United States District Court, W.D. Washington, Seattle
MATTHEW G. SILVA, Petitioner,
DONALD HOLBROOK, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION.
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
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.
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2014, his release was revoked at a revocation hearing, and he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.
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
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.)
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).
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.)
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).
In Camera Review
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).
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
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
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
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 ...