1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

FRED GRAVES,

Petitioner, No. CIV S-04-1279 LKK GGH P

vs.

MIKE KNOWLES, et al., ORDER AND

Respondent. FINDINGS AND RECOMMENDATIONS

 /

I. Introduction

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. This action is proceeding on the original petition filed July

2, 2004. Petitioner challenges his conviction of a prison disciplinary for distribution of a

controlled substance in violation of Cal. Code of Regs. tit. 15, § 3016. After carefully reviewing

the record, the court recommends that the petition be denied.

On February 15, 2005, the court ordered petitioner to show cause why this action

should not be dismissed for lack of jurisdiction. It appeared that petitioner was no longer “in

custody” for this conviction when he filed this action. Maleng v. Cook, 490 U.S. 488, 490, 109

S. Ct. 1923, 1925 (1989) (per curiam) (quoting 28 U.S.C. § 2241(c)(1)). On March 28, 2005,

petitioner filed a response to the show cause order. After carefully reviewing the record, the

Case 2:04-cv-01279-LKK -GGH Document 27 Filed 09/12/05 Page 1 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

court finds that petitioner meets the custody requirement because he was still required to attend

Alcoholics Anonymous and Narcotics Anonymous as punishment for his conviction when he

filed this action. See Dow v. Circuit Court of the First Circuit, 995 F.2d 922, 923 (9th Cir. 1993)

(per curiam) (a sentence of 14 hours of attendance at an alcohol rehabilitation program renders

someone “in custody.”). Accordingly, the February 15, 2005, order to show cause is discharged.

On March 31, 2005, petitioner filed a motion to amend his response to the show

cause order and a request to hold this action in abeyance. On May 26, 2005, petitioner filed a

motion to file another amendment to his response to the show cause order and a request to

withdraw the motion to hold this action in abeyance. Because the show cause order is

discharged, these motions are denied as unnecessary. 

II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)

The AEDPA “worked substantial changes to the law of habeas corpus,”

establishing more deferential standards of review to be used by a federal habeas court in

assessing a state court’s adjudication of a criminal defendant’s claims of constitutional error. 

Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997). 

In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000), the Supreme

Court defined the operative review standard set forth in § 2254(d). Justice O’Connor’s opinion

for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy

between “contrary to” clearly established law as enunciated by the Supreme Court, and an

“unreasonable application of” that law. Id. at 1519. “Contrary to” clearly established law applies

to two situations: (1) where the state court legal conclusion is opposite that of the Supreme

Court on a point of law, or (2) if the state court case is materially indistinguishable from a

Supreme Court case, i.e., on point factually, yet the legal result is opposite.

“Unreasonable application” of established law, on the other hand, applies to

mixed questions of law and fact, that is, the application of law to fact where there are no factually

on point Supreme Court cases which mandate the result for the precise factual scenario at issue. 

Case 2:04-cv-01279-LKK -GGH Document 27 Filed 09/12/05 Page 2 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

Williams (Terry), 529 U.S. at 407-08, 120 S. Ct. at 1520-1521 (2000). It is this prong of the

AEDPA standard of review which directs deference to be paid to state court decisions. While the

deference is not blindly automatic, “the most important point is that an unreasonable application

of federal law is different from an incorrect application of law....[A] federal habeas court may not

issue the writ simply because that court concludes in its independent judgment that the relevant

state-court decision applied clearly established federal law erroneously or incorrectly. Rather,

that application must also be unreasonable.” Williams (Terry), 529 U.S. at 410-11, 120 S. Ct. at

1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the

objectively unreasonable nature of the state court decision in light of controlling Supreme Court

authority. Woodford v. Viscotti, 537 U.S. 19, 123 S. Ct. 357 (2002).

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, 123 S.

Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is

contrary to, or an unreasonable application of, established Supreme Court authority. Id. An

unreasonable error is one in excess of even a reviewing court’s perception that “clear error” has

occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S. Ct. 1166, 1175 (2003). Moreover, the

established Supreme Court authority reviewed must be a pronouncement on constitutional

principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules

binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S. Ct. at 366.

However, where the state courts have not addressed the constitutional issue in

dispute in any reasoned opinion, the federal court will independently review the record in

adjudication of that issue. “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 v. Thompson, 336 F.3d 848, 853 (9th Cir.

2003).

\\\\\

Case 2:04-cv-01279-LKK -GGH Document 27 Filed 09/12/05 Page 3 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 1

 The Superior Court also addressed the merits of a claim not raised in this petition.

4

In reviewing a state court’s summary denial of a habeas petition, the court “looks

through” the summary disposition to the last reasoned decision. Shackleford v. Hubbard, 234

F.3d 1072, 1079 n. 2 (9th Cir. 2000) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.

Ct. 2590 (1991)). In the instant case, the Sacramento County Superior Court issued a reasoned

decision addressing petitioner’s claim that there was not sufficient evidence to support his

conviction.1 The California Court of Appeal and California Supreme Court issued opinions,

without reasons, denying petitioner’s state habeas petitions. Accordingly, as to petitioner’s

sufficiency of evidence claim, the court looks through to the reasoned decision of the Superior

Court to determine whether its decision was contrary to or an unreasonable application of

Supreme Court authority. As to the remaining claims, for which there is no reasoned opinion, the

court conducts an independent review of the record. 

III. Discussion

In order to put petitioner’s claims in context, the court will set forth the 

background information contained in petitioner’s rules violation report:

On April 8, 2002, at 2104 hours, Correctional Officer C. Weston conducted a

random cell search of 5B-AA-1-05 solely occupied by inmate COLLINS, I., C23149 and GRAVES, F., B-59365. At 2115 hours, Inmates GRAVES and

COLLINS were escorted to the Custody Complex and placed into holding cells.

At 2115 hours, Officer Weston performed a search of cell AA-1-05. At 2145

hours Officer Weston removed the base from a “Windmere” electric fan, located

at the left foot/leg, of the bottom bunk in cell AA-1-05. Inside the base of the fan

were three bindles of a dark brown, tar like substance wrapped in cellophane. At

2235 hours, Officer Weston performed a Narcotics Identification Systems Field

Test (NIK) utilizing test A,Lot #9911-5, and test B,Lot #9706-2. Bindle # 1

weighed 1.1 grams before testing and 1.0 grams after testing. All tests were

presumptive positive for heroin. The total weight including cellophane before

testing was 3.9 grams and 3.6 grams after testing.

At 2335 hours, Officer Weston advised COLLINS of his Miranda Rights pursuant

to the Miranda Decision. COLLINS waived his right to remain silent and made a 

statement. At 2345 hours, Officer Weston advised GRAVES OF HIS Miranda 

Rights pursuant to the Miranda Decision. GRAVES waived his right to remain 

silent and made a statement.

Case 2:04-cv-01279-LKK -GGH Document 27 Filed 09/12/05 Page 4 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

5

At 2355 Officer Weston collected a urine sample from COLLINS and placed it

into evidence locker # 7. On March 9, 2002, at 1535 hours, Officer Weston

collected a urine sample from GRAVES and placed it into evidence locker # 8. 

Both inmates were asked if they would waive all testing by the contracted

laboratory in this matter and admit guilt. Both inmates refused.

The Heroin, fan and pictures (prints as well as 1.44 MB floppy disc) were all

labeled by Officer Weston and placed into evidence locker # 7 located in the

Custody Complex. Bindle # 3 weighed approximately 1. 6 grams, including the

clear cellophane wrapping. All three bindles weighed approximately 3.9 grams

total, including the clear cellophane wrapping. At approximately 2235 hours, I

performed a Narcotics Identification System Field test (NIK) on a small portion of

bindle # 1. Test “A,” lot # 9911-5, indicated opium alkaloids with a purple color

change. I then utilized Test “B,” lot # 9706-2, to confirm the type of opium

alkaloids. Test “B” proved presumptively positive for Heroin with a yellow to

increasing darker color change. I tested bindle # 2 using test “B” only. Test “B”

on bindle # 2 proved presumptively positive for Heroin with a yellow to

increasing darker yellow test “B” only. I tested bindle # 3 using test “B” only. 

Test “B” on bindle # 3 proved presumptively positive for Heroin with a yellow to

increasing darker yellow color change. At approximately 2310 I positively

identified inmates Graves and Collins by their inmate identification cards. At

approximately 2335 hours, I read inmate Collins, C-23149 his Miranda Rights

pursuant to the Miranda Decision. Inmate Collins acknowledged his rights,

signed the Notice of Rights form and elected to answer the following questions. 

Question # 1 “Do you know what was found in the cell.” Inmate Collins

answered “No” Question # 2 “Do you own any fans in cell 5-AA1-05.” Inmate

Collins answered “No.” Question # 3 “Do you know who owns the broken white

fan in your cell.” Inmate Collins answered “My cellie told me that was his fan.” I

then informed inmate Collins of the discovery of heroin in his assigned cell and

that pursuant with Director’s rule 3290(e) I asked him if he would waive all

testing by the contracted laboratory in this disciplinary matter and admit guilt. 

Inmate Collins refused to sign the Nik Drug Screen Test Report. At

approximately 2345 hours, I read inmate Graves, B-59365 his Miranda Rights

pursuant to the Miranda Decision. Inmate Graves acknowledged his rights, signed

the Notice of Rights form and elected to answer the following questions. 

Question # 1 “Who owned the broken white fan in your cell 5-AA1-05.” Inmate

Graves answered “I just bought the fan. It was under my bed.” Question #2

“Who did you buy the fan from.” Inmate Graves refused to answer this question. 

Question # 3 “When did you buy the fan.” Inmate Graves answered, “Last

Monday, April 1st.” Question # 4 “Did you know about the heroin inside the

fan.” Inmate Graves answered, “No, I just bought it. The fan was completely

mine. I bought it off the tier for $1.00. It didn’t work. My cellie didn’t know

about it.” I then informed inmate Graves of the discovery of heroin in his

assigned cell and that pursuant with Director’s Rule 3290(e) I asked if he would

waive all testing by the contracted laboratory in this disciplinary matter and admit

guilt. Inmate Graves refused to sign the NIK Drug Screen Test Report. At

approximately 2355 hours, I ordered inmate Collins to supply a urine specimen. 

Inmate Collins complied with my order. The urine sample was labeled with the

date “4/08/02”, my initials “CLW” and Badge # “38284” and secured in evidence

locker # 7 located in the Custody Complex. I then completed an Evidence

Envelope, secured the heroin inside a ziplock type plastic bag, labeled with a

Case 2:04-cv-01279-LKK -GGH Document 27 Filed 09/12/05 Page 5 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

6

piece of evidence tape with the date “4/09/02” my initials “CLS” and Badge #

“38284” and placed it in the same envelope. I also labeled the white plastic fan

with a piece of evidence tape with the date “4/08/02” my initials “CLW” and

Badge # “38284.” I also secured the white plastic fan in evidence locker # 7. All

evidence was secured and locked in evidence locker # y on 4/09/02 at 0330 hours. 

On April 9, 2002 at approximately 1535 hours, I ordered inmate Graves to supply

a urine specimen. Inmate Graves complied with my order. The urine sample was

labeled with the date “4/09/02,” my initials “CLW” and Badge # “38284” and

secured in evidence locker # 8, located in the Custody Complex.

Answer, Exhibit 3.

The Rules Violation Report describes what occurred at the disciplinary hearing:

On Sunday, July 21, 2002, at approximately 2000 hours, Inmate GRAVES was 

reminded of his rights pursuant of Miranda Decision and agreed to participate in 

this hearing. Inmate GRAVES who on 5/16/02, requested his hearing be 

postponed pending District Attorney’s Referral, revoked the request on June 22, 

2002. Due to an Administrative Error, the hearing was not conducted until July 

21, 2002, which does not meet the thirty day time constraints mandated by CCR 

3320(a). Therefore, the forfeiture of credits as a penalty for the misconduct is 

prohibited. All other time constraints were adhered to and all other due process 

was afforded. As noted in the reporting employee’s written report Inmate 

GRAVES is not a participant in the mental Health Services Delivery System. 

Inmate GRAVES meets the criteria for the assignment of an Investigative 

Employee. Officer M. Feryance assumed those duties as his report, which was 

carefully reviewed by the SHO contained on the CDC 1150A. Inmate GRAVES 

does not meet the criteria for the assignment of a Staff Assistant (SA) per CCR 

3315(d)(2). Inmate GRAVES requested Lieutenant J. Valencia, Sergeant S. 

Rowan, Officer Meadows, Officer McCoy, Officer Shambre and the Reporting 

Employee Officer, C. Weston, as witnesses at this hearing.

The following witnesses were denied by the Senior Hearing Officer: Officer 

Meadows, Officer McCoy and Officer Shambre as Inmate GRAVES was unable 

to demonstrate that these witnesses had relevant or additional information to offer 

in this hearing per 3315(e)1B. No confidential information was provided or 

reviewed in the adjudication of this disciplinary hearing. The charges were read 

to Inmate GRAVES he acknowledged understanding the charges, pled “NOT 

GUILTY” and chose to remain silent.

At this time the SHO asked Inmate GRAVES the following questions:

SHO: Was the heroin found in the fan yours?

I/M GRAVES: No.

SHO: How did you come by the fan?

I/M GRAVES: I bought it for a dollar.

SHO: From whom did you buy the fan?

Case 2:04-cv-01279-LKK -GGH Document 27 Filed 09/12/05 Page 6 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

7

I/M GRAVES: I’m not telling you.

SHO: What currency did you use?

I/M GRAVES: Soups.

SHO: Did your cell partner ever use the fan?

I/M GRAVES: No.

SHO: Do you use heroin?

I/M GRAVES: No.

At this time the SHO called Sergeant Rowan as a witness:

SHO: Are you familiar with this inmate and the RVR being adjudicated here 

today?

Sgt. Rowan: Yes.

At this time Inmate GRAVES asked Sgt Rowan the following question:

I/M GRAVES: Did you give Officer Weston permission to search my cell?

Sgt. Rowan: No, I did not.

SHO: Is it your expectation that an officer must get permission to search an 

inmate’s cell?

Sgt. Rowan: No.

At this time, via speaker telephone, Inmate GRAVES asked Officer Weston the 

following questions:

I/M GRAVES: Why wasn’t the rest of the cell searched?

C/O Weston: It was searched.

I/M GRAVES: Do you still have the bindle material?

C/O Weston: It was all placed in the evidence envelope.

I/M GRAVES: Did another officer tell you I was selling drugs?

C/O Weston: There may have been a rumor. I have no idea.

SHO: Did this rumor prompt your cell search?

C/O Weston: No, I had heard it several weeks ago. This was a routine search.

Case 2:04-cv-01279-LKK -GGH Document 27 Filed 09/12/05 Page 7 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

8

I/M GRAVES: You said at another hearing that you searched it on a hunch. Was 

it searched on a hunch?

C/O Weston: Yes.

SHO: Are you stating that you used confidential information to prompt the 

search?

C/O Weston: No, it was still picked randomly.

I/M GRAVES: Was there dust on the tape that held the wrapping material?

C/O Weston: I don’t recall.

SHO: Officer Weston, I’m having a problem reconciling whether or not this was a

random search or whether confidential information was used in choosing this cell 

for a search. Would you clarify this point for me?

C/O Weston: It was random. I had no probable cause. I had some time and it 

was a good time to search some cells.

At this time the SHO asked Lieutenant Valencia the following question:

SHO: Are you familiar with Inmate GRAVES’ RVR for Distribution of 

Controlled Substance?

Lt. Valencia: Yes.

At this time Inmate GRAVES asked Lieutenant Valencia the following questions:

I/M GRAVES: Were you told they would be looking for drugs?

Lt. Valencia: No.

I/M GRAVES: Did you help with the search?

Lt. Valencia: No.

I/M GRAVES: Were you present during the search?

Lt. Valencia: No.

FINDING: Inmate GRAVES was found GUILTY of violating CCR # 3016(c) 

DISTRIBUTION OF A CONTROLLED SUBSTANCE (HEROIN). The

preponderance of the evidence submitted at the hearing does substantiate the 

charge. The following were considered:

1. The reporting employee’s written report, which describes his actions as he

discovered what he believed to be a controlled substance discovered in a fan 

Case 2:04-cv-01279-LKK -GGH Document 27 Filed 09/12/05 Page 8 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

9

located in Cell 5/AA1-05, to which Inmate GRAVES was assigned on April 8, 

2002.

2. The Controlled Substance Analysis Report received from Sacramento County 

Laboratory of Forensic Services (Lab No. -2-03607-001) on May 7, 2002, which 

determined that the substance discovered by the reporting employee was heroin.

3. The total weight of the heroin (as determined by the above mentioned report) 

was 3.05 grams. This amount in an institutional setting is more than one inmate 

would have available for personal use. The basis for this determination in the 

Senior Hearing Officer’s seven years experience in conducting Serious CDC 115 

hearings and over nineteen years as a Correctional Employee.

4. The fact that there were three separate bindles, which would indicate that the 

bindles were for more than one person’s use and is typical of how heroin is 

packaged for sale, not personal usage. This determination was made on the same 

basis as Finding No. 3. 

Answer, Exhibit 5.

The petition raises eleven claims.

A. Claim 1: Denial of Witnesses; Claim 6: Limit of Questions

The background to these claims is as follows. Petitioner claims that he appeared

before Lieutenant Adams for his disciplinary hearing on July 21, 2002. Pet., Statement of Fact,

p. 2: 6-7. Petitioner contends that his request to call Officers McCoy, Shampre and Meadows

was initially denied, although they had participated in the search of his cell. Id., p. 2: 9-11. 

Officer Weston participated at the hearing via telephone. Id., p. 2: 10-13. 

Petitioner was permitted to ask Officer Weston six questions. Id., p. 2: 12-13. Petitioner’s

request to call inmate Collins as a witness was not addressed. Id., p. 2: 17-20. 

Sergeant Rowan also appeared as a witness at the hearing. Id., p. 2: 19-20. 

Lieutenant Valencia appeared as a witness via telephone. Id., p. 2: 20-22. When petitioner

questioned Lieutenant Valencia, he mistakenly thought he was Officer Shampre or McCoy. Id.,

p. 2: 21-24. Based on this misunderstanding, petitioner asked Lieutenant Valencia questions

regarding the cell search, although Lieutenant Valencia had not participated in the search. Id., p.

2: 23-24. 

\\\\\

Case 2:04-cv-01279-LKK -GGH Document 27 Filed 09/12/05 Page 9 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

10

At the hearing, Sergeant Rowan told Lieutenant Adams that each staff member

involved in a cell search must prepare their own report of the incident. Id., p. 3: 7-9. Based on

this response, Lieutenant Adams tried to call Officer Shampre, Meadows and McCoy on the

phone with no luck. Id., p. 3: 9-11. Lieutenant Adams then postponed the hearing so that these

officers could be present. Id., p. 3: 11-13.

On July 25, 2002, Officer Feryance told petitioner that Lieutenant Adams said that

if petitioner waived his witnesses, they could conclude the hearing on July 26, 2002. Id., p. 3:

15-16. Petitioner told Officer Feryance that he wanted his witnesses. Id., p. 3: 16-17. On July

31, 2002, petitioner was escorted to the hearing room. Id., p. 3: 17-18. At that time, Lieutenant

Adams told petitioner that his request for witnesses was denied and backdated the rules violation

report to indicate that the hearing concluded on July 21, 2002. Id., p. 3: 18-20.

Under the Fourteenth Amendment’s Due Process Clause, a prisoner is entitled to

certain due process protections when he is charged with a disciplinary violation. Wolff v.

McDonnell, 418 U.S. 539, 564-571, 94 S. Ct. 2693, 2978-2982 (1974). Such protections include

the limited right to call witnesses, to present documentary evidence and to have a written

statement by the factfinder as to the evidence relied upon and the reasons for the disciplinary

action taken. Id. Prison officials may deny witnesses where their testimony would unduly

extend the hearing or be unnecessary. Id.

The Rules Violation Report does not reflect petitioner’s request to call inmate

Collins as a witness. Therefore, this request apparently went unaddressed. However, as noted by

respondent, this oversight did not prejudice petitioner given his admission of ownership of the

fan. In the traverse, petitioner argues that there was “much information” that Collins could have

provided to petitioner’s defense. Traverse, p. 36: 3-4. The only specific information that

petitioner describes inmate Collins as having been able to testify to concerns Officer Weston’s

testimony at Collins’s May 14, 2002, suitability hearing. For the reasons discussed below, this

testimony was not relevant to petitioner’s defense.

Case 2:04-cv-01279-LKK -GGH Document 27 Filed 09/12/05 Page 10 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

11

Petitioner contends that at inmate Collins’s suitability hearing, Officer Weston 

testified that he searched the cell because another officer had told him that petitioner was selling

drugs to pay off a gambling debt. Officer Weston’s motive in searching petitioner’s cell was not

relevant to petitioner’s guilt or innocence. Hudson v. Palmer, 468 U.S. 517, 530 (1984)

(prisoners do not retain any Fourth Amendment protections against unreasonable searches in

their cells). Lieutenant Adams did not rely on any confidential information received by Officer

Weston regarding petitioner’s activities. See Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir.

1987) (per curiam) ( a disciplinary decision based on statement of an unidentified inmate

informant satisfies due process if 1) the record contains some factual information which the

committee can reasonably conclude that the information was reliable; and 2) the record contains

a prison official’s affirmative statement that safety considerations prevent the disclosure of the

informant’s name.”) Accordingly, the testimony of inmate Collins regarding statements made by

Officer Weston at his suitability hearing was unnecessary.

Petitioner contends that on July 31, 2002, Lieutenant Adams denied his request to

call Officers McCoy, Shampre and Meadows as witnesses apparently because they were

unavailable. As discussed above, petitioner claims that Lieutenant Adams had postponed the

hearing after realizing that these officers had prepared reports based on their participation in the

search. Petitioner argues that because these officers participated in the search, they had relevant

information. Respondent disputes this point, claiming that Officers Meadows and Shambre

simply escorted petitioner from the cell during the search.

If petitioner’s version of events is correct, then Lieutenant Adam’s decision

denying petitioner’s request to call Officers Meadows, Shambre and McCoy as witnesses—after

he had in effect granted the request—violated petitioner’s right to due process because the

decision was based simply on the temporary unavailability of these witnesses. However, for the

following reasons, this error was harmless. An error of constitutional magnitude is harmless if it

did not have a “substantial and injurious effect” on the decision-maker’s verdict. Brecht v.

Case 2:04-cv-01279-LKK -GGH Document 27 Filed 09/12/05 Page 11 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

12

Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 1721 (1993).

Petitioner has not demonstrated that Officers Meadows, Shambre or McCoy

would have provided any testimony exonerating him of the offense. While petitioner admitted

ownership of the fan, he denied ownership of the heroin. Petitioner’s defense was apparently that

the heroin belonged to another inmate, other than inmate Collins. The only person who had any

probative evidence regarding where the heroin came from was petitioner because he knew who

owned the fan prior to him. However, he refused to divulge this information. 

Moreover, petitioner’s defense was improbable—not many inmates would sell to

another inmate for $1 a fan whose base was full of heroin. Officers Meadows, Shambre and

McCoy clearly had no knowledge regarding who owned the fan prior to petitioner. Their

testimony regarding the circumstances of the search would have been cumulative to evidence and

testimony already presented at the hearing. Under these circumstances, the failure of these

officers to testify did not have a substantial and injurious effect on the decision-maker’s verdict. 

Petitioner also contends that his right call witnesses was violated because when he

questioned Lieutenant Valencia over the telephone, he mistakenly thought he was Officer

Shampre or McCoy. Based on this misunderstanding, petitioner asked Lieutenant Valencia the

wrong questions. Petitioner claims that Lieutenant Adams did not tell him that he was talking to

Lieutenant Valencia. 

Attached to the petition as exhibit G is a copy of the questions petitioner intended

to pose to his witnesses. Petitioner had two questions for Lieutenant Valencia: 

1. Were you the Lieutenant that during a state of emergency lockdown gave 

Officer Weston permission to search [petitioner’s cell] once you were informed 

there might be drugs there?

2. Were you the Lieutenant that ordered Graves and Collins to be placed in 

custody holding cells and stripped during the cell search? 

Nothing in the record suggests that Lieutenant Adams intentionally sought to

mislead petitioner regarding whom he was questioning. In any event, the answers to these

Case 2:04-cv-01279-LKK -GGH Document 27 Filed 09/12/05 Page 12 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

13

questions would not have assisted petitioner’s defense. In other words, the answers to these two

questions would not have shed light on who, other than petitioner, the heroin belonged to. 

Assuming petitioner’s confusion regarding the identity of Lieutenant Valencia resulted in a

denial of right to questions witnesses, any error was harmless. 

Petitioner also contends that his right to call witnesses was violated because he

was only permitted to ask Officer Weston six questions. Attached to the petition as exhibit G is a

list which includes the eleven questions that petitioner wanted to ask Officer Weston. The five

questions that petitioner chose not to ask Officer Weston are the following:

1. If a state of emergency suspends any nonessential operation and procedure 

or function, and you knew that 5 bldg cells was searched not later than 4-06-02 

and 5 bld inmates were on lockdown on 4-08-02 why was there a need to search 

5-AA-1-05 again.

2. Where do you place inmate’s during a routine search.

3. Why were we handcuffed and placed in custody holding cells and stripped 

before cell search began.

4. Why wasn’t the other two fans searched.

5. Am I guilty of stealing your flashlight (I found it in my cell).

The answer to these questions would not have assisted petitioner in his defense. 

These questions did not shed light on which inmate, other than petitioner, owned the fan. 

Accordingly, Lieutenant Adams’s decision to allow petitioner to ask Officer Weston six

questions did not violate petitioner’s right to due process.

Finally, in his traverse petitioner argues that because he was handcuffed during his

hearing, he should have been assigned a staff assistant to help him. In particular, petitioner

claims that because he did not have use of his hands, a guard had to mark off for him the six

questions that he was permitted to ask the witnesses. The court construes this claim to implicate

petitioner’s right to call witnesses. The inconvenience petitioner suffered as a result of being

handcuffed in a prison setting did not prevent him from asking the witnesses questions. 

Although it was not convenient for petitioner to have a guard mark the questions he intended to

Case 2:04-cv-01279-LKK -GGH Document 27 Filed 09/12/05 Page 13 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

14

ask the witnesses, this situation did not prevent him from choosing his six questions and asking

them. Accordingly, the court finds that petitioner’s right to call witnesses was not denied as a

result of him being handcuffed during the hearing and not being assigned a staff assistant.

After independently reviewing the record, the court finds that the state court

decisions denying these claims were neither contrary to nor an unreasonable application of

Supreme Court authority. Accordingly, these claims should be denied.

B. Claim 2: Biased Hearing Officer

Petitioner contends that the hearing officer, Lieutenant Adams, was biased against

him because he had earlier presided over inmate Collins’s disciplinary hearing for charges

relating to the heroin. Because Lieutenant Adams found Collins not guilty, petitioner argues that

he had predetermined petitioner’s guilt by the time he presided over petitioner’s hearing. 

Due process requires a non-biased decision-maker. Wolff, 418 U.S. at 570-71, 94

S. Ct. at 2981-82. Because Lieutenant Adams had presided over inmate Collins’s disciplinary

hearing did not mean that he had predetermined petitioner’s guilt. If Lieutenant Adams had

predetermined petitioner’s guilt, he would not have questioned Officer Weston as closely as he

did regarding whether the search of petitioner’s cell was random.

After independently reviewing the record, the court finds that the state court

decisions denying these claims were neither contrary to nor an unreasonable application of

clearly established Supreme Court authority. Accordingly, this claim should be denied.

C. Claims 3, 9: Denial of Non-Confidential Reports and Evidence

In claim 3, petitioner argues that his right to due process was violated when prison

officials refused to provide him with a copy of the report from inmate Collins’s May 14, 2002,

parole suitability hearing where Officer Weston allegedly testified that another officer had told

him that petitioner was selling drugs to pay off a gambling debt. Petitioner also claims that the

bindle of drugs was wrapped in a medical slip that contained the name and CDC # of an inmate. 

Petitioner argues that prison officials violated his right to due process by refusing to turn over

Case 2:04-cv-01279-LKK -GGH Document 27 Filed 09/12/05 Page 14 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

15

this document to him. Petitioner also argues that prison officials violated his right to due process

by denying him access to the results of the urine tests of inmate Collins and himself. 

“The due process requirements for a prison disciplinary hearing are in many

respects less demanding than those for criminal prosecution, but they are not so lax as to let stand

the decision of a biased hearing officer who dishonestly suppresses evidence of innocence.” 

Edwards v. Balisok, 520 U.S. 641, 647, 117 S. Ct. 1584, 1588 (1997). Petitioner is claiming that

prison officials suppressed evidence that demonstrated his innocence.

The evidence listed above did not demonstrate petitioner’s innocence. As

discussed above, evidence that Officer Weston testified in inmate Collin’s suitability hearing that

he heard that petitioner was selling drugs to pay off a gambling debt went to why he searched

petitioner’s cell. This evidence did not aid petitioner in proving that the heroin did not belong to

him. Evidence of the results of the urine tests also would not have conclusively proved that

petitioner was not selling drugs. Lieutenant Adams found that the amount of drugs in

petitioner’s cell was more than for personal use. Petitioner’s admission that the fan was his, and

that his cellmate had not used the fan, undercuts petitioner’s contentions.

Finally, evidence that another inmate’s name was contained on the medical slip

may have been relevant to proving which inmate, other than petitioner, owned the heroin. 

However, as discussed above, petitioner knew who sold him the fan and yet refused to identify

this inmate. Under these circumstances, the information on the medical slip was not relevant.

In claim 9, petitioner claims that Lieutenant Adams taped the July 21, 2002, and

July 31, 2002, disciplinary hearings. Petitioner claims that Lieutenant Adams destroyed the tape

recording after the hearing even though petitioner had requested a copy of it. Petitioner’s right to

due process in connection with his disciplinary hearing does not include the right to a copy of the

tape recording of the hearing. 

After independently reviewing the record, the court finds that the state court

decisions denying these claims were neither contrary to nor an unreasonable application of

Case 2:04-cv-01279-LKK -GGH Document 27 Filed 09/12/05 Page 15 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

16

Supreme Court authority. Accordingly, these claims should be denied.

D. Claim 4: Guilty Finding not Supported by Some Evidence

Petitioner contends that his conviction was not supported by sufficient evidence. 

Petitioner was convicted of violating Cal. Code Regs. tit. 15 § 3016(c) which provides that

inmates shall not distribute, as defined in section 3000, any controlled substance or controlled

medication. Section 3000 defines distribution as “the sale or unlawful dispersing, by an inmate

or parolee, of any controlled substance; or the solicitation of or conspiring with others in

arranging for, the introduction of controlled substances into any institution, camp, contract health

facility, or community correctional facility for the purpose of sales or distribution.

The Superior Court denied this claim on the following grounds:

The standard of review for sufficiency of the evidence in prison disciplinary 

hearings is the “some evidence” test. (Superintendent v. Hill (1985) 472 U.S. 

445.) As long as there is a “modicum” of evidence to support the charges, the 

decision must be upheld.

The critical evidence in this case concerned possession and control of heroin 

found in the cell. “[T]he elements of possession of narcotics are physical or 

constructive possession thereof coupled with knowledge of the presence and 

narcotic character of the drug...Constructive possession occurs when the accused 

maintains control or a right to control the contraband; possession may be imputed 

when the contraband is found in a place with is immediately and exclusively 

accessible to the accused and subject to his dominion and control, or to the joint 

dominion and control of the accused and another. The elements of unlawful 

possession may be established by circumstantial evidence and any reasonable

 inferences drawn from such evidence.” (People v. Williams (1971) 5 Cal.3d 

211.)

In this case the heroin was found in wrapped plastic packages in a fan that

petitioner admitted he owned. The fan was accessible to both him and his 

cellmate. The circumstances are sufficient to supply some evidence supporting 

the disciplinary finding.

Answer, Exhibit 8.

Petitioner argues that his conviction is not supported by some evidence because

no drugs were found on his body and because no one saw him selling drugs. While petitioner did

not actually possess the heroin on his body, it was found in a fan that belonged to him. In

addition, the amount of heroin and the way it was packaged reasonably suggested that it was

Case 2:04-cv-01279-LKK -GGH Document 27 Filed 09/12/05 Page 16 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

17

intended for sale. Because heroin cannot realistically be manufactured from opium in a prison

setting, it is beyond doubt that petitioner conspired with others to possess heroin for sale. Under

these circumstances, there was some evidence to support his conviction of distribution of a

controlled substance.

The denial of this claim by the Superior Court was neither contrary to nor an

unreasonable application of clearly established Supreme Court authority. Accordingly, this claim

should be denied.

E. Claim 5: Violation of Miranda

Petitioner argues that Lieutenant Adams questioned him at the disciplinary

hearing even though he invoked his right to remain silent after being advised of his rights

pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). Under Miranda, a person

in custody must be informed before interrogation that he has a right to remain silent and to have a

lawyer present. Id. The rules violation states both that petitioner waived his Miranda rights and

decided to speak at the hearing and that he invoked his Miranda rights and chose not to speak.

This court is aware of no clearly established Supreme Court authority holding that

prison officials are required to admonish prisoners of their right to remain silent prior to prison

disciplinary hearings. In fact, the Supreme Court has held that Miranda has no “substantial

bearing on the question of whether counsel must be provided at ‘[p]rison disciplinary hearings

[which] are not part of a criminal prosecution.’” Baxter v. Palmigiano, 425 U.S. 308, 315, 96 S.

Ct. 1551, 1556 (1976). The Baxter court went on to conclude “[w]e see no reason to alter our

conclusions so recently made in Wolff that inmates do not ‘have a right to either retained or

appointed counsel in disciplinary hearings’ 418 U.S. at 570, 94 S.Ct. at 2981.” Id. at 315, 96

S.Ct. at 1556.

Because no clearly established Supreme Court authority required that petitioner

receive the Miranda advisement regarding his right to remain silent prior to testifying at his

disciplinary hearing, this claim is without merit. This court also suspects that the statement in the

Case 2:04-cv-01279-LKK -GGH Document 27 Filed 09/12/05 Page 17 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

18

rules violation report that petitioner invoked his Miranda rights and chose not to speak was

clerical error.

After independently reviewing the record, the court finds that the state court

decisions denying this claim were neither contrary to nor an unreasonable application of clearly

established Supreme Court authority. Accordingly, this claim should be denied.

F. Claim 7: Denial of Fair Appeal Process

Petitioner contends that his administrative appeal following his conviction for the

at-issue disciplinary was not properly investigated. Inmates lack a separate constitutional

entitlement to a specific prison grievance procedure. Ramirez v. Galaza, 334 F.3d 850, 860 (9th

Cir. 2003). 

After independently reviewing the record, the court finds that the state court

decisions denying this claim were neither contrary to nor an unreasonable application of clearly

established Supreme Court authority. Accordingly, this claim should be denied.

G. Claim 8: Illegal SHU Term

Petitioner contends that prison officials violated his right to due process because

they did not have authority to assess an 8 month Security Housing Unit (SHU) term for his

conviction for distribution of narcotics. Petitioner is alleging a violation of state law.

A writ of habeas corpus is available under 28 U.S.C. § 2254(a) only on the basis

of some transgression of federal law binding on the state courts. Middleton v. Cupp, 768 F.2d

1083, 1085 (9th Cir. 1985); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). It is

unavailable for alleged error in the interpretation or application of state law. Middleton v. Cupp,

768 F.2d at 1085; see also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987); Givens v.

Housewright, 786 F.2d 1378, 1381 (9th Cir. 1986). Habeas corpus cannot be utilized to try state

issues de novo. Milton v. Wainwright, 407 U.S. 371, 377, 92 S. Ct. 2174, 2178 (1972).

The Supreme Court has reiterated the standards of review for a federal habeas

court. Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475 (1991). In Estelle v. McGuire, the

Case 2:04-cv-01279-LKK -GGH Document 27 Filed 09/12/05 Page 18 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

19

Supreme Court reversed the decision of the Court of Appeals for the Ninth Circuit, which had

granted federal habeas relief. The Court held that the Ninth Circuit erred in concluding that the

evidence was incorrectly admitted under state law since, “it is not the province of a federal

habeas court to reexamine state court determinations on state law questions.” Id. at 67-68, 112 S.

Ct. at 480. The Court re-emphasized that “federal habeas corpus relief does not lie for error in

state law.” Id. at 67, 112 S. Ct. at 480, citing Lewis v. Jeffers, 497 U.S. 764, 110 S. Ct. 3092,

3102 (1990), and Pulley v. Harris, 465 U.S. 37, 41, 104 S. Ct. 871, 874-75 (1984) (federal courts

may not grant habeas relief where the sole ground presented involves a perceived error of state

law, unless said error is so egregious as to amount to a violation of the Due Process or Equal

Protection clauses of the Fourteenth Amendment). 

The Supreme Court further noted that the standard of review for a federal habeas

court “is limited to deciding whether a conviction violated the Constitution, laws, or treaties of

the United States (citations omitted).” Id. at 68, 112 S. Ct. at 480. The Court also stated that in

order for error in the state trial proceedings to reach the level of a due process violation, the error

had to be one involving “fundamental fairness,” Id. at 73, 112 S. Ct. at 482, and that “we ‘have

defined the category of infractions that violate “fundamental fairness” very narrowly.’” Id. at 73,

112 S. Ct. at 482. Habeas review does not lie in a claim that the state court erroneously allowed

or excluded particular evidence according to state evidentiary rules. Jammal v. Van de Kamp,

926 F.2d 918, 919 (9th Cir. 1991).

In support of this claim, petitioner cites exhibit J attached to the petition. Exhibit

J is a SHU Term Assessment Worksheet stating that petitioner was sentenced to an 8 month SHU

term for the distribution of a controlled substance. The form also inexplicably indicates that the

term was assessed pursuant to Rule 3005c titled “Force and Violence.” Cal. Code Regs. tit. 15 §

3005c provides that inmates shall not willfully commit or assist another person in the

commission of a violent injury to any person or persons. 

\\\\\

Case 2:04-cv-01279-LKK -GGH Document 27 Filed 09/12/05 Page 19 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

20

Cal. Code Regs. tit. 15 § 3341.5(c)(2)(B) provides that a determinate period of

confinement in SHU may be established for an inmate found guilty of a serious offense listed in

section 3315 of Title 15. Section 3315(a)(2)(D) lists possession of a controlled substance as a

serious offense. Section 3341.5(c)(9)(E) states that a typical SHU term for distributing

controlled substances should be 9 months. Petitioner’s 8 month SHU term was clearly

authorized by the regulations.

It is unclear why the SHU Term Assessment Worksheet cited § 3005c. It appears

that the citation to this section was in error and harmless as petitioner’s SHU term was

authorized by state law. Therefore, petitioner’s SHU term did not violate fundamental fairness. 

After independently reviewing the record, the court finds that the denial of this claim by the state

courts was neither contrary to nor an unreasonable application of clearly established Supreme

Court authority. Accordingly, this claim should be denied.

H. Claim 10: Inadequate Investigative Officer

Petitioner contends that the investigative officer appointed to assist him, Officer

Feryance, was inadequate. “Where an illiterate inmate is involved...or where the complexity of

the issue makes it unlikely that the inmate will be able to collect and present the evidence

necessary for an adequate comprehension of the case, he should be free to seek the aid of a fellow

inmate, or...to have adequate substitute aid...from the staff or from a[n] inmate designated by the

staff.” Wolff, 418 U.S. at 570, 94 S. Ct at 2982.

Petitioner contends that Officer Feryance failed to question witnesses McCoy,

Meadows, Shampre or Collins, and failed to produce inmate Collins at the hearing. Petitioner

also contends that Officer Feryance also failed to give petitioner non-confidential information

including the last three cell searches from 4-8-02 and before. 

In his report, Officer Feryance stated that on May 15, 2002, he interviewed

petitioner. Answer, Exhibit 4. At that time, petitioner requested the following witnesses:

Weston, Shambre, Meadows, McCoy, Rowan ,Valencia and inmate Collins. Id. The report also

Case 2:04-cv-01279-LKK -GGH Document 27 Filed 09/12/05 Page 20 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

21

indicates that petitioner asked Officer Feryance to ask Correctional Officer Weston several

questions. Id. Officer Weston’s answers to those questions are contained in the report. Id.

The report does not state that petitioner asked Officer Feryance to question

witnesses McCoy, Meadows, Shampre or Collins before the hearing. For this reason, the court

does not find that Officer Feryance failed to perform adequately as petitioner’s staff assistant. In

any event, as discussed above, petitioner has not demonstrated that McCoy, Shampre, Meadows

or Collins would have been able to provide any evidence in support of his defense. Therefore,

Officer Feryance’s alleged failure to interview these witnesses prior to the hearing was harmless. 

Petitioner also complains that Officer Feryance did not produce inmate Collins at

the hearing. Officer Feryance’s report states that petitioner requested that inmate Collins be a

witness. Nothing in the record explains why Lieutenant Adams did not respond to this request. 

Assuming it was Lieutenant Feryance’s responsibility to obtain inmate Collins’s presence at the

hearing, any error was harmless because petitioner has not demonstrated that inmate Collins

would have been able to provide any exonerating testimony.

Petitioner also claims that Officer Feryance failed to provide him with information

regarding the last three cell searches from 4-8-02 and before. Officer Feryance’s report indicates

that petitioner’s request for the last three cell searches from 4-8-02 and before was granted. Id.

Therefore, the basis of the instant claim is unclear. Assuming Officer Feryance did not actually

provide petitioner with these documents, it is unclear how information regarding these cell

searches would have aided petitioner’s defense. Therefore, Officer Feryance’s alleged failure to

provide petitioner with this information was harmless.

After independently reviewing the record, the court finds that the denial of this

claim by the state courts was neither contrary to nor an unreasonable application of clearly

established Supreme Court authority. Accordingly, this claim is denied.

\\\\\

\\\\\

Case 2:04-cv-01279-LKK -GGH Document 27 Filed 09/12/05 Page 21 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

22

I. Claim 11: Evidence Tampering

Petitioner claims that Lieutenant Adams failed to put information in his rules

violation report that would have proved petitioner’s innocence. Petitioner contends that

Lieutenant Adams omitted the following information: 1) Officer Weston’s statement that he

testified as a witness in inmate Collins’s parole suitability hearing that another officer told him

that petitioner was selling drugs to pay off a gambling debt; 2) Officer Weston’s statement that

when he sees traffic in a cell or a change in an inmate’s personality, he searches the cell; 3)

Sergeant Rowan’s statement that all officers who participate in a cell search prepare a report; 4)

on July 21, 2002, Lieutenant Adams tried to reach McCoy, Meadows and Shampre by phone; 5)

the hearing actually ended on July 31, 2002.

“The due process requirements for a prison disciplinary hearing are in many

respects less demanding than those for criminal prosecution, but they are not so lax as to let stand

the decision of a biased hearing officer who dishonestly suppresses evidence of innocence.” 

Edwards v. Balisok, 520 U.S. at 647, 117 S. Ct. at 1588. The evidence cited above would not

have established petitioner’s innocence. As discussed above, at the hearing petitioner admitted

that he owned the fan. During the investigation, he told the investigating officer that his cellmate

was not aware of the fan. While petitioner suggested that the heroin belonged to another inmate,

the evidence cited above would not have helped him prove who this inmate was. As discussed

above, petitioner undercut his own defense by refusing to disclose the identity of the inmate from

whom he bought the fan. 

By failing to include the information cited above in his report, Lieutenant Adams

did not suppress evidence of petitioner’s innocence. Moreover, due process does not require that

the report from the disciplinary hearing contain every statement made at the hearing. Wolff, 418

U.S. at 564-571, 94 S. Ct. at 2978-2982. 

The denial of this claim by the California courts was neither contrary to nor an

unreasonable application of clearly established Supreme Court authority. Accordingly, this claim

Case 2:04-cv-01279-LKK -GGH Document 27 Filed 09/12/05 Page 22 of 23
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

23

should be denied.

Accordingly, IT IS HEREBY ORDERED that:

1. The February 15, 2005, order to show cause is discharged; 

2. Petitioner’s March 31, 2005, motion to amend and May 26, 2005, motion to

file a second amendment are denied; 

IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of

habeas corpus be denied.

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)(l). Within twenty

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 ten days after service of the objections. The parties are advised

that 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).

DATED: 9/12/05

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

ggh:kj

grave1279.157

Case 2:04-cv-01279-LKK -GGH Document 27 Filed 09/12/05 Page 23 of 23