Silva v. Holbrook

          ORDER ADOPTING REPORT AND RECOMMENDATION.

          JOHN C. COUGHENOUR UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Petitioner Matthew G. Silva's objections (Dkt. No. 41) to the Report and Recommendation filed by the Honorable Mary Alice Theiler, United States Magistrate Judge (Dkt. No. 35). Having thoroughly considered the briefing and the relevant record, the Court finds oral argument unnecessary and hereby OVERRULES the objections and ADOPTS the Report and Recommendation for the reasons explained herein.

         I. BACKGROUND

         Petitioner is a state prisoner confined in the Washington State Penitentiary in Walla Walla, Washington. In 2005, he was convicted of first-degree robbery and sentenced to a term of 150 months. In February 2013, he was released to serve the remainder of his sentence on community custody. However, in 2014, his release was revoked at a revocation hearing, and he was returned to serve the remainder of his 150-month sentence in prison. Petitioner's 2014 revocation hearing is the basis of his current 28 U.S.C. § 2254 action.

         As outlined in Judge Theiler's Report and Recommendation, the Washington Court of Appeals summarized the relevant facts of Petitioner's revocation hearing as follows. (Dkt. No. 35 at 2-4) (citing Dkt. No. 18, Ex. 2 at 2-4). Petitioner was served with a notice of his alleged violations, a list of evidence the Department of Corrections (DOC) planned to present, and a copy of his violation report, which included a recommended sanction of returning him to prison for the balance of his sentence. (Id.) At the 2014 revocation hearing, Petitioner was found guilty of four violations-(1) failure to report, (2) failure to participate in urinalysis, (3) failure to participate in chemical dependency treatment, and (4) failure to pay legal financial obligations- at his seventh violation process since his release in February 2013. (Id.) Petitioner pled guilty to violations 1 and 4 and contested violations 2 and 3. (Id.) However, Petitioner stated that he did not report to his community corrections officer (CCO) because he was “dirty” the “whole time” and had not participated in outpatient chemical dependency treatment. (Id.) Petitioner was found guilty of all four violations. (Id.)

         Petitioner's CCO's report was introduced after the hearing officer found Petitioner guilty of the alleged community custody violations. (Dkt. No. 18, Ex. 5, Ex. 6, Attach. A at 32-34.) The CCO painted a negative picture of Petitioner, stating that he had been “argumentative and manipulative throughout the course of his time on supervision.” (Id. at 34-36.) The CCO also claimed that Petitioner failed to attend outpatient treatment, which the CCO had arranged for Petitioner. (Id. at 35.) In response to the CCO report, Petitioner acknowledged his difficult relationship with the CCO, challenged the CCO's report as lacking factual support, claimed that he was not manipulative, and alleged that the CCO lied about his failure to attend treatment. (Id. at 36-45.)

         Petitioner then filed many state court petitions to the Washington Court of Appeals, challenging his 2014 revocation of release on community custody. (Dkt. No. 18, Ex. 2.) After the petitions were dismissed, he moved for discretionary review by the Washington Supreme Court. (Dkt. No. 18, Ex. 7.) The Washington Supreme Court denied review without comment. (Dkt. No. 18, Ex. 8.) Petitioner now brings this timely § 2254 action to challenge the 2014 revocation of his release on community custody. Petitioner also requested an evidentiary hearing on the state court record (Dkt. No. 26). Respondent Donald Holbrook requested an in camera review of the audio recording of Petitioner's community custody revocation hearing (Dkt. No. 30).

         Judge Theiler recommends that Petitioner's motion for an evidentiary hearing be denied, Respondent's motion for in camera review be denied, and this § 2254 action be dismissed with prejudice. (Dkt. No. 35 at 2.) Judge Theiler also recommends that a certificate of appealability be granted in part and denied in part. (Id.) Petitioner objects to nearly all of Judge Theiler's recommendations. (Dkt. No. 41.)

         II. DISCUSSION

         A. Evidentiary Hearing

         Petitioner objects to Judge Theiler's recommendation that an evidentiary hearing is unnecessary because he claims “the issues cannot be resolved solely by reference to the state court record.” (Dkt. No. 41 at 5.) However, this Court agrees with Judge Theiler that the issues can in fact be resolved by reference to the state court record alone. See Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (“[A]n evidentiary hearing is not required on issues that can be resolved by reference to the state court record.”). Petitioner's objection is OVERRULED. The Court ADOPTS Judge Theiler's recommendation to DENY Petitioner's request for an evidentiary hearing (Dkt. No. 26).

         B. In Camera Review

         Petitioner does not object to Judge Theiler's recommendation that in camera review of the audio recording of Petitioner's hearing is unnecessary. (Dkt. No. 35 at 7.) This Court agrees with Judge Theiler and ADOPTS her recommendation to DENY in camera review of the audio recording (Dkt. No. 30).

         C. Habeas Petition

         Petitioner alleges the following grounds for habeas relief:

1. Petitioner's federal right to due process was violated where he was denied prehearing access to legal materials to prepare for his community custody hearing, at which he was forced to represent himself.

2. Petitioner's federal right to due process was violated where DOC provided him with written notice that the worst sanction he could receive for any violation was 30 days in jail, then imposed a sanction 33 times that amount.

3. Petitioner's federal right to due process was violated where DOC lacks authority to sanction over 30 days but imposed 33 times that amount.

4. Petitioner's federal right to due process was violated where, pursuant to an antiquated administrative regulation, DOC refused to allow him to be represented by an attorney.

5. Petitioner's federal right to due process was violated where his witnesses were never called because DOC maintains a blanket practice of denying live witnesses at all community custody hearings.

6. Petitioner's federal due process right to confront and cross-examine the reporting CCO was violated where the sole evidence presented at the hearing was hearsay and no finding of good cause to forego live testimony was entered.

7. Petitioner's federal right to equal protection was violated where similarly situated community custody violators received sanctions of 30 days in jail or less.

8. Petitioner's federal right to freedom from retaliation for exercising his right to access the court was violated where he was singled out for filing a civil lawsuit against his CCO.

9. Petitioner's federal right to due process was violated where the sanction order contains no written statement of evidence relied upon or reasons for the sanction, while the record of the administrative hearing is inadequate and disputed.

10. The sanction order must be reversed because the hearing officer misapprehended the law, where he believed that his discretion to revoke existed under an outdated law that required revocation of community ...