Ornelas v. Spearman

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID MARTINEZ ORNELAS, Case No.: 18-CV-1666-GPC-WVG 12 Petitioner, ORDER ADOPTING REPORT AND 13 v. RECOMMENDATION DENYING PETITION FOR WRIT OF HABEAS 14 M.E. SPEARMAN, CORPUS 15 Respondent. [ECF No. 14] 16 17 Petitioner David Martinez Ornelas (“Petitioner”), a federal inmate proceeding pro 18 se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging a 19 determination following a prison disciplinary proceeding finding that Petitioner was 20 guilty of battery on an inmate with a weapon arising from a fight that occurred on August 21 11, 2015. ECF No. 1. Respondents filed an answer on February 19, 2019. ECF No. 11. 22 Petitioner filed a traverse on March 21, 2019. ECF No. 13. Presently before the Court is 23 a Report and Recommendation (“Report”) issued by Magistrate Judge William V. Gallo 24 recommending the Court deny Petitioner’s petition. Doc. No. 14. Neither party has filed 25 objections to the Magistrate Judge’s Report. After a thorough review of the issues and 26 for the reasons set forth below, this Court ADOPTS the Magistrate Judge’s Report and 27 DENIES Petitioner’s petition. 28 1 Federal Rules of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a 2 district judge’s duties in connection with a magistrate judge’s report and 3 recommendation. The district judge must “make a de novo determination of those 4 portions of the report to which objection is made,” and “may accept, reject, or modify, in 5 whole or in part, the finding or recommendations made by the magistrate judge.” 28 6 U.S.C. § 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). 7 But “[t]he statute makes it clear that the district judge must review the magistrate judge’s 8 findings and recommendations de novo if objection is made, but not otherwise.” United 9 States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in 10 original); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) 11 (concluding that where no objections were filed, the district court had no obligation to 12 review the magistrate judge’s report). “Neither the Constitution nor the statute requires a 13 district judge to review, de novo, findings and recommendations that the parties 14 themselves accept as correct.” Id. “When no objections are filed, the de novo review 15 is waived.” Marshall v. Astrue, No. 08cv1735-MJL, 2010 WL 841252, at *1 (S.D. Cal. 16 Mar. 10, 2010) (adopting report in its entirety without review because neither party filed 17 objections to the report despite the opportunity to do so). 18 In this case, neither party has timely filed objections to the Magistrate Judge’s 19 Report. Consequently, the Court may adopt the Report on the basis that it is unopposed. 20 See Reyna-Tapia, 328 F.3d at 1121. Having reviewed the Report, the Court finds that the 21 Report is thorough, well–reasoned and contains no clear error. In Superintendent v. Hill, 22 472 U.S. 445 (1985), the Supreme Court considered the deference courts must afford a 23 prison disciplinary board's finding that a prisoner committed an infraction where the 24 punishment was the loss of good time credits. In Hill, the Court held that if there is even 25 “some evidence” to support the prison's disciplinary decision, the requirements of due 26 process are satisfied. Id. at 455. The Hill standard is minimally stringent. The Court 27 stated that “the relevant question is whether there is any evidence in the record that could 28 support the conclusion reached by the disciplinary board.” Id. at 455–56 (emphasis 1 added). Here, petitioner contests the reliability of the evidence, arguing that the medical 2 report that noted puncture and slash wounds on the victim is fabricated evidence. Pet. at 3 15, 18. Moreover, Petitioner argues the evidence is insufficient because (1) there were no 4 weapons found; (2) all officers reported seeing Petitioner fight with fists; (3) the victim 5 said no weapon was used; and (4) a fence caused the victim’s injuries. See id. at 18-24. 6 Construing the Petition liberally, another possible interpretation of Petitioner’s claim is 7 that he believes the disciplinary committee improperly based its decision on 8 circumstantial evidence. See Lopez v. Uribe, No. 11cv00216, 2012 WL 2367554, at *6 9 n.1 (S.D. Cal. Apr. 11, 2012) (noting that a claim that a prison Disciplinary Committee 10 based their decision on “unreliable evidence” would “essentially be duplicative” of a 11 claim that they improperly based their decision on circumstantial evidence). The Hill 12 standard, however, does not require the Disciplinary Committee to base its findings on 13 direct evidence. See Hill, 472 U.S. at 456–57 (upholding a finding that three inmates 14 committed assault even though “no direct evidence identifying any one of the three 15 inmates as the assailant” was presented). Moreover, this interpretation of Hill as finding 16 circumstantial evidence sufficient to meet the “some evidence” standard is supported by 17 Ninth Circuit precedent. See Castro v. Terhune, 712 F.3d 1304, 1315 (9th Cir. 2013) 18 (finding that evidence was circumstantial and “could support competing inferences” did 19 not preclude the “some evidence” [Hill] standard from being met); Lathan v. Marshall, 20 977 F.2d 589 at *1 (9th Cir. 1992) (unpublished) (“Hill indicates that the requisite 21 quantum of evidence can be circumstantial.”); Embrey v. Menke, 881 F.2d 1083 at *2 22 (9th Cir. 1989) (unpublished) (finding that circumstantial evidence linking petitioner to 23 the alleged infraction was sufficient evidence upon which to base the decision of the 24 disciplinary committee). Accordingly, the Court hereby (1) ADOPTS the Magistrate 25 Judge’s Report in its entirety, and (2) DENIES the Petition. 26 Moreover, a certificate of appealability may issue only if the applicant makes a 27 substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). 28 Petitioner has not made this showing. Because reasonable jurists would not find the 1 Court’s assessment of the claims debatable or wrong, the Court DECLINES to issue a 2 ||certificate of appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 3 IT IS SO ORDERED. 4 5 ||Dated: July 9, 2020 2 □ 6 Hon. athe Ck 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28