petitioner was charged in disciplinary case 17-L23-1182 with threatening and intimidation. See Cook v. Ryan, 468 P.3d 1233, 1235 (Ariz.Ct.App. 2020). Petitioner claims that on January 5, 2018, he was found guilty in case 17-L23-1182 and sanctioned with the loss of 120 earned release credits. (Doc. 1 at 6; Doc. 11.)
Petitioner also contends that case 17-L23-1182 was dismissed based on the lack of evidence. (Doc. 1 at 6; Doc. 11.) The Arizona Court of Appeals found that the record was “unclear” as to what actually resulted from this disciplinary case. See Cook, 468 P.3d at 1235-36. Notably, if in fact, the 120-day earned release sanction was reversed or not imposed, there remains no basis for seeking habeas corpus as to this disciplinary case.
On December 25, 2017, Petitioner was charged with possession of a weapon in disciplinary case 17-LO9-113. See Cook, 468 P.3d at 1235. Petitioner was found guilty in case 17-LO9-113 and sanctioned with the loss of 180 earned release credits. See id.
On August 27, 2018, Petitioner filed a complaint for administrative review of his disciplinary cases in Maricopa County Superior Court, case LC 2018-000335. (Doc. 11.) The superior court treated the complaint as a petition for special action, accepted special action jurisdiction, and denied relief. (Doc. 11.) On June 27, 2019, the superior court denied Petitioner's motion for reconsideration. (Doc. 11.)
Thereafter, Petitioner appealed to the Arizona Court of Appeals, which affirmed the superior court's ruling as to the denial of relief concerning cases 17-L23-1182 and 17-LO9-113. See Cook, 468 P.3d at 1236-38. On January 5, 2021, the Arizona Supreme Court denied Petitioner's petition for review. (Doc. 1 at 44.)
In his habeas petition, Petitioner alleges one ground for relief challenging the two disciplinary proceedings that allegedly resulted in the loss of 300 days of earned release credits - case 17-L23-1182 and case 17-LO9-113. Petitioner claims that his due process rights were violated.
In its screening Order, the Court dismissed Petitioner's three other grounds for relief. (Doc. 11.)
In their Answer, Respondents argue that Petitioner failed to exhaust his state court remedies and his claims are meritless.
DISCUSSION
A. Disciplinary Case 17-L23-1182
Petitioner argues that his due process rights were violated as he was found guilty in case 17-L23-1182 and sanctioned with the loss of 120 earned release credits without notice and an opportunity to oppose the charge.
To challenge disciplinary proceedings, a prisoner may seek federal habeas relief pursuant to 28 U.S.C. § 2254, which is the “exclusive vehicle” for a state prisoner to seek relief from an administrative decision in federal court. See White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir. 2004). Before a federal court may grant habeas relief, however, a prisoner must first have exhausted remedies available in the state courts. See 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The federal court will not entertain a petition for writ of habeas corpus unless each and every issue has been exhausted. Rose v. Lundy, 455 U.S. 509, 521-22 (1982); Olvera v. Guirbino, 371 F.3d 569, 572 (9th Cir. 2004) (district court may not consider a claim until petitioner has properly exhausted all available remedies). When seeking habeas relief, the burden is on the habeas petitioner to show that he has properly exhausted each claim. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981) (per curiam).
To exhaust claims, a prisoner must give the state courts a “fair opportunity” to act on his claims. Castillo v. McFadden, 370 F.3d 882 (9th Cir. 2004). He must describe both the operative facts and the federal legal theory so that the state courts have a “fair opportunity” to apply controlling legal principles to the facts bearing upon his constitutional claim.” Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003). A prisoner seeking to exhaust claims in state court before filing a federal habeas action should diligently pursue his available state remedies to avoid application of the one-year limitation period. See Shelby v. Bartlett, 391 F.3d 1061, 1066 (9th Cir. 2004) (applying § 2244(d) to a habeas petition challenging a disciplinary order).
An inmate may seek state judicial review by bringing a special action in superior court. Rose v. Arizona Dep't of Corr., 804 P.2d 845, 847-50 (Ariz.Ct.App. 1991). If unsuccessful, the inmate must then appeal the superior court's ruling to the Arizona Court of Appeals to exhaust his claims before seeking federal habeas relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999).
According to the record, Petitioner failed to present to the superior court his claim alleging that he was sanctioned with the loss of 120 earned release credits as a result of disciplinary case 17-L23-1182. (Doc. 17-1); see Cook, 468 P.3d at 1236-37. Petitioner attempted to bring this claim to the Court of Appeals for the first time, but the court did not consider the claim. See id. The appellate court also noted that Petitioner stated disciplinary case 17-L23-1182 was dismissed, and that Petitioner failed to provide any evidence or documentation demonstrating that any penalties assessed against him in case 17-L23-1182 “still stand.” See id.
Accordingly, Petitioner has not exhausted all of his available remedies in state court and, therefore, the Court will recommend that this portion of Ground One be dismissed for failure to exhaust.
B. Disciplinary Case 17-LO9-0113
Petitioner argues that he was not given the constitutionally required 24 hours' advance written notice for case 17-LO9-0113. Petitioner contends the lack of notice prevented him from collecting evidence and preparing a defense for the hearing.
Construed liberally, Petitioner appears to have fairly presented this claim to state courts. In denying the claim the Court of Appeals stated, in pertinent part:
While Cook claims he was not made aware of the charges for case 17-LO9-0113 until sixty-one days after the January 5, 2018 hearing, Cook concedes he was given a disciplinary report and written notice on January 4, 2018. In fact, on January 4, 2018, Cook made requests for witness statements in anticipation of the hearing. The purpose of providing an inmate with a copy of the charges is “to inform him of the charges and to enable him to marshal the facts and prepare a defense.” Wolff, 418 U.S. at 564, 94 S.Ct. 2963. Regardless of the exact amount of notice Cook was given, Cook was notified at least the day before the hearing. Moreover, he has failed to demonstrate how he may have been prejudiced by allegedly not receiving the full twenty-four hours' notice. See Powell, 953 F.2d at 750; cf Yakima Compost Co., 224 Ariz. at 598, ¶ 12, 233 P.3d at 1177.Cook, 468 P.3d at 1237. The court also instructed that Petitioner “does not have an unrestricted right to call witnesses and present evidence,” and stated, “‘[p]rison officials must have the necessary discretion ... to limit access to other inmates to collect statements or to compile other documentary evidence.'” Id. at 1238. (citation omitted). Further, the court found that “DOC does not allow inmates to force corrections officers and staff to testify live at disciplinary hearings, and instead allows inmates to ask written questions of witnesses.” Id. And, to the extent Petitioner claimed that the DOC did not allow him to call witnesses at the hearing, the court found that nothing in the record indicated that Petitioner was ever denied the opportunity to solicit and use witness statements in case 17-LO9-0113. See id.
Lastly, in response to Petitioner's argument that the only evidence supporting the charges was the testimony of correctional officers, the court found that “‘[c]ontrary to Cook's argument, all that is required to uphold the decision of a disciplinary board is ‘some evidence'; the testimony and/or disciplinary report of a correctional officer is sufficient.'” Id. (citations omitted).
Here, the Court finds that the appellate court's decision was not contrary to, or an unreasonable application of, clearly established Federal law, or based on an unreasonable determination of the facts. Where prison disciplinary hearings may result in the loss of earned time credits, due process requires that an inmate receive: (1) advanced written notice of the disciplinary charges, (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action. See Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974)). “At least a brief period of time after the notice, no less than 24 hours, should be allowed to the inmate to prepare for the appearance.” Id.
In addition to the Wolff requirements due process requires that “some evidence” support the administrative decision. See Superintendent v. Hill, 472 U.S. 445, 454 (1985). “An examination of the entire record is not required nor is an independent assessment of the credibility of the witnesses or weighing of the evidence.” Id. The relevant issue is whether any evidence in the record supports the disciplinary board's conclusion. See id. In addition, the Ninth Circuit has held that the information which forms the basis of the prison disciplinary action must bear some indicia of reliability. See Cato v. Rushen, 824 F.2d 703, 704-05 (9th Cir. 1987).
Due process does not require that an inmate be permitted to confront or crossexamine his accusers. See Baxter v. Palmigiano, 425 U.S. 308, 321-22 (1976); Wolff, 418 U.S. at 567-68; see also Zimmerlee v. Keeney, 831 F.2d 183, 187 n.2 (9th Cir. 1987) (per curiam) (“Confrontation and cross examination are not generally required and are left to the sound discretion of the prison official.”), cert. denied, 487 U.S. 1207 (1988). Nor do inmates have a right to counsel in disciplinary proceedings. See Wolff, 418 U.S. at 569-70.
The record reflects that Petitioner was notified verbally of disciplinary case 17-LO9-0113 on December 25, 2017, and notified in writing on January 4, 2018. (Doc. 17-3 at 2.) The disciplinary hearing was held on January 5, 2018. (Doc. 17-3 at 3.) Although the time stamp of “Delivery of Charge” on the Inmate Disciplinary Report is illegible on Respondents' exhibit (Doc. 17-3 at 2) and blank on Plaintiff's exhibit (Doc. 23 at 43), and there is no indication of the time of the hearing held on January 5,2018 (Doc. 17-3 at 3), the Court of Appeals found that Petitioner was sufficiently notified in writing at least the day before the hearing and was able to prepare by requesting witness statements in advance of the hearing. See Cook, 468 P.3d at 1237. Petitioner has failed to present any evidence demonstrating that he received notice less than 24 hours before the hearing. See Wolff, 418 U.S. at 564 (“At least a brief period of time after the notice, no less than 24 hours, should be allowed to the inmate to prepare for the appearance before the [disciplinary hearing].”)
Further, to the extent Petitioner claims that he was denied the right to call witnesses and to present evidence, beyond his conclusory statements, Petitioner fails to provide any evidence to support his claim -- and the Court finds none. See Cook, 468 P.3d at 1238 (“nothing in the record indicates Cook was ever denied the opportunity to solicit and use witness statements”). In an attempt to establish prejudice, Petitioner alleges, without any supporting documentation, that officers would have testified that Petitioner was searched on December 22, 2017, and no weapon was found. However, any argument regarding earlier searches has no impact on the fact that a weapon was found three days later - on December 25, 2017. (Doc. 17-3 at 2.)
Lastly, insofar as Petitioner argues, as he did in state court, that the only evidence supporting the charge was the testimony of correctional officers, the Court finds that such evidence is sufficient. A final decision to revoke good-time credits must be based on “some evidence.” Hill, 472 U.S at 455. “The relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Id. at 45556 (emphasis added). If so, then due process is satisfied. See id. An officer's disciplinary report alone provides some evidence supporting a disciplinary decision. See McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999). The Inmate Disciplinary Report in case number 17-LO9-0113 provides that on December 25, 2017, COII Sanchez was conducting a “search/inventory” of incoming property of Petitioner during which he found a prison-made weapon in Petitioner's jacket. (Doc. 17-3 at 2.) The officer's eyewitness statement contained in the disciplinary report constitutes some evidence to support this disciplinary conviction.
Accordingly, finding that Petitioner's due process claim as related to case 17-LO9-0113 has no merit, the Court will recommend that this portion of Ground One be dismissed.
CONCLUSION
Having determined that Petitioner's claims as alleged in Ground One are unexhausted and have no merit, the Court will recommend that Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be denied and dismissed.
IT IS THEREFORE RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DENIED AND DISMISSED;
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because Petitioner has not made a substantial showing of the denial of a constitutional right and because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.