Opinion
REPORT AND RECOMMENDATION OF UNITED STATE MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable John A. Kronstadt, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on December 4, 2014. Petitioner challenges his prison disciplinary convictions for battery on an inmate and attempted oral copulation on an inmate against the inmate's will. On December 23, 2014, Respondent filed a "Motion to Dismiss, etc." ("Motion to Dismiss"), contending that the Petition is untimely and that three of Petitioner's claims are unexhausted. On February 5, 2015, Petitioner filed an "Opposition to Respondent[]s Motion to Dismiss, etc." ("Opposition to Motion to Dismiss").
My Minute Order filed February 11, 2015, the Magistrate Judge ordered Respondent to address the merits of all claims raised in the Petition. On March 5, 2015, Respondent filed an Answer, accompanied by exhibits. On April 23, 2015, Petitioner filed a Traverse.
PROCEDURAL BACKGROUND
On August 24, 2012, a hearing officer found Petitioner guilty of battery on an inmate, in Rules Violation Report log number FAA-12-07-014 (Petition, Ex. D, ECF Docket No. 1, p. 43; ECF Docket No. 1-1, p. 1). Petitioner received a 90-day credit loss and a 30-day privilege loss (id., ECF Docket No. 1-1, p. 1).
The exhibits to the Petition do not bear consecutive page numbers. The Court uses the ECF pagination.
On August 26, 2012, a hearing officer found Petitioner guilty of attempted oral copulation against the victim's will, in Rules Violation Report log number FAA-12-07-012 (Petition, Ex. F, ECF Docket No. 1-1, pp. 18-19). Petitioner received a 360-day credit loss (id., p. 19).
Petitioner filed an administrative appeal of the attempted oral copulation conviction (Petition, Ex. G). On January 4, 2013, Petitioner's administrative appeal was denied at the Third Level of Review (id., Ex. G, ECF Docket No. 1-1, pp. 25-26). Petitioner did not file an administrative appeal of the battery conviction.
The administrative appeal attached to the Petition alleged, inter alia that the conviction challenged in that appeal was obtained by reliance upon information from Confidential Informant number 3 ("CI-3)" (Petition, Ex. G, ECF Docket No. 1-1, p. 23). As set forth in more detail below, the battery conviction did not rely on any evidence from Confidential Informant number 3 (see Petition, Ex. D, ECF Docket No. 1, p. 43; ECF Docket No. 1-1, p. 1).
On October 2, 2013, Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court, which that court denied in a written order on December 2, 2013 (Motion to Dismiss, Exs. 1, 2). On April 22, 2014, Petitioner filed a habeas corpus petition in the California Court of Appeal, which that court denied summarily on May 9, 2014 (id, Exs. 3, 4). On June 2, 2014, Petitioner filed a habeas corpus petition in the California Supreme Court, which that court denied summarily on August 13, 2014 (id., Exs. 5, 6).
FACTUAL BACKGROUND
On July 24, 2012, Petitioner was placed in administrative segregation pending an investigation into allegations that Petitioner had sexually harassed and committed battery on inmate Marshman (Petition, Ex. B, ECF Docket No. 1, p. 36). On July 29, 2012, the reporting officer signed a Rules Violation Report, Log Number FAA-12-07-012, charging Petitioner with attempted oral copulation against the victim's will, based on the reports of four confidential informants (id., Ex. F, ECF Docket No. 1-1, p. 9). On July 30, 2012, the reporting officer signed a Rules Violation Report, Log Number FAA-12-07-014, charging Petitioner with battery on an inmate, based on the reports of two of the four confidential informants, CI-1 and CI-2 (Petition, Ex. D, p. 40).
I. Rules Violation Report Log No. FAA-12-07-012 (Attempted Oral Copulation)
Rules Violation Report Log No. 12-07-012 was based principally on the following information obtained by the investigative employee from four confidential sources. The confidential informants alleged the following:
The confidential informants' interviews were reported in "Confidential Information Disclosure Forms, " which were provided to Petitioner in advance of the disciplinary hearing (Petition, Ex. F, ECF Docket No. 1-1, pp. 15, 17).
On July 21, 2012, at approximately 02:30 hours, Confidential Informant 1 ("CI-1") allegedly observed Petitioner approach inmate Marshman while Marshman was sitting on a toilet (Petition, Ex. F, ECF Docket No. 1-1, p. 9). CI-1 allegedly saw Petitioner, with his penis exposed, grab Marshman's head and attempt to force Marshman to perform oral sex on Petitioner (id.). On July 23, 2012, at approximately 23:00 hours, CI-1 saw Petitioner punch Marshman in the face (Petition, Ex. F, ECF Docket No. 1-1, pp. 9-10).
Late at night on July 23, 2012, Confidential Informant 2 ("CI-2") allegedly observed Petitioner and Marshman arguing in the inmate restroom, and thereafter allegedly observed Marshman walk out of the restroom holding his cheek and allegedly heard Marshman say that Petitioner had punched Marshman (id., pp. 9-10).
Confidential Informants 3 and 4 ("CI-3" and "CI-4, " respectively) described prior sexual acts in which Petitioner allegedly had engaged. CI-3 stated that, "from November 23, 2012 through May 22, 2012 [sic], " Petitioner repeatedly approached CI-3 and asked CI-3 to perform sexual acts with Petitioner in exchange for money and/or canteen items (id.). When CI-3 allegedly refused these advances, Petitioner assertedly threatened to commit battery on CI-3 (id.). CI-3 allegedly obtained a bed move in order to avoid battery and sexual assault by Petitioner (id.).
CI-4 stated that, during a two week period beginning on July 15, 2011, Petitioner repeatedly approached CI-4 and requested that CI-4 perform oral copulation on Petitioner in exchange for money and/or canteen items (id.). When CI-4 assertedly refused Petitioner's advances, Petitioner allegedly threatened to commit battery on CI-4 if CI-4 continued to refuse (id.). CI-4 allegedly told Petitioner that CI-4 would fight back and defend himself if Petitioner continued his alleged threats and unwelcome sexual advances (id.).
The reporting employee found that the confidential informants' statements were reliable. The "Confidential Information Disclosure Forms" (called "CDC 1030" forms) stated:
1. CI-1 was reliable because part of the information CI-1 provided had already been proven to be true and because a "CDCR 7219 Medical Evaluation" of Marshman reflected a contusion under Marshman's left eye; and
2. CI-2, CI-3 and CI-4 were reliable because more than one source independently provided the same information, part of the information provided by CI-2 had already been proven to be true and the "CDCR 7219 Medical Evaluation" of Marshman reflected a contusion under Marshman's left eye
(Petition, Ex. E, ECF Docket No. 1-1, pp. 4-7). Based on the confidential informants' statements, the reporting employee concluded that Petitioner attempted to force Marshman to perform oral copulation on Petitioner (Petition, Ex. F, ECF Docket No. 1-1, p. 16).
The hearing commenced on August 24, 2012, and then was continued to August 26, 2012 (id., p. 17). Petitioner pled not guilty and made the following statement: "I am not gay. Look at my C file. I don't have those kinds of charges - plus, I am impotent. It just doesn't make any sense why all of the sudden [sic], I will turn gay." (id., p. 18). The hearing officer considered the investigative employee's report, which stated, inter alia, that Petitioner assertedly had told the investigative employee: "All this is a lie. These statements about me are not true. All of this never happened." (id., p. 15). The hearing officer denied Petitioner's request for inmate Marshman as a witness on the ground that compelling Marshman to testify could "endanger his safety and jeopardize institution security" (id., p. 18).
The hearing officer deemed the confidential informants' statements reliable because more than one source provided the same information (id., p. 19). The hearing officer found Petitioner guilty based on the statements of the confidential informants as reflected in the reporting employee's report, the investigative employee's report and the confidential memoranda (id.).
II. Rules Violation Report Log No. FAA-12-07-014 (Battery on an Inmate)
The hearing on the battery charge occurred on August 24, 2012 (Petition, Ex. F, ECF Docket No. 1, p. 42). The report of the hearing reflects that the hearing officer could not find copies of the "7219, " the "837 packet" or the "1030's" relating to this charge. However, the hearing officer reviewed the file of the companion Rules Violation Report, Log No. FAA-12-07-012, which contained the same confidential source information (id.).
As indicated above, the "7219" referred to the Medical Evaluation and the "1030's" referred to the "Confidential Information Disclosure Forms." The Rules Violation Report containing the oral copulation charge indicates that "837" referred to a "Crime/Incident Report." The hearing officer stated that the "CDCR 7219 was nowhere to be found" (id.).
The report of the hearing reflects that Petitioner did not request any witnesses (id., p. 43). Petitioner entered a plea of not guilty and made the following statement: "The only thing I saw was Inmate Marshman having homosexual activity with another inmate. I told Marshman that he was a piece of shit and that I was going to have him moved out of the building. I think Inmate Marshman got mad that I told him he was a piece of shit and as payback, conspired with his friends to frame me and fabricated the whole story that I had committed battery on him. We have a standing rule that prohibits homosexual activity in the bathrooms." (id.). According to the hearing officer, although the "7210's" [sic] were unavailable for review, at the hearing Petitioner said that Marshman had a scratch on his face on the "day of discovery, July 25, 2012" (id.).
The hearing officer found CI-1's statement to be reliable because more than one source allegedly provided the same information and part of the information had proved to be true (Petition, ECF Docket No. 1-1, p. 1). The hearing officer found Petitioner guilty based on the reporting employee's report and CI-1's statement (id.).
PETITIONER'S CONTENTIONS
Petitioner contends:
1. The denial of Petitioner's request to have the victim testify at the hearing on the attempted oral copulation charge allegedly violated Due Process and the Confrontation Clause (Ground One) (Petition, p. 5; attachment, pp. 6, 8, 10, 12-16);
2. The evidence allegedly was insufficient to support Petitioner's disciplinary convictions (Ground Two) (Petition, pp. 5, 17-25); and
3. Petitioner's two disciplinary convictions and the consecutive punishments therefor assertedly violated California's alleged prohibition against "stacking, " thereby assertedly violating due process (Ground Three) (Petition, pp. 6, 25-29).
STANDARD OF REVIEW
Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "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." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 132 S.Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts... materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).
"In order for a federal court to find a state court's application of [Supreme Court] precedent unreasonable, ' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), 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." Harrington v. Richter, 562 U.S. 86, 101 (2011). This is "the only question that matters under § 2254(d)(1)." Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id . "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.
In applying these standards, the Court looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories... 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." Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011) (citation, quotations and brackets omitted).
The Court assumes arguendo the timeliness of the claims asserted in the Petition. See Van Buskirk v. Baldwin, 255 F.3d 974, 976 (9th Cir.), amended and superseded on other grounds, 265 F.3d 1080 (9th Cir. 2001), cert. denied, 535 U.S. 950 (2002) (declining to address statute of limitations issue where habeas petition lacked merit); see also Gomez v. Cate, 459 Fed.App'x 665, 666 (9th cir. 2011) (same); Trussel v. Bowersox, 447 F.3d 588, 590 (8th Cir.), cert. denied, 549 U.S. 1034 (2006) (addressing merits rather than limitations issue in the interest of judicial economy).
I. Petitioner's Challenge to the Denial of His Request to Have the Victim Testify Does Not Merit Federal Habeas Relief.
In Wolff v. McDonnell, 418 U.S. 539 (1974) ("Wolff"), the United States Supreme Court established the elements of due process applicable to a prison disciplinary proceeding.
Where a prison disciplinary hearing may result in the loss of good time credits, Wolff held that the inmate must receive: (1) advance 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.
Superintendent, Massachusetts Correctional Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985) (citing Wolff, 418 U.S. at 563-67) (emphasis added). In Ground One of the Petition, Petitioner contends the denial of Petitioner's request to have Marshman testify at the hearing on the attempted oral copulation charge allegedly violated the Confrontation Clause and Due Process. Petitioner asserted this claim in his California Supreme Court habeas petition (see Respondent's Exhibits, ECF Docket No. 13, Ex. 6, pp. 111-112). Because the California Supreme Court denied that petition summarily, this Court "must determine what arguments or theories... 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." Cullen v. Pinholster, 131 S.Ct. at 1403 (citation, quotations and brackets omitted).
Petitioner does not assert (nor could he on the record presented) that he lacked advance notice of the charges or that the factfinder failed to provide the requisite written statement of reasons for the decision.
To the extent Petitioner asserts a Confrontation Clause claim, Petitioner's claim fails because the Constitution does not grant a prisoner any right to confront witnesses at a prison disciplinary hearing. See Wolff, 418 U.S. at 566-68; Bartholomew v. Haviland, 467 Fed App'x 729, 731 (9th Cir.), cert. denied, 132 S.Ct. 2396 (2012); Zimmerlee v. Keeney, 831 F.2d 183, 187 n.2 (9th Cir. 1987), cert. denied, 487 U.S. 1207 (1988); see also Henderson v. United States Parole Comm'n, 13 F.3d 1073, 1978 (7th Cir.), cert. denied, 513 U.S. 926 (1994) ("Prisoners in this context [of a disciplinary hearing] do not possess Sixth Amendment rights to confront and cross-examine witnesses.") (citing Wolff, 418 U.S. at 568).
Petitioner's Due Process claim fares no better. Wolff confers upon a prisoner the right, at a disciplinary hearing, to call witnesses with relevant information, when doing so will not be unduly hazardous to institutional safety. Wolff, 418 U.S. at 566; Bostic v. Carlson, 884 F.2d 1267, 1271 (9th Cir. 1989). However, this right "is necessarily circumscribed by the penological need to provide swift discipline in individual cases, " and is "additionally circumscribed by the very real dangers in prison life which may result from violence or intimidation directed at either other inmates or staff." Ponte v. Real, 471 U.S. 491, 495 (1985); see Bostic v. Carlson, 884 F.2d at 1274.
Here, the hearing officer denied Petitioner's request for inmate Marshman to appear as a witness on the ground that compelling Marshman to testify could "endanger his safety and jeopardize institution security" (Petition, Ex. F, ECF Docket No. 1-1, p. 18). Petitioner contends that at the time of the hearing Petitioner and Marshman were not housed at the same facility and that Petitioner purportedly could have questioned Marshman via telephone (Petition, ECF Docket No. 1, p. 12. However, even assuming arguendo that Petitioner and Marshman were housed in two different "facilities" at the prison at the time of the hearing, the hearing officer still reasonably could have determined that calling Marshman to testify would have placed Marshman at risk, particularly in light of the fact that four other witnesses were designated confidential informants. See Wolff, 418 U.S. at 566 (prison officials must have the discretion to refuse to call witnesses whose testimony "may create a risk of reprisal"); Gonzalez v. Fox, 2014 WL 1118081, at *3 (E.D. Tex. Mar. 19, 2014) (safety-based denial of prisoner's request to call victims as witnesses at disciplinary hearing did not violate due process); Bailey v. Dretke, 2004 WL 1746091, at *3-4 (N.D. Tex. Aug. 3, 2014) (same).
See Petition, Ex. B, ECF Docket No. 1, p. 36 (suggesting Petitioner was housed in administrative segregation.
In any event, even assuming arguendo that the denial of Petitioner's request to compel Marshman to appear as a witness was error, any such error was harmless under the standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (forbidding a grant of habeas relief for a non-structural error unless the error had a "substantial and injurious effect or influence" on the outcome of the case); see White v. Adams, 405 Fed.App'x 265, 265-66 (9th Cir. 2010) (applying Brecht to claim that prison officials denied petitioner witnesses at disciplinary hearing); Hernandez v. Cate, 2011 WL 63606, at *6 (C.D. Cal. Jan. 4, 2011) (same). Here, Petitioner fails to demonstrate that Marshman would have provided any exonerating testimony. Accordingly, any alleged error was harmless. See Wise v. Knowles, 2013 WL 5329177, at *7 (C.D. Cal. Sept. 16, 2013) (rejecting claim that prison officials unconstitutionally denied petitioner witnesses at disciplinary hearing, where petitioner did not show witnesses would have provided exculpatory testimony or any other information of value to Petitioner).
For the foregoing reasons, the California Supreme Court's rejection of this claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See Harrington v. Richter, 562 U.S. at 102-03; 28 U.S.C. § 2254(d). Petitioner is not entitled to federal habeas relief on Ground One of the Petition.
II. Petitioner's Challenges to the Sufficiency of the Evidence to Support His Disciplinary Convictions Do Not Merit Federal Habeas Relief.
Petitioner challenges the sufficiency of the evidence to support both of his disciplinary convictions, asserting that the confidential informants' statements allegedly were not corroborated or reliable and that the "7219" Medical Evaluation form allegedly "never existed" and/or was "never considered" by the hearing officer (Petition, ECF Docket No. 1, pp. 17-25). By contrast, in his Superior Court petition, Petitioner challenged the sufficiency of the evidence to support his attempted oral copulation conviction, but stated that he did "not dispute that a battery occurred" that "[t]aken together, the statements of CI-1 and CI-2 corroborate [the battery], " and that the battery "is not at issue" (Respondent's Exhibits, ECF Docket No. 13, Ex. 2, p. 20). The Superior Court rejected Petitioner's challenge to the sufficiency of the evidence to support the attempted oral copulation conviction, ruling that the confidential informants' reports constituted "some evidence" to support that conviction, and that Petitioner's challenge to the reliability and credibility of the evidence did not entitle Petitioner to habeas relief under the "some evidence" standard (Respondent's Ex. 3).
Petitioner also conceded the propriety of his battery conviction in his Court of Appeal and California Supreme Court petitions (see Respondent's Exhibits, ECF Docket No. 13, Ex. 4, p. 78; Ex. 6, p. 100).
Due process in a prison disciplinary hearing requires that there be "some evidence" to support the findings made. Superintendent, Massachusetts Correctional Inst., Walpole v. Hill, 472 U.S. at 457. Under the "some evidence" standard, the Court does not examine the entire record, make an independent assessment of the credibility of witnesses, or weigh the evidence. Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003); see Castro v. Terhune, 712 F.3d 1304, 1315 (9th Cir. 2013) (court may not "examine the entire record, independently assess witness credibility, or reweigh the evidence") (citation and internal quotations omitted). Rather, "the relevant question is whether there is any evidence in the record that could support the conclusion." Superintendent, Massachusetts Correctional Inst., Walpole v. Hill, 472 U.S. at 455-56; Bruce v. Ylst, 351 F.3d at 1287. Direct evidence is not required, and evidence that is "meager" or indirect may suffice. Superintendent, Massachusetts Correctional Inst., Walpole v. Hill, 472 U.S. at 456-57.
Evidence must bear only "some indicia of reliability" to be considered "some evidence." Castro v. Terhune, 712 F.3d at 1314-15 (citation and internal quotations omitted). Corroborating evidence can show reliability. Zimmerlee v. Keeney, 831 F.2d at 187-88. In Bruce v. Ylst, the Ninth Circuit held that evidence sufficiently supported an inmate's validation as a gang member. The evidence consisted of police reports, a probation report and the statement of a confidential informant who had identified the inmate as a gang "shot caller." Bruce v. Ylst, 351 F.3d at 1287-88. The Ninth Circuit observed that "any of these three pieces of evidence would have sufficed to support the validation because each bore sufficient indicia of reliability." Id . California prison regulations specify various criteria which may establish a confidential source's reliability, including: (1) the other confidential sources independently provided the same information; and (2) part of the information was corroborated through investigation or by information provided by non-confidential sources. See 15 C.C.R. § 3321(c).
A. Battery Conviction
Because Petitioner did not challenge the sufficiency of the evidence to support the battery conviction in the state courts, this Court's review is de novo. Petitioner contends CI-1 and CI-2 were unreliable because: (1) CI-1 and CI-2 allegedly did not come forward immediately; (2) CI-1 and CI-2 had not previously provided truthful information; (3) at the time of the alleged bathroom incident, an institutional count assertedly was occurring which purportedly required all inmates to be in their assigned bunk areas with no bathroom or toilet access; and (4) the "7219" Medical Evaluation form assertedly was missing.
Although it appears Petitioner's challenge to the sufficiency of the evidence to support his battery conviction is unexhausted, the Court may deny an unexhausted claim on the merits where that claim is not "colorable." See Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005), cert. denied, 546 U.S. 1172 (2006); see also 28 U.S.C. § 2254(b)(2). For the reasons stated herein, Petitioner's challenge to the sufficiency of the evidence to support his battery conviction is not "colorable."
The statements of CI-1 and CI-2 corroborated each other with respect to the battery charge. Although the Medical Evaluation form (which reportedly said Marshman had a contusion under his eye) was unavailable at the hearing, the hearing officer knew the contents of the form (which had been described in the Confidential Information Disclosure Forms). The "some evidence" standard does not preclude the consideration of hearsay. See, e.g., Castro v. Terhune, 712 F.3d at 1315 (sufficient evidence to validate petitioner as a gang member included statements of two confidential informants who had personal knowledge of petitioner's involvement in gang-related activities); Bruce v. Ylst, 351 F.3d at 1287-88 (hearsay reports sufficient). Moreover, Petitioner does not dispute that Marshman had an injury to his face. Indeed, in a declaration attached to Petitioner's California Supreme Court habeas petition, Petitioner appeared to admit having hit Marshman while the two of them were in the bathroom (see Respondent's Exhibits, ECF Docket No. 13, Ex. 6, p. 120).
To the extent Petitioner contends CI-1 was not reliable because the alleged bathroom incident occurred at a time when inmates assertedly had no bathroom or toilet access due to an institutional count, the record does not show that the hearing officer was aware of any evidence concerning the alleged institutional count at the time of the determination of guilt. To the extent Petitioner challenges the credibility of the evidence presented, based on the informants' alleged delay in reporting or any other alleged problem with the informants' credibility, this Court cannot reassess credibility in determining whether "some evidence" existed to support the conviction. See Superintendent, Massachusetts Correctional Inst., Walpole v. Hill, 472 U.S. at 455-56; Castro v. Terhune, 712 F.3d at 1315. The confidential informants' statements, including the notation on the "Confidential Informant Disclosure Forms" concerning the content of the "7219" Medical Evaluation of Marshman, provided "some evidence" to support Petitioner's battery conviction. Accordingly, Petitioner is not entitled to federal habeas relief on this claim.
B. Attempted Oral Copulation Conviction
The AEDPA's deferential standard applies to the Superior Court's determination that "some evidence" existed to support Petitioner's attempted oral copulation conviction. The Superior Court's decision was not unreasonable under this standard of review. As indicated above, the statements of CI-1 and CI-2 corroborated each other in part, and the evidence of injury to Marshman's face also corroborated these informants' statements in part. The statements of CI-3 and CI-4 corroborated each other insofar as the statements of CI-3 and CI-4 showed Petitioner's prior history of committing or attempting to commit sexual assault on fellow inmates. In these circumstances, the Superior Court's determination that "some evidence" existed to support the attempted oral copulation conviction was not unreasonable.
The use of prior bad act evidence at the hearing was not contrary to or an unreasonable application of any clearly established Supreme Court law. Even in criminal cases, the United States Supreme Court has never ruled that the admission of propensity evidence violates the Constitution. See Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991) ("we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of prior crimes' evidence to show propensity to commit a charged crime").
III. Petitioner's Challenge to the Alleged "Stacking" of Charges Does Not Merit Federal Habeas Relief.
Petitioner contends his disciplinary convictions and the consecutive punishments therefor violated a state prison policy against "stacking" inmate disciplinary violations. This claim does not merit federal habeas relief.
Petitioner attaches to the Petition a Department of Corrections "memorandum" to "Wardens, " dated June 23, 1998, purporting to describe a correctional policy whereby, "where an event starts with one type of misconduct and escalates to a point where a more serious violation occurs, the most serious of these consecutive or related violations will be the one charged" (Petition, ECF Docket 1-1, Ex. I, pp. 31-33). The memorandum also contains an example indicating that two offenses may be punished separately where they differ in "[t]ime and location" (id., p. 32).
In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws or treaties of the United States. Estelle v. McGuire, 502 U.S. at 68. Habeas relief is not available for an alleged error in the interpretation or application of state law. Id. at 67-68; see also Wilson v. Corcoran, 562 U.S. 1, 131 S.Ct. 13, 16 (2010) ("it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts") (original emphasis). Petitioner's claim that his disciplinary convictions and sentences violated state prison policies against "stacking" does not state any cognizable claim for federal habeas relief. See Rivera v. Chavez, 2013 WL 1010534, at *6 (C.D. Cal. Feb. 8, 2013), adopted, 2013 WL 1010534 (C.D. Cal. Mar. 13, 2013) ("stacking" challenge to disciplinary convictions failed to allege a federal constitutional claim warranting habeas relief); see also Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996), cert. denied, 522 U.S. 881 (1997) (habeas petitioner may not transform a state law issue into a federal law issue merely by affixing a "due process" label to the state law issue). Accordingly, Petitioner is not entitled to federal habeas relief on this claim.
RECOMMENDATION
For the reasons discussed above, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; (2) denying and dismissing the Petition with prejudice; and (3) denying the Motion to Dismiss without prejudice as moot.