Michael Witkin v. Eric Arnold

FILED
NOT FOR PUBLICATION
DEC 17 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL AARON WITKIN, No. 16-17171
Petitioner-Appellant, D.C. No.
2:14-cv-01709-GEB-KJN
v.
ERIC ARNOLD, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Argued and Submitted October 17, 2018
San Francisco, California
Before: THOMAS, Chief Judge, and KLEINFELD and GRABER, Circuit Judges.
Petitioner Michael Aaron Witkin is a state prisoner who appeals the denial
of his petition for a writ of habeas corpus. We AFFIRM.
A senior hearing officer at the facility where Witkin is incarcerated found
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Witkin guilty of violating title 15, section 3005(a) of the California Code of
Regulations, based on “disruptive behavior” in the prison library. At his
disciplinary hearing, Witkin requested to present three witnesses: the librarian and
two inmates, Avila and Cooper. The hearing officer granted the request to have the
librarian present because she was the “reporting employee.” The librarian testified
that Witkin was disruptive in that “[h]e stood up and started asking questions in a
raised voice causing a disturbance and disrupting others. He was loud and
argumentative.” The officer denied the request to have the two inmates testify,
because they had “[n]o relevant testimony.” The hearing officer explained in his
decision that Witkin “mentioned he had other inmate witnesses to this case;
however, he did not have any information on these witnesses. As such, these
potential witnesses were denied.” The disciplinary decision resulted in, among
other punishments, revocation of 30 days of Witkin’s “good time credits.”
Subsequently, Witkin obtained affidavits with more information about the
librarian and the incident. Three inmate witnesses said that they were in the library
at the time of the incident and that Witkin was not disruptive. These later-prepared
affidavits, however, were not presented at the disciplinary hearing.
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Witkin petitioned for a writ of habeas corpus in the state courts. The
Superior Court of California denied his petition on the grounds that testimony from
his witnesses was not improperly excluded and there was “some evidence” to
sustain the disciplinary decision. The California Court of Appeal and the Supreme
Court of California issued summary denials.
Witkin then filed a petition for writ of habeas corpus in federal district court.
The district court denied Witkin’s petition on the merits. Witkin appealed,
claiming that (1) he was denied his due process right to call witnesses, and (2)
there was insufficient evidence to support the prison disciplinary decision.
1. Although the question of whether Witkin exhausted his due process right
to call witnesses claim is debatable, we deny his claim on the merits. His state
court claim was unclear about whether he was asserting a claim based on his due
process right to call witnesses, or whether he was asserting a claim that the hearing
officer lied when he said Witkin had no information about his witnesses.
Whether or not his claim is exhausted, however, it fails on the merits. A
habeas petition “may be denied on the merits, notwithstanding the failure of the
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applicant to exhaust the remedies available in the courts of the State.” See 28
U.S.C. § 2254(b)(2); Jones v. Davis, 806 F.3d 538, 545-46 (9th Cir. 2015); Cassett
v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). Witkin did not demonstrate a due
process violation because he did not show that he gave the hearing officer any
information about his witnesses’ relevancy. The hearing officer had to determine
whether to allow Witkin’s witnesses based on the information Witkin gave him,
not what Witkin might have known but not told the officer. There is no denial of
due process in denying a party leave to call witnesses if the party provides no basis
in the record demonstrating the witnesses have relevant testimony. See Hernandez
v. Holland, 750 F.3d 843, 860-61 (9th Cir. 2014); Zimmerlee v. Keeney, 831 F.2d
183, 187-88 (9th Cir. 1987) (per curiam).
2. Witkin also claims that there was insufficient evidence to support the
hearing officer’s ruling. However, the standard of proof required of the prison was
“some evidence,” a low standard. Superintendent, Mass. Corr. Inst., Walpole v.
Hill, 472 U.S. 445, 457 (1985); Zimmerlee, 831 F.2d at 186. The librarian’s
testimony amounted to “some evidence.” The evidence, if believed, sufficed to
show that Witkin disrupted library operations and engaged in behavior that might
have led to disorder in the library. Though Witkin argues that his disruption of the
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library was not a “serious” rules violation, he cites no authority that shows that
disruption of the entire prison was necessary to support his conviction, nor that the
state court’s determination was an unreasonable application of Supreme Court
precedent or an unreasonable determination of the facts. See 28 U.S.C. § 2254(d).
Though In re Gomez held that refusal of nine meals as part of a larger hunger strike
was insufficient to find a violation of section 3005(a) of the California Code of
Regulations, the case does not speak to whether causing a disturbance to a part of a
facility, in this case the library, by being “loud and argumentative” and “in a raised
voice causing a disturbance and disrupting other” inmates suffices. See In re
Gomez, 201 Cal. Rptr. 3d 124 (Ct. App. 2016). In re Gomez also does not show
that the state court’s determination in Witkin’s case was an unreasonable
application of Supreme Court precedent or an unreasonable determination of the
facts. See 28 U.S.C. § 2254(d).
AFFIRMED.
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