1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVAUGHN LOVE, Case No.: 20-cv-00447-JLS (DEB)

12 Petitioner,

REPORT AND

13 v. RECOMMENDATION ON

PETITION FOR WRIT OF HABEAS

14 RAYMOND MADDEN, et al.,

CORPUS

15 Respondents. 16 17 This Report and Recommendation is submitted to United States District Judge Janis 18 L. Sammartino pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d)(4) and 19 HC.2(a). 20 Petitioner Davaughn Love is a California prisoner proceeding pro se. On 21 March 9, 2020, Petitioner filed a Petition for a Writ of Habeas Corpus pursuant to 22 28 U.S.C. § 2254 (“Petition”) challenging the results of a disciplinary hearing conducted 23 by the California Department of Corrections and Rehabilitation (CDCR). Dkt. No. 1. 24 Petitioner claims there was no evidence to find him guilty of two rules violation reports for 25 possession of: (1) alcohol; and (2) a cellular telephone. Id. On June 25, 2020, Respondents 26 27 28 1 Raymond Madden, Warden, and Xavier Becerra, Attorney General of California, filed a 2 Response. Dkt. No. 7. On September 8, 2020, Petitioner filed a Traverse. Dkt. No. 11. 3 The Court has considered the Petition, Response, Traverse, and all supporting 4 documents. The Court recommends DENYING Petitioner’s Petition of Writ of Habeas 5 Corpus because the claims are not cognizable under 28 U.S.C. § 2254. 6 I. BACKGROUND 7 On July 22, 2016, Petitioner was convicted in the Superior Court of California of 8 attempted murder and shooting at an occupied motor vehicle. Lodgment No. 2, Dkt. 9 No. 8-2 at 1. On October 5, 2016, the Superior Court sentenced Petitioner to an 10 indeterminate term of forty-seven years to life in prison with the possibility of parole. Id. 11 On January 21, 2019, a correctional officer issued Petitioner two rules violation 12 reports (RVRs) for possessing alcohol and a cellular telephone. Dkt. Nos. 1 at 30, 45; 13 Lodgment No. 3, Dkt. No. 8-3 at 1. As summarized in the California Court of Appeal’s 14 decision: 15 A prison guard “detected a strong pungent odor of alcohol” as he 16 passed by the cell occupied solely by Davaughn Love. When the guard tried to enter the cell, Love kept the door shut, retrieved a 17 cellular telephone and charger from his locker, broke up the 18 telephone into pieces, and flushed the pieces and the charger down the toilet. When the prison guard finally got into Love’s 19 prison cell, he discovered several coffee containers of what he 20 recognized as inmate-manufactured alcohol based on his discovery of the same substance “on numerous occasions.” The 21 guard flushed the alcohol down the toilet. 22 23 Lodgment No. 12, Dkt. No. 8-12 at 1.2 24

25 1 Petitioner incorrectly named Respondent “X. Becca” in the Petition. 26

27 2 The state court factual findings are presumptively reasonable and entitled to deference in these proceedings. See 28 U.S.C. § 2254(d); see also Sumner v. Mata, 449 28 1 At the subsequent disciplinary hearing, Petitioner pleaded not guilty to both 2 violations and submitted a written statement claiming the correctional officer “fabricat[ed] 3 alcohol claims.” Dkt. No. 1 at 28. Petitioner further alleged the RVRs violated the prison’s 4 policy against “stacking” charges. Id. at 29; see also Lodgment No. 6, Dkt. No. 8-6 at 12.3 5 On February 5 and 27, 2019, a Senior Hearing Officer (“SHO”) found Petitioner guilty of 6 possession of alcohol and possession of a cellular telephone in violation of CCR §§ 3016(b) 7 and 3006(a). Lodgment Nos. 5, 6, Dkt. Nos. 8-5, 8-6. The CDCR assessed Petitioner 120 8 days forfeiture of credit for the alcohol offense, and 90 days forfeiture of credit for the 9 cellular telephone offense. Dkt. Nos. 1 at 41–42, 56–57; Lodgment Nos. 5, 6, Dkt. 10 Nos. 8-5 at 8–9, 8-6 at 8–9. 11 The CDCR denied Petitioner’s administrative appeals. Dkt. No. 1 at 60–73; 12 Lodgment Nos. 7, 8, Dkt. Nos. 8-7, 8-8. Petitioner sought and was denied habeas relief in 13 the Imperial County Superior Court, the California Court of Appeal, and the California 14 Supreme Court. Dkt. No. 1 at 75–84; Lodgment Nos. 10, 12, 17, Dkt. Nos. 8-10, 8-12, 15 8-7. On March 9, 2020, Petitioner filed this Petition. Dkt. No. 1. 16 II. STANDARD OF REVIEW 17 This Petition is governed by the Antiterrorism and Effective Death Penalty Act of 18 1996 (“AEDPA”), 28 U.S.C. § 2241, et seq. Under the AEDPA, a federal court may not 19 grant habeas relief for any matter adjudicated on the merits by a state court unless the 20 decision was: (1) contrary to, or involved an unreasonable application of clearly established 21 federal law; or (2) based on an unreasonable determination of the facts in light of the 22 evidence presented at the state court proceeding. 28 U.S.C. § 2254(d); Early v. Packer, 537 23 U.S. 3, 7–8 (2002). 24

25 determinations made by state courts, whether the court be a trial court or an appellate 26 court.”). 27 3 Petitioner did not raised the argument that the two RVRs were impermissibly 28 1 III. DISCUSSION 2 Petitioner alleges he was deprived due process because the SHO failed to apply the 3 “some evidence” standard when adjudicating Petitioner’s RVRs. Dkt. No. 1 at 17. For the 4 reasons discussed below, the Court lacks jurisdiction over this claim. Even if the Court had 5 jurisdiction, Petitioner’s claim fails on its merits. Finally, the Petition is not amenable to 6 conversion to an action under 42 U.S.C. § 1983. 7 A. The Petition Is Not Cognizable in Habeas 8 Respondent argues, and the Court agrees, that the Petition does not state a cognizable 9 claim for federal relief. Generally, prisoners’ federal claims fall into two categories: “a 10 petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act 11 of 1871 . . . 42 U.S.C. § 1983.” Muhammad v. Close, 540 U.S. 749, 750 (2004). Habeas 12 corpus actions, which Petitioner has filed here, involve “[c]hallenges to the validity of any 13 confinement or to particulars affecting its duration.” Id. Federal habeas jurisdiction exists 14 only where the relief sought would “necessarily lead to [Petitioner’s] immediate or earlier 15 release from confinement.” Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016) (en 16 banc). 17 Nettles controls here. In that case, petitioner was a life inmate and past his minimum 18 eligible parole date (“MEPD”). Id. at 925–27. Petitioner challenged a disciplinary decision 19 resulting in the forfeiture of 30 days of credit. Id. at 927. The Ninth Circuit found no federal 20 jurisdiction because “success on [petitioner’s] claims would not necessarily lead to his 21 immediate or earlier release from confinement.” Id. at 935. The court reasoned that, 22 “because the parole board has the authority to deny parole ‘on the basis of any grounds 23 presently available to it,’ the presence of a disciplinary infraction does not compel the 24 denial of parole.” Id. (quoting Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003)); see 25 also Sandin v. Conner, 515 U.S. 472, 487 (1995) (The “decision to release a prisoner rests 26 on a myriad of considerations.”). 27 Although Petitioner’s MEPD has not yet passed and the parole board has not yet 28 evaluated his suitability for parole, these facts do not meaningfully distinguish this case 1 from Nettles. If Petitioner’s lost credit is restored and his disciplinary action expunged, 2 Petitioner’s MEPD and initial parole hearing may occur at an earlier date. But, as in Nettles, 3 an earlier MEPD and parole suitability hearing will not necessarily lead to an earlier release 4 from confinement. Although a disciplinary conviction may pose challenges to an inmate 5 seeking release on parole, it is only one of a “myriad of considerations” relevant to a parole 6 decision; it does not in and of itself affect the length of a prisoner’s sentence. Sandin, 515 7 U.S. at 487 (“The chance that a finding of misconduct will alter the balance [at a parole 8 hearing] is simply too attenuated to invoke the procedural guarantees of the Due Process 9 Clause.”); see also Ramirez, 334 F.3d at 859 (“[I]f Ramirez is successful in attacking the 10 disciplinary hearing and expunging his sentence, ‘the parole board will still have the 11 authority to deny his request for parole on the basis of any of the grounds presently 12 available to it in evaluating such a request.’”). 13 Applying Nettles, district courts have found that the potential for an earlier MEPD 14 does not support habeas jurisdiction. Roldan v. Montgomery, No. 18-cv-2006-JAH (RBB), 15 2019 WL 2717269, at *6 (S.D. Cal. June 28, 2019) (“The potential for an earlier MEPD 16 and earlier parole hearing, therefore, is not sufficient to confer habeas jurisdiction.”), report 17 and recommendation adopted, 2020 WL 898064 (Feb. 25, 2020); Pettis v. Asuncion, 18 No. 16-cv-4241 CBM-JC, 2017 WL 927626, at *4–5 (C.D. Cal. Jan. 26, 2017) (no federal 19 habeas jurisdiction where the loss of credits resulting from a disciplinary violation did not 20 necessarily have any impact on the length of the petitioner’s confinement), report and 21 recommendation adopted, 2017 WL 923895 (Mar. 8, 2017); Olic v. Lizarraga, No. 15-cv- 22 0694-JAM-CMK-P, 2016 WL 7014392, at *3 (E.D. Cal. Dec. 1, 2016) (“Even if petitioner 23 was to advance his MEPD, the determination” would not necessarily lead to a speedier 24 release). 25 Here, success for Petitioner “does not mean immediate release from confinement or 26 a shorter stay in prison; it means at most [an earlier] eligibility review, which at most will 27 speed consideration of a . . . parole application.” Wilkson v. Dotson, 544 U.S. 74, 82 (2005). 28 Even if Petitioner received a parole hearing, state “authorities may, in their discretion, 1 decline to shorten his prison term.” Id. Under these circumstances, there is no federal 2 habeas jurisdiction. 3 B. The Petition Fails on the Merits 4 Even if this Court had jurisdiction over the Petition, it would fail on the merits. 5 Petitioner claims “there is no evidence to substantiate that the substance C/O Beltran 6 allegedly discovered or observed being flushed down the toilet system was in fact ‘alcohol’ 7 substance or any cell phone appliances.” Dkt. No. 1 at 18. Additionally, Petitioner alleges 8 “C/O Beltran failed to conduct a field test on the suspected contraband substance . . . nor 9 did he preserve the suspected substance for laboratory testing.” Id. at 67. 10 To satisfy due process, “some evidence” must support prison disciplinary 11 convictions. Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 12 (1985). “[T]he relevant question is whether there is any evidence in the record that could 13 support the conclusion reached by the disciplinary board.” Id. Even “meager” evidence 14 passes constitutional muster. Id. at 457. 15 “Some evidence” supported the RVRs here. The correctional officer’s written 16 report, relied on by the SHO, stated he “detected a strong pungent odor of alcohol” prior 17 to finding “what his experience caused him to recognize as inmate-manufactured alcohol 18 and . . . saw Love retrieve and dispose of a cellular telephone and charger.” Lodgment 19 No. 12, Dkt. No. 8-12 at 2. The correctional officer’s observations satisfy the “some 20 evidence” standard.4 21 22

23 4 Although Petitioner argues that “screens placed on the toilet systems” would 24 preserve the contraband, Dkt. No. 1 at 18, “[t]he question isn’t what the facts may show, 25 or can be argued to show; the question is simply whether ‘some evidence’ supports the finding.” Henry v. Cate, No. 12-CV-1760-LAB (WMC), 2014 WL 197768, at *1 (S.D. 26 Cal. Jan. 14, 2014) (uncorroborated officer testimony that “coffee jars filled with an orange 27 pulpy liquid in a laundry bag [were] under [the petitioner’s] bed, and that they had a strong odor of alcohol” was “some evidence” to support a SHO’s guilty finding that petitioner 28 1 Furthermore, in support of his claim, Petitioner cites 15 Cal. Code Reg. § 3290(a)– 2 (c), which states: (a) “[t]he [CDCR] shall prescribe the . . . methods for testing suspected 3 controlled substances or for the use of alcohol. . . .”; (b) “[f]ield tests may be performed 4 on any suspected substance found on institution property or in the possession or under the 5 control of any inmate. . . .”; and (c) urine samples may be taken from inmates. See Dkt. 6 No. 1 at 18. But “[n]owhere in these regulations is the requirement that an inmate [cannot] 7 be found guilty of possessing alcohol unless the liquid in question is actually tested and 8 confirmed to be alcohol.” Henry, 2014 WL 197768, at *2 (rejecting petitioner’s argument 9 that an officer’s failure “to test the alcohol as required by the California Department of 10 Corrections Regulations” violated due process). 11 Accordingly, the Court finds that habeas relief is not warranted on the merits of the 12 Petition because the SHO’s decision was supported by “some evidence,” and, therefore, 13 comported with due process. 14 C. Conversion to § 1983 Action 15 “If the complaint is amenable to conversion on its face, meaning it names the correct 16 defendants and seeks the correct relief,” a district court may construe an incorrectly filed 17 habeas petition as a § 1983 action. Nettles, 830 F.3d at 936. The Petition here is not 18 amenable to conversion. 19 Petitioner names Warden Madden and Attorney General Becerra as respondents. 20 The Petition does not allege any personal conduct by either Warden Madden or Attorney 21 General Becerra to hold them as defendants in a § 1983 action. See e.g. Leer v. Murphy, 22 844 F.2d 628, 633 (9th Cir. 1988) (In § 1983 cases, “[t]he inquiry into causation must be 23 individualized and focus on the duties and responsibilities of each individual defendant 24 whose acts or omissions are alleged to have caused a constitutional deprivation.”) (citing 25 Rizzo v. Goode, 423 U.S. 362, 370–71 (1976)). Thus, the Petition is not amenable to 26 conversion on its face, and the Court recommends dismissal rather than conversion to a 27 § 1983 action. 28 1 IV. CONCLUSION & RECOMMENDATION 2 For the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue 3 Order: (1) approving and adopting this Report and Recommendation; and (2) denying 4 || Petitioner’s Petition of Writ of Habeas Corpus. 5 IT IS ORDERED that no later than November 6, 2020, any party to this action may 6 || file written objections with the Court and serve a copy on all parties. The document should 7 captioned “Objections to Report and Recommendation.” 8 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 9 || the Court and served on all parties by November 20, 2020. 10 The parties are advised that failure to file objections within the specified time may 11 || waive the right to raise those objections on appeal of the Court’s order. See Turner v. 12 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156 (9th Cir. 13 1991). 14 IT IS SO ORDERED. 15 Dated: October 16, 2020 6 Dando 7 Honorable Daniel E. Butcher United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28