FINDINGS AND RECOMMENDATIONS

GREGORY G. HOLLOWS, Magistrate Judge.

I. INTRODUCTION

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.1 He challenges, on due process grounds, a prison rules violation report ("RVR") following a prison disciplinary conviction on the charge of obstructing a peace officer's duties by refusing to accept his assigned housing. Respondent has filed an answer.2 Upon careful consideration of the record and the applicable law, the undersigned now issues findings and recommendations that the petition be denied.

II. BACKGROUND

According to the RVR, on August 5, 2013, Sgt. K. McGraw approached a cell occupied solely by petitioner. ECF No. 22-1 at 40. McGraw explained that petitioner would need to take a cellmate in order to accommodate incoming inmates. Id. He also noted that the new cellmate was compatible. Id. Thereafter, McGraw ordered petitioner to accept this new cellmate. Id. Petitioner refused by providing a handwritten note which stated, "I fear for my safety in a cell with other inmates. I am also serving a SHU term for refusing to accept a cellmate." Id. McGraw informed petitioner that petitioner would be receiving an RVR for this conduct.3 Id.

Investigating Officer Flood took petitioner's statement which reads as follows:

ECF No. 22-1 at 41.

At petitioner's disciplinary hearing, petitioner pled not guilty and submitted the aforementioned statement to investigating Officer Flood. ECF No. 22-1, at 42. Petitioner also requested that Investigating Employee Officer Flood interview reporting employee Sgt. McGraw. Id. The senior hearing officer found petitioner guilty of refusing to accept assigned housing, relying on the RVR prepared by Sgt. McGraw and the 1882-B Double Cell Review signed by Lieutenant J. Prentice which noted that the inmates were compatible and both were Sensitive Needs Yard inmates.4 Id. at 42-43. As a result, a 90-day loss of credit forfeiture was assessed against petitioner, as well as loss of other privileges. Id. at 42.

Petitioner completed the administrative appeals through the third level of review. His first state habeas corpus petition, filed with the Sacramento County Superior Court, alleged the disciplinary decision was not supported by some evidence, that he was denied a witness at his disciplinary hearing, and that he was actually innocent. ECF No. 22-1, at 10-12. In a reasoned decision, the Sacramento Superior Court denied the petition on the merits, and found the actual innocence claim had not been exhausted. Id. at 2-6. Petitioner filed a habeas petition alleging the same claims, with the California Court of Appeal, which was summarily denied. ECF No. 22-2 at 2, 4-21. Petitioner then filed a petition with the California Supreme Court, which was denied with a citation to In re Clark, 5 Cal.4th 750, 767-769 (1993). ECF No. 22-3 at 2-18, 22-4 at 2. Petitioner filed his federal petition, commencing this proceeding on February 23, 2015. ECF No. 1.

On February 23, 2016, the district court adopted this court's findings and recommendations, issued January 5, 2016, which recommended denial of respondent's motion to dismiss on the basis of lack of exhaustion and procedural bar.

III. DISCUSSION

A. Standard of Review

When it is clear that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2012); Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir.2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir.2003).

The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 365 (2002). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 562 U.S. at 98.

In light of the California Supreme Court's ruling which was based on Clark's abuse of the writ doctrine, and therefore was neither silent5 nor on the merits, this court must now decide this aspect of petitioner's claim de novo under general principles of federal law.6

B. Applicable Law

A prisoner may challenge a prison disciplinary conviction by petition for writ of habeas corpus if the conviction resulted in the loss of good time credits because credits impact the duration of the prisoner's confinement. Preiser v. Rodriguez, 411 U.S. 475, 487-88, 93 S.Ct. 1827 (1973) (suit seeking restoration of good time credits was "within the core of habeas corpus in attacking the very duration of their physical confinement itself"). In dicta, the court in Preiser noted that such a challenge is permissible even if restoration of the credits would not result in the prisoner's immediate release from prison. Id.

Habeas corpus jurisdiction exists when a petitioner seeks expungement of a disciplinary conviction which falls within the "core of habeas corpus" and which, if successful, would necessarily lead to immediate or speedier release. Nettles v. Grounds, ___ F.3d ____, 2016 WL 4072465 (July 26, 2016) (en banc) (overruling Bostic v. Carlson, 884 F.2d 1267 (9th Cir. 1989) and Docken v. Chase, 393 F.3d 1024 (9th Cir. 2004)).7 A claim lies at the core of habeas corpus if it would "necessarily spell speedier release." See Skinner v. Switzer, 562 U.S. 521, 535 n. 13 (2011). In this case, petitioner is serving a determinate term, and the granting of parole is largely formulaic. Time credits, by their very nature, give a prisoner a shorter term of incarceration. In this case, a restoration of time credits will actually speed the release of petitioner.

While prisoners may not be wholly deprived of their constitutional rights, "there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution . . . ." Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963 (1974). "Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Id. A prisoner's due process rights must be accommodated to the "legitimate institutional needs" of a prison. Bostic, 884 F.2d at 1269 (overruled on other grounds by Nettles, ___ F.3d ___, 2016 WL 4072465 (July 26, 2016)), citing Superintendent v. Hill, 472 U.S. 445, 454-455, 105 S.Ct. 2768 [] (1984). With respect to prison disciplinary proceedings, the minimum procedural requirements that must be met are: (1) written notice of the charges; (2) at least 24 hours between the time the prisoner receives written notice and the time of the hearing, so that the prisoner may prepare his defense; (3) a written statement by the fact finders of the evidence they rely on and reasons for taking disciplinary action; (4) the right of the prisoner to call witnesses and present documentary evidence in his defense, when permitting him to do so would not be unduly hazardous to institutional safety or correctional goals; and (5) legal assistance to the prisoner where the prisoner is illiterate or the issues presented are legally complex. Wolff, 418 U.S. at 563-71. Confrontation and cross examination are not generally required. Id. at 567.

In addition, due process requires that the decision be supported by "some evidence." Hill, 472 U.S. at 455, 105 S.Ct. 2768, citing United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 106, 47 S.Ct. 302, 71 L.Ed. 560 (1927). In Hill, the United States Supreme Court explained that this standard is met if "there was some evidence from which the conclusion of the administrative tribunal could be deduced . . . ." Id. Ascertaining whether this standard is satisfied does not require an examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence." Id. at 455-56. Instead, "the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id.

The Hill Court provided justification for the less demanding standard:

Id. at 456 (citations omitted).

"The Federal Constitution does not require evidence that logically precludes any conclusion but the one reached by the disciplinary board." Id. at 457. Even where the evidence as in Hill "might be characterized as meager," if "the record is not so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary," those findings must be upheld. Id. Therefore, if the procedures outlined above are afforded to a prisoner, and "some evidence" supports the decision of the hearing officer decision, the requirements of due process are met. Id. at 455; Bostic, 884 F.2d at 1269-70.

C. Analysis

1. Due Process Claims

Petitioner contends he was denied his due process rights under Wolff because the guilty findings were not based on "some evidence." He also contends that the denial of his right to call a witness, the reporting employee, deprived him of a fair disciplinary hearing. The Sacramento County Superior Court considered these claims and denied them as follows:

ECF No. 22- at 2-6.

Because the "look-through" doctrine does not apply here where the California Supreme Court's decision was not a silent one; fn. 5 supra; the superior court's reasoning is provided for background purposes, and it may be instructive. However, the undersigned has conducted a de novo review of the record.

The proceedings in this case met the minimum procedural requirements of Wolff. Prior to the hearing, petitioner received copies of the RVR and all reports to be used in evidence, including the investigative employee's report, which were provided more than 24 hours prior to the hearing. Petitioner was assigned an investigative employee. See ECF No. 1 at 31; ECF No. 22-1 at 40. He was given the opportunity to call witnesses and present documentary evidence in his defense. Petitioner requested Sergeant McGraw, reporting employee, as his only witness; however, the RVR notes that Sgt. McGraw's testimony was already contained in the Investigative Employee's Report, and petitioner waived the right to have this witness present at the hearing. ECF No. 1 at 27; ECF No. 22-1 at 42. Petitioner provided two questions to the Investigative Employee that he wanted asked of Reporting Employee McGraw at the disciplinary hearing, but which the Investigative Employee posed to McGraw prior to the hearing and to which McGraw responded. ECF No. 22-1 at 43. Attached to his petition are three questions which petitioner claims he wanted asked in addition to the two questions which were asked of McGraw. ECF No. 1 at 29. Petitioner now states he presented these three additional questions to the SHO who conducted the disciplinary hearing, but these questions are not mentioned in the RVR and are not supported by the remainder of the record.8 Id. In fact, it was noted in the RVR that "[a]t the time of the disciplinary hearing Larkin indicated he had no further witness issues." ECF No. 1 at 33; ECF No. 22-1 at 42. The RVR also noted that "Larkin did not request for the I.E. to interview any additional witnesses, staff or inmate." ECF No. 22-1 at 44. Petitioner also submitted a written statement through the investigating employee. ECF No. 1 at 32-33; ECF No. 22-1 at 41-42. Furthermore, petitioner requested three documents for the hearing, all of which were supplied by the investigative employee. ECF No. 22-1 at 44. There is no evidence in the record to support petitioner's contention that he requested a witness at hearing and was denied. To the extent petitioner claims he was not afforded the procedural protections required under Wolff, this claim should be denied.

The brunt of petitioner's argument is that the disciplinary decision was not based on "some evidence," and that he was denied his right to call witnesses, specifically the Reporting Employee, as required under Wolff, which violated petitioner's right to a fair hearing. ECF No. 1 at 7. There was "some evidence" to support the decision rendered on the disciplinary charge, in the form of the investigative employee's report, the RVR, and the Double-Cell Review. As to petitioner's claim that he was denied a witness at the disciplinary hearing, the record refutes that claim as petitioner waived his right by conceding that he had no witness issues at the hearing, and did not request that the investigative employee interview any witnesses other than the Reporting Employee. Here, all of petitioner's questions were presented to Reporting Employee Sgt. McGraw and he answered them. Although prison officials may deny a prisoner's request to present witnesses if the witnesses' testimony would be unnecessary, Wolff, 418 U.S. at 566, the officials here did not deny his request because he waived his request and agreed to proceed with the hearing.

Even if petitioner's assertion that he was denied a witness was supported by evidence, the right to call witnesses at a disciplinary hearing is not absolute. Wolff gives prison officials flexibility to keep the hearing within reasonable limits and allows them to refuse to call witnesses when doing so would risk reprisal or undermine authority, or when the evidence would be irrelevant, unnecessary, or hazardous. Wolff, 418 U.S. at 566. "[T]he right to call witnesses [is] a limited one, available to the inmate `when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.'" Ponte v. Real, 471 U.S. 491, 499 (1985) (quoting Wolff, 418 U.S. at 566); see also Pannell v. McBride, 306 F.3d 499, 503 (7th Cir. 2002) ("[P]risoners do not have the right to call witnesses whose testimony would be irrelevant, repetitive, or unnecessary.") Given these limitations, the Supreme Court has observed that a constitutional challenge to a prison official's refusal to allow an inmate to call witnesses may "rarely, if ever, be successful." Ponte, 471 U.S. at 499. Here, the Reporting Employee's testimony would have been unnecessary as he had already been interviewed by the Investigating Employee who asked all the questions requested by petitioner. As such, these claims should be denied.

Based on a de novo review of the record, the undersigned finds that petitioner's procedural due process rights were not violated in this disciplinary proceeding, and some evidence supports the disciplinary decision. Accordingly, petitioner is not entitled relief.

2. Actual Innocence

Petitioner asserts actual innocence under Schlup v. Delo, 513 U.S. 298 (1995).9

Although petitioner contends he is actually innocent under Schlup, the undersigned construes petitioner's claim as a Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853 (1993) claim of innocence instead. The Supreme Court explained the difference between a Schlup claim and a Herrera claim as follows:

Schlup, 513 U.S. at 313-15. In this instance, there is no procedural bar to reviewing the merits of petitioner's habeas petition. As such, the undersigned considers the viability of petitioner's Herrera actual innocence claim.

The standards required to prove a Herrera actual innocence claim set a high hurdle for this petitioner. In Herrera, a majority of the Supreme Court assumed, without deciding, that a freestanding claim of actual innocence is cognizable under federal law. In this regard, the court observed that "in a capital case a truly persuasive demonstration of `actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim." 506 U.S. at 417. A different majority of the Supreme Court explicitly held that a freestanding claim of actual innocence is cognizable in a federal habeas proceeding. Compare 506 U.S. at 417 with 506 U.S. at 419, 430-37; see also Jackson v. Calderon, 211 F.3d 1148, 1165 (9th Cir. 2000) (noting that a majority of the Justices in Herrera would have found a freestanding claim of actual innocence). Although the Supreme Court did not specify the standard applicable to this type of "innocence" claim, it noted that the threshold would be "extraordinarily high" and that the showing would have to be "truly persuasive." Herrera, 506 U.S. at 417. More recently, the Supreme Court declined to resolve whether federal courts may entertain independent claims of actual innocence but concluded that the petitioner's showing of innocence in the case before it fell short of the threshold suggested in Herrera. House v. Bell, 547 U.S. 518, 554-51, 126 S.Ct. 2064 (2006). Finally, the Supreme Court has recently once again assumed, without deciding, that a federal constitutional right to be released upon proof of "actual innocence" exists. District Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 129 S.Ct. 2308 (2009). In doing so, the Supreme Court noted that it is an "open question" whether a freestanding claim of actual innocence exists and that the court has "struggled with it over the years, in some cases assuming, arguendo, that it exists while also noting the difficult questions such a right would pose and the high standard any claimant would have to meet." 557 U.S. at 71.

The Ninth Circuit Court of Appeals has likewise assumed that freestanding innocence claims are cognizable in both capital and non-capital cases and has also articulated a minimum standard of proof in order for a habeas petitioner to prevail on such a claim. Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir.1997) (en banc). Under that standard "[a] habeas petitioner asserting a freestanding innocence claim must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent." Id. at 476-77; see also Jackson, 211 F.3d at 1165. The petitioner's burden in such a case is "extraordinarily high" and requires a showing that is "truly persuasive." Carriger, 132 F.3d at 476 (quoting Herrera, 506 U.S. at 417).

Thus, at minimum, petitioner must show that the new evidence "would be sufficient to establish by clear and convincing evidence that ... no reasonable factfinder would have found [him] guilty of the underlying offense." West v. Ryan, 652 F.3d 1071, 1081 (9th Cir. 2011) (internal quotations and citations omitted). Petitioner cannot meet that burden. In support of his actual innocence argument, petitioner shows that he made several complaints to prison officials regarding his "safety concerns." However, at no point does he claim innocence of the underlying offense—the disciplinary conviction arising from the August 2013 RVR. See ECF No. 1, at 15-17. Petitioner does not argue that he actually complied with Sergeant McGraw's order that petitioner accept a cellmate. Instead, he appears to argue that his subsequent, yet successful appeal of his status as an inmate who can be placed in a double cell reduces his culpability.10 Reduced culpability is not Herrera actual innocence. See Carriger, 132 F.3d at 476 (actual innocence requires affirmative prove of innocence as opposed to casting doubt on the sufficiency of the evidence).

One can assume that at some point, a prisoner has a substantive due process right to protect himself from situations which present a grave and imminent probability of death or great bodily injury, even if prison officials are the ones unreasonably ordering the prisoner into such a situation. See generally, Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028 (1990) (substantive due process right not to have psychotropic drugs administered unless certain preconditions are met.) See also, Dunn v. Swarthout, 2014 WL 3529915 (E.D. Cal. 2014) (exploring the substantive due process right to self-defense by a prisoner). However, wherever the border line for legitimate self-defense should be drawn in the prison context, the situation here falls far short of that line. Petitioner here describes no more than a general fear for his safety based on prison culture and perhaps some bad experiences in the past.

As such, petitioner's actual innocence claim should be denied.

IV. CONCLUSION

IT IS HEREBY RECOMMENDED that:

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).