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July 11, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,v.KATHLEEN ROSSANO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-06-1032.
Submitted: March 16, 2011
Before Judges Cuff and Simonelli.
A jury found defendant Kathleen Rossano guilty of third degree theft of property, N.J.S.A. 2C:20-3 (Count Three); third degree computer theft, N.J.S.A. 2C:20-25a (Count Five); third degree hindering apprehension, N.J.S.A. 2C:29-3b (Count Six); third degree fraudulent use of credit cards, N.J.S.A. 2C:21-6h (Count Eight); and third degree interception of wire or oral communications, N.J.S.A. 2C:156A-3 (Count Nine). Defendant is serving an aggregate term of ten years, including an extended term of ten years on Count Three.*fn1
Defendant served as Vice-President of Group Sales for Cruise Value Center (CVC) from 2002 to 2006. CVC is a travel agency that specializes in pre-booking large blocks of rooms on cruise ships, thereby securing discounted rates, and reselling the rooms to its customers. In addition, the operator of the cruise ship pays CVC a commission on each room it books. CVC pays the cruise line a deposit for each block of rooms it acquires. CVC uses an American Express (AMEX) card to pay these deposits.
Defendant managed the group space acquired and re-sold by her employer. She had access to the company AMEX card and charged between $500,000 and $1,000,000 to the card each year.
On March 15, 2006, her supervisor reviewed the recent AMEX statement and discovered charges for four Continental Airline flights to Fort Lauderdale, Florida, an embarkation point for some cruises. Normally, CVC clients make their own travel arrangements to the departure port. Therefore, it was unusual to see such charges on the AMEX bill. Moreover, no record of this purchase existed in the CVC internal record system. Ross Spalding, a manager of CVC and defendant's supervisor, confronted defendant because she was the agent who booked the airline tickets. Defendant admitted she purchased the tickets for her friends. Spalding asked her to produce proof of payment by her friends. Defendant responded her friends had paid CVC with checks or money orders; however, Spalding found no record of any payments from her friends. Spalding sent defendant home and instructed her to return the following Monday.
That evening, however, Spalding and other employees realized that the computer at defendant's work station was being accessed remotely. Spalding unplugged the computer. He removed the computer from the office and brought it home until he turned it over to a forensic computer investigator for the State in April 2007. Spalding also discovered that the airline tickets were associated with a cruise that was paid in full by CVC, not defendant's friends. Spalding terminated defendant in mid-April 2006.
Further investigation revealed that defendant booked cruises for friends and extended family over a period of four years for which they paid her cash. She accepted the cash, delivered tickets and vouchers to them, but did not remit the money to her employer. For example, in July 2005, defendant booked a cruise for an extended family member that cost approximately $50,000; however, the CVC person in charge of processing cash payments had no record of receiving cash in that amount.
Records from the computer payment systems and the AMEX account were introduced at trial. CVC used the WinCruise program to record and track all clients, bookings, and payments. CVC received payment by cash, money orders, or credit cards. Payments from clients made by check or money order were entered in the Quickbooks system and then payment was made to the cruise ship line by the CVC company credit card. Every employee in the company had access to WinCruise.
The records of the WinCruise and Quickbooks systems were introduced in evidence to establish that defendant had arranged for numerous cruises for clients, and paid for the cruises with the company credit card. However, there was no correlation between the bookings and payments to the cruise operator and the cash received by defendant from some of her clients. In addition, a postal inspector testified certain money orders recorded in the system bore invalid numbers, were never issued by the United States Postal Service, and were for amounts in excess of the $1,000 limit.
On appeal, defendant raises the following arguments:
THE COURT COMMITTED REVERSIBLE ERROR BY ADMITTING THE AMERICAN EXPRESS STATEMENTS INTO EVIDENCE IN VIOLATION OF N.J.R.E. 803(c)(6).
Prior to trial, the State sought permission to introduce two prior theft convictions to prove absence of mistake. One conviction in 1995 involved a scheme developed by defendant while employed at a department store. She diverted $6400 in returns to her credit card. The other theft conviction in 1994 involved her diversion of $5200 from money paid for products and service by clients to her employer, a veterinarian. The trial judge held that there was a logical connection between the three theft charges to be tried and the two prior theft convictions. He also found that the two prior convictions were close enough in time and similar in kind. Finally, the judge found that the probative value of the evidence of the prior convictions outweighed any prejudice to her. The judge recognized that a carefully crafted limiting instruction would be delivered both at the time the evidence was initially received and in his final instructions to the jury.
Based on this ruling, the prosecutor informed the jury in her opening that they would receive testimony from two prior employers from whom defendant stole money and applied those lessons to the scheme for which she stood trial. The State presented the testimony of a security guard at Macy's and the veterinarian for whom defendant worked regarding her two prior convictions. Defendant argues that the trial judge erred in admitting the prior convictions, and the prosecutor committed prosecutorial misconduct when she referred to the two prior convictions in her opening statement.
A. Admission of the two prior theft convictions Defendant argues the prior convictions are not relevant to any issue in the case, that they are remote in time from her CVC employment and unduly prejudicial. The State responds that the prior convictions are relevant to disputed issues in the case, specifically absence of mistake and intent.
The use of other crimes evidence is governed by N.J.R.E. 404(b). The rule provides: evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
Application of this rule is governed by State v. Cofield, 127 N.J. 328, 338 (1992).*fn2 In order to be admissible and to prevent overuse of other crimes evidence, prior bad acts must comport with the following standard:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice. [Ibid. (citation omitted).]
Each determination must be examined through the applicable standard of review. N.J.R.E. 403 allows a judge, in his or her discretion, to exclude otherwise admissible evidence under specified circumstances. Appellate courts must give substantial deference to the trial judge's discretion in evidentiary rulings. See, e.g., Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). As a result, the evidential rulings of a trial judge are reviewed under an abuse of discretion standard. State v. Marrero, 148 N.J. 469, 484 (1997); State v. Ramseur, 106 N.J. 123, 266 (1987).
As long as intent, motive, absence of mistake, or mens rea are disputed issues in the case, the evidence should be admitted. See State v. Pierro, 355 N.J. Super. 109, 121 n.1 (App. Div. 2002), certif. denied, 175 N.J. 434 (2003). Here, defendant's intent was the focus of the defense. Defendant argued that as an employee in good standing, she was authorized to use the company credit card. Of course, the State argued that she used her access to these cards to steal from her employer and abused the trust reposed in her to divert funds from her employer to enrich herself. The two prior theft convictions, both from employers, tended to substantiate the substantial documentary evidence that defendant committed the present crime.
Similarly, the prior theft convictions are "similar in kind and reasonably close in time to the offense charged[.]" Cofield, supra, 127 N.J. at 338. "[T]emporal remoteness of a past wrong should be considered in evaluating its probative value," Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 8 on N.J.R.E. 404 (2011) (citing Ramseur, supra, 106 N.J. at 266), but it is not an essential element to allow admission of prior convictions in all instances.
In State v. Barden, 195 N.J. 375, (2008), the Court explained:
[T]he second prong may be eliminated where it "serves no beneficial purpose." State v. Williams, 190 N.J. 114, 131 (2007). We explained that the "usefulness [of Cofield's second prong] as a requirement is limited to cases that replicate the circumstances in Cofield[.]"
Accord State v. Gillispie, ___ N.J. ___, ___ (2011) (slip op. at 36-37). In Cofield, the defendant was indicted for two drug offenses that occurred within a month of each other. 127 N.J. at 331-32. The defendant was tried first for the second crime and was acquitted of the substantive counts. Id. at 332. At trial for the first crime, the State sought to introduce evidence of the second crime, to prove possession of the drugs on the charged offense. Ibid.; Barden, supra, 195 N.J. at 389.
Here, unlike Cofield, the evidence of prior crimes is not being used to prove possession, and thus, the need for temporal proximity is not crucial. "[W]here the other-crimes evidence was relevant only to the defendant's state of mind, . . . the test [becomes] a three-part test by elimination of the similar-in-[time] prong." Barden, supra, 195 N.J. at 389 (citing Williams, supra, 190 N.J. at 131). Moreover, the two prior convictions are not remote in time. Each occurred within ten years of the commencement of defendant's employment at CVC and the initiation of her scheme. Finally, we reject defendant's contention that the probative value of the evidence was outweighed by its prejudice under Cofield's final prong.
Defendant also argues the prejudice was ensured because the trial judge issued a limiting instruction after each witness, O'Neill and Johnson, testified and again during the jury charge. This argument ignores the rule that the limiting instruction must "state specifically the purposes for which the evidence may be considered and, to the extent necessary for the jury's understanding, the issues on which such evidence is not to be considered." State v. Stevens, 115 N.J. 289, 309 (1989). Accord Cofield, supra, 127 N.J. at 341. Moreover, the limiting instruction must be delivered contemporaneously with the administration of the other crimes evidence and repeated in the final charge to the jury. State v. Fortin, 189 N.J. 579, 601 (2007); State v. Angoy, 329 N.J. Super. 79, 89 (App. Div. 2000). The trial judge did just as he was required.
B. Prosecutorial Misconduct
In her opening statement, the prosecutor summarized the evidence the jury would hear about defendant's conduct at CVC. She then informed the jury that it would hear additional testimony from two of defendant's prior employers. The prosecutor stated:
But you're also going to hear from two witnesses in this case that have nothing to do with [CVC], probably never heard of it. . . . Dr. Johnson is a retired veterinarian from the Cranbury Veterinarian Hospital in East Brunswick. Bill O'Keefe was a security guard at Macy's. Both of them had dealings with the defendant years ago. Both of them employed the defendant years ago. The defendant stole from both of them years ago. That's right, members of the jury. It's not the first time she's stealing from an employer.
When employed by Macy's department store, the defendant used her own credit cards to charge back merchandise to herself that she had neither purchased nor had any intention of purchasing to an amount of approximately over $6,000. When employed by Dr. Johnson, she stole from him by failing to turn over the cash that people were coming in to buy medicine and food for their animals.
This scheme was by far the defendant's most elaborate, but it wasn't her first. She took what she had learned in the past, which was pocketing cash and credit card fraud, and she put it together in a three year scheme that netted her over $75,000 in cash . . . .
Members of the jury, that's a flavor of this case. That's what this case is really about. It's about that defendant taking advantage of an employer yet again.
Following his opening statement, defense counsel moved for a mistrial.
The trial judge ruled that a curative instruction would eliminate any harm caused by the prosecutor's remarks. He instructed the jury as follows:
So you heard during the opening statement that [defendant] had a prior incident with a veterinarian's office and with Macy's. And normally, such evidence is not permitted under our Rules of Evidence. . . . Our rules specifically exclude evidence that a defendant has committed other crimes, wrongs or acts when it's offered only to show that that person has a disposition or a tendency to do wrong, therefore, must be guilty of the crime or charges . . . in the indictment.
Before you can give any weight to this evidence, you must be satisfied that she committed the other acts, wrongs or crimes. . . . Our rules do permit evidence of other crimes, wrongs, acts, when it's used for a specific narrow purpose. . . . Narrow purpose such as motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to the case.
Here, the trial judge had already ruled that the prior theft convictions would be admissible at trial. The judge issued an appropriate limiting instruction after the opening statements, and the remarks were consistent with the testimony later offered by the Macy's representative and the veterinarian.
Moreover, in assessing whether prosecutorial misconduct, such as improper remarks in an opening, requires reversal, an appellate court should determine whether "'the conduct was so egregious that it deprives the defendant of a fair trial.'" State v. Loftin, 146 N.J. 295, 386 (1996) (quoting Ramseur, supra, 106 N.J. at 322). This assessment is also informed by the limiting instruction delivered by the trial judge. Ramseur, supra, 106 N.J. at 322-23. Having reviewed the record in its entirety, we are satisfied that defendant received a fair trial. As noted, the evidence that documented defendant's scheme was voluminous and damning. In addition, the State produced persons who made their cruise arrangements through defendant and remitted cash or money orders to her in payment for the travel arrangements. This testimony coupled with the documentary evidence fully exposed defendant's criminal scheme.
Defendant argues that the State should not have been allowed to introduce numerous AMEX statements from two credit cards used by CVC to pay for cruises. She contends the State did not provide an adequate foundation to allow admission as business records pursuant to N.J.R.E. 803(c)(6).
N.J.R.E. 803(c)(6) provides:
A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the source of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.
In a criminal case, a document is admissible as an exception to hearsay only if it is not testimonial. Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 803(c)(6) (2011); Crawford v. Washington, 541 U.S. 36, 56 124 S. Ct. 1354, 1367 158 L. Ed. 2d 177, 195 (2004). Business records are non-testimonial by nature under Crawford. 541 U.S. at 56 124 S. Ct. at 1367 158 L. Ed. 2d at 195-96.
Moreover, foundation witnesses, generally, are not required to have personal knowledge of the facts related in the proffered record. Hahnemann Univ. Hosp. v. Dudnick, 292 N.J. Super. 11, 17-18 (App. Div. 1996). Instead, a party seeking to introduce a hearsay statement under the business records exception "'must demonstrate that (1) the writing [was] made in the regular course of business, (2) the writing was prepared within a short time of the act, condition or event being described, and (3) the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence.'" N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 130 (App. Div. 2010) (quoting N.J. Div. of Youth & Family Servs. v. M.C., III, 201 N.J. 328, 347 (2010)).
Here, the billing statements are made in the regular course of business because AMEX creates the records of CVC's credit card transactions and delivers a statement to the company. Once received by the card holder, the statement becomes a business record of a card holder, such as CVC, because it forms the basis for the creation of an account payable by the card holder. Moreover, credit card records are created contemporaneously with the transaction, and the records are produced and disseminated to card holders on a regular basis. Finally, the information in the statement is simply a compilation of credit card transactions, produced by a party with no interest in the litigation, and the credit card records simply corroborate the CVC computer records that the company paid cruise operators through AMEX and received no payment from certain customers on the retail end.
Defendant argues that the chain-of-custody of the computer from defendant's work station was compromised. Therefore, she contends the information obtained from her computer is unreliable and inadmissible. We disagree.
Authentication is required and "is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims." N.J.R.E. 901. A party introducing tangible evidence has a burden of laying a proper foundation. State v. Brunson, 132 N.J. 377, 393 (1993). An uninterrupted chain of custody is a central requirement in establishing the foundation for a tangible item. State v. Morton, 155 N.J. 383, 446 (1998). "The decision on whether the chain of custody has been sufficiently established is left to the discretion of the trial court." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 901 (2011) (citing Morton, supra, 155 N.J. at 446). Most importantly, defects in the chain-of-custody go to the weight and not the admissibility of the evidence. Ibid.
Here, the chain-of-custody is unassailable. The manager disconnected defendant's work computer, removed it from the office and kept it in his home, until he turned it over to an investigator for the State a year later. Any inferences that Spalding, as the victim of defendant's crime, might have an interest in tampering with or modifying the computer to secure defendant's conviction, is an issue of weight that can be pursued sufficiently through cross-examination and other testimony.
Defendant argues the trial judge should have granted her motion for a judgment of acquittal based on the conviction being against the weight of the evidence. This argument is without sufficient weight to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant argues her ten-year extended term is manifestly excessive because the judge misidentified and misapplied the aggravating factors and declined to find two mitigating factors. We disagree.
Under the Criminal Code, the "unfettered sentencing discretion" of pre-code law has been replaced with "a structured discretion designed to foster less arbitrary" sentences. State v. Roth, 95 N.J. 334, 345 (1984). Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, the appellate court must (1) "require that an exercise of discretion be based on findings of fact that are grounded in competent, reasonably credible evidence"; (2) "require that the factfinder apply correct legal principles in exercising its discretion"; and (3) modify sentences only when the facts and law show "such a clear error of judgment that it shocks the judicial conscience." Roth, supra, 95 N.J. at 363-64.
The judge properly found aggravating factor 3. N.J.S.A. 2C:44-1a(3) is applicable when the record suggests defendant will commit another offense. Judge Nieves specifically found that there is a risk that defendant will commit another offense. Having stolen from three employers, there is certainly a risk she will steal again.
Aggravating factor 9, N.J.S.A. 2C:44-1a(9), was also appropriately found and applied. Defendant has a history of committing crimes. General deterrence is always appropriate, and here, the less common need for specific deterrence is especially strong.
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United States District Court, Eastern District of Pennsylvania
November 4, 2014
DWIGHT WILLIAMS, ET AL.,v.CITY OF PHILADELPHIA, ET AL.,
Presently before the Court is non-party Corizon Health, Inc.'s Request to not produce mortality and sentinel event reviews requested by Plaintiffs. (ECF No. 122.) For the following reasons, Corizon's Request will be denied.
This is a class action brought by inmates in the Philadelphia Prison System ("PPS") against the City of Philadelphia ("City") seeking equitable relief under the Eighth and Fourteenth Amendments for alleged unconstitutional conditions of confinement. (Compl., ECF No. 1.) Plaintiffs complain of overcrowding and triple-celling in the county-operated PPS. (Id. ¶ 3.) Plaintiffs allege that the overcrowding in the PPS results in danger to the health and safety of the inmate population. (Id. ¶ 29.)
Presently before the Court is a discovery dispute centered on a supplemental discovery request that Plaintiffs' counsel served on the City in December 2013. Plaintiffs seek "mortality and sentinel event reviews for deaths that occurred in custody from January 2012 to December 1, 2013." (ECF No. 118 Ex. A.) The City sought to obtain the requested information from Corizon Health, Inc. ("Corizon"), the contracted provider of medical services in the PPS. Corizon objected, contending that the requested documents are not discoverable because they are privileged and protected from disclosure under Pennsylvania's peer-review privilege law. Plaintiffs disagree, claiming that the state peer-review privilege is not recognized in federal court, and thus does not protect the documents Plaintiffs seek.
On May 12, 2014, Corizon submitted a Letter Brief in support of its position. (Corizon Ltr. Br., ECF No. 122.) Plaintiffs submitted a Letter Brief in Opposition on May 22, 2014. (Pls.' Ltr. Br., ECF No. 123.) On July 20, 2014, Plaintiffs filed supplemental authority supporting their position. (Pls.' Supp., ECF No. 123.)
Assertions of privilege in federal court are governed by Federal Rule of Evidence 501, which states:
The common law-as interpreted by United States courts in the light of reason and experience-governs a claim of privilege unless any of the following provides otherwise:
• the United States Constitution;
• a federal statute; or
• rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.
Fed. R. Evid. 501. Where, as here, there are both federal and state law claims in the case, "the federal rule favoring admissibility, rather than any state law privilege, is the controlling rule." Pearson v. Miller, 211 F.3d 57, 66 (3d Cir. 2000). Therefore, "the mere fact that state law claims and federal law claims coexist in this action does not by itself justify application of Pennsylvania's peer review privilege." Weiss ex rel. Estate of Weiss v. Cnty. of Chester, 231 F.R.D. 202, 205 (E.D. Pa. 2005). The privilege still must be recognized by federal law for it to apply here.
Federal privileges can be created by statue or by common law. Id. Congress has not statutorily enacted a peer-review privilege, and federal common law has also not yet recognized such a privilege. However, that does not end our inquiry because Rule 501 provides federal courts with the flexibility to adapt the federal common law on privilege to varying conditions. Jaffee v. Redmond, 518 U.S. 1, 8 (1996). This flexibility does not mean courts recognize new privileges easily. To the contrary, "privileges are disfavored, " and "federal courts have generally declined to grant requests for new privileges." Pearson, 211 F.3d at 67 (collecting cases). Indeed, for centuries the general rule has been that the public has a right to every man's evidence, and exceptions to this rule are "distinctly exceptional, " Jaffee, 518 U.S. at 9, because "only the most compelling candidates will overcome the law's weighty dependence on the availability of relevant evidence." Pearson, 211 F.3d at 67. For a privilege to be added to the federal common law, it must promote a "sufficiently important interest to outweigh the need for probative evidence." Jaffee, 518 U.S. at 9; Pearson, 211 F.3d at 67. Ultimately, the party asserting the privilege has the burden of proving its existence and applicability. In re Grand Jury Investigation, 918 F.2d 374, 385 n.15 (3d Cir. 1990).
Convincing a court to recognize a new privilege "where it appears that Congress has considered the relevant competing concerns but has not provided the privilege itself" is difficult. Univ. of Pa. v. EEOC, 493 U.S. 182, 189 (1990). Conversely, "[t]he case for recognizing a particular federal privilege is stronger . . . where the information sought is protected by a state privilege." Pearson, 211 F.3d at 67. It is the "strong policy of comity between state and federal sovereignties [that] impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policy." Id. (citations omitted). Nevertheless, a district court's decisions should "turn[] upon the law of the United States, not that of any state." Id. (citing Riley v. City of Chester, 612 F.2d 708, 715 (3d Cir. 1979)).
Corizon argues that as a matter of federal common law we should recognize a peer-review privilege that exempts medical peer-review materials-such as those sought by Plaintiffs-from discovery. According to Corizon, recognition of this privilege would be proper because it is recognized in all 50 states, and it has also been increasingly recognized by federal courts.[2] In making its argument, Corizon does not discuss the public or private interests at stake or the evidentiary implications of its request. Instead, Corizon provides pages of quotes from a handful of federal district courts where the peer-review privilege was found to be applicable. Corizon does not attempt to explain how the facts before any of those district courts are similar to the facts at issue here. Corizon simply rests its argument on its claim that "[t]he developing new trend in the Federal District Courts is to recognize the Peer Review Privilege" (Corizon Ltr. Br. 6), and we should therefore recognize the peer-review privilege without reservation. In response to Corizon's argument, Plaintiffs claim that, despite its recognition in all the states and some federal courts, the peer-review privilege is not applicable to this case because this case involves federal civil-rights claims.
We note that the Supreme Court has explicitly declined to introduce a peer-review privilege-sometimes referred to as a "self-critical analysis" privilege-into the federal common law. Univ. of Pa., 493 U.S. at 189. This is consistent with the reluctance of federal courts to contravene the general rule in favor of admissibility by creating new privileges. See, e.g., In re Grand Jury, 103 F.3d 1140, 1150 (3d Cir. 1997) (rejecting parent-child privilege and noting that "privileges are disfavored"); see also United States v. Nixon, 418 U.S. 683, 710 (1974) (cautioning that privileges "are not lightly created nor expansively construed"). Nevertheless, federal courts have recognized a peer-review privilege in certain circumstances. See, e.g., Loyd v. Saint Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014) (affirming district court's invocation of Michigan peer-review privilege in denying plaintiff's motion to compel discovery); Cornejo v. Mercy Hosp. & Med. Ctr., No. 12-1675, 2014 WL 4817806, at *6-7 (N.D. Ill. Sept. 15, 2014) (permitting defendant to withhold documents based on Illinois peer-review privilege); Elkharwily v. Mayo Holding Co., No. 12-3062, 2014 WL 3573674, at *3 (D. Minn. July 21, 2014) (applying Minnesota peer-review privilege statute in action consisting of both state and federal claims); Nelson v. Green, No. 06-70, 2014 WL 2695535, at *3 (W.D. Va. June 12, 2014) (applying state peer-review privilege statute).
Corizon's contention that there is a "developing trend" in the federal courts toward the recognition of a federal peer-review privilege (Corizon Ltr. Br. 6) is belied by a number of recent cases that have declined to recognize the privilege. Indeed, the Third Circuit Court of Appeals has stated that "[t]he self-critical analysis privilege has never been recognized by this Court and we see no reason to recognize it now." Alaska Elec. Pension Fund v. Pharmacia Corp., 554 F.3d 342, 351 n.12 (3d Cir. 2009) (criticizing district court for sealing record based on self-critical analysis privilege); see also Mendez v. Shah, No. 13-1585, 2014 WL 5391988, at *2-3 (D.N.J. Oct. 23, 2014) (declining to recognize self-critical analysis privilege in medical-malpractice action); Martinez v. Allison, No. 11-1749, 2014 WL 5305566, at *2 (E.D. Cal. Oct. 15, 2014) (declining to recognize self-critical analysis privilege in Eighth Amendment excessive-force claim); Medina v. Cnty. of San Diego, No. 08-1252, 2014 WL 4793026, at *7 (S.D. Cal. Sept. 25, 2014) (rejecting assertion of self-critical analysis privilege in § 1983 action and noting that "[t]he Ninth Circuit does not recognize the self-critical analysis privilege"); Branch v. Umphenour, No. 08-1655, 2014 WL 3891813, at *7 (E.D. Cal. Aug. 7, 2014) (declining to apply self-critical analysis privilege). In light of the refusal of the Supreme Court and the Third Circuit to recognize the privilege, as well as the general policy against recognition of privileges, Corizon must make a significant showing to shield the mortality and sentinel event reviews from discovery. Corizon has made no such showing.
Adopting the peer-review privilege is appropriate only if it "promotes sufficiently important interests to outweigh the need for probative evidence." Jaffee, 518 U.S. at 9-10; see also Id . at 9 ("Exceptions from the general rule disfavoring testimonial privileges may be justified . . . by a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." (internal citations and quotation marks omitted)). We are satisfied that permitting Corizon to withhold the mortality and sentinel-event reviews does not promote sufficiently important interests to outweigh the need for probative evidence. We agree with the Ninth Circuit Court of Appeals that "in the prison context[, ] the safety and efficiency of the prison" render it "peculiarly important that the public have access to the assessment by peers of the care provided." Agster v. Maricopa Cnty., 422 F.3d 836, 839 (9th Cir. 2005) (declining to apply peer-review privilege in context of prisoner civil-rights lawsuit). The instant class action seeks to ensure the safety of prisoners who are in PPS's custody. It is not a medical-malpractice action in which the plaintiff seeks monetary damages for the inadequate care of a prison doctor. See, e.g., Sevilla v. United States, 852 F.Supp.2d 1057, 1069 (N.D. Ill. 2012) ("The only consequence in not recognizing the privilege is to require the plaintiff in this case to do what plaintiffs in medical malpractice cases are routinely required to do in all other cases, namely adduce proof independent of what occurred in the peer review process."). Moreover, the requested documents would be subject to the protective order that the parties are negotiating, thereby limiting the chilling effect that some courts cite as a reason for invoking the peer-review privilege. See, e.g., Finney v. Palakovich, No. 09-1751, 2010 WL 3703791, at *2 (M.D. Pa. Sept. 15, 2010) ("If institutions are subject to liability for after-the-fact, self-critical analysis, then this critical analysis will inevitably stop, and institutions will have little incentive to make observations that are designed to improve services."). Under these circumstances, the public interest weighs heavily in favor of producing the mortality and sentinel-event reviews-a conclusion with which the majority of federal courts agree in the civil-rights context. See Francis v. United States, No. 09-4004, 2011 WL 2224509, at *4 (S.D.N.Y. May 31, 2011) (noting that "there appears to be consensus among lower courts and in other circuits that no federal privilege protects medical peer review materials in civil rights [actions], " and citing cases).
For the foregoing reasons, Corizon's Request that it not be ordered to produce the mortality and sentinel-event reviews requested by Plaintiffs will be denied. Counsel shall submit an appropriate Protective Order.
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Hotels in Montemor-o-Novo
Hotel reservation
Hotel rooms in Montemor-o-Novo
There are not so many hotel rooms in Montemor-o-Novo, just 13, still everyone can find an offer to suit his choice. The most common offers in this city are guest houses, they count 8 out of 13, and their prevalent location is central district. According to our practice, it is the most profitable to book a hotel in the south of Montemor-o-Novo, as it is the location of the hotels with optimal cost and quality offers along with the cheap hotels. Taking into account the small size of the city, there is no need to dwell hotel reservation on the location: the road to the city center would take less then half an hour, so one can book a hotel in any district of Montemor-o-Novo. The most populated with hotels district of Montemor-o-Novo is the south, 73% of cheap hotel rooms are concentrated here. However, even those who want to live in the center can choose from 2 variants of hotel rooms. Montemor-o-Novo is an ideal place for couple and family, such travellers rate hotels there 8.4 out of 10 on average. The view to pool, lake, garden and neighborhood from the hotel room can serve as a pleasant addition to the journey. Apart from all these, hotels in Montemor-o-Novo offer their customers business centre, swimming pool, spa and restaurant/cafe. The most appreciated amenities in Montemor-o-Novo hotels are comfort and room. According to the visitors reviews, hotels in Montemor-o-Novo has fantastic service, great location and tasty breakfast. Take a look at our selection of the cheap hotel rooms in Montemor-o-Novo to make a well-informed choice for your reservation!
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If you like healthy lifestyle, it is very important to train every morning. One of the greatest ways to do it is to swim in the pool! Here is a collection of the cheap hotels with swimming pool in Montemor-o-Novo.
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Hotels in Montemor-o-Novo are spread around the city within the distance of 7.8 kilometers, while 2 hotels are located directly in the city center. Those who are keen on antique should definitely fall in love with
L'AND Vineyards
, the oldest hotel of Montemor-o-Novo, constructed in 2011. This hotel is located 2.8 km away from the city center. The most popular accommodations in Montemor-o-Novo is
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The employee fills in for the Garden manager as needed when the manager is away from the garden, and is available to help out as needed at other times.
Duties and responsibilities include:
- Maintains garden. Tasks include planting, mowing, weed trimming, pruning, weed control, and pesticide and herbicide use.
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- Takes primary responsibility for garden maintenance in the absence of the Garden manager.
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- Complies with safety rules and regulations and establish safe work practices. Reads all safety materials received.
Qualifications & Skills
- High school graduate with two year college credential in horticulture or a related field or equivalent experience.
- Five years agricultural/horticultural experience
- Current Hawai'i driver's license.
- Knowledge of pruning, planting, garden maintenance
- Familiarity with weed management
- Familiarity with irrigation systems
- Basic carpentry and mechanical skills
- Professional, business-like appearance
- Flexibility in schedule to meet deadlines
Compensation: $16.00 – $20.00/hour
Hours: Casual
Deadline to Apply: Position will remain posted until filled.


text:
For toddlers, routines are often the key to smoother transitions, better behavior and happier little ones. But of all the routines in a toddler's life, bedtime is arguably the most important.

Setting up a bedtime routine can seem difficult particularly if one or both parents work into the evening hours, but it's important to establish a schedule. A solid bedtime routine can help you ensure your toddler is getting enough sleep – up to 14 hours a day between naps and bedtime. For many toddlers, that usually ends up being nearly 12 hours at night and 2 hours during naps.

Struggling to stick to a routine? Check out these real-life examples of bedtimes routines from families with different schedules and caregiving situations to get ideas that will work for you.

Stay-at-home Mom and Working Dad with a Toddler

"We have dinner as a family around 6 p.m. That is followed by playtime before our bedtime routine begins at 7. Since dad has been at work all day, he's in charge of the bath, which happens three times a week, getting our son into his pajamas and stories. We wind down with snuggles and songs before lights out at 7:30. He wakes up between 6:30 and 7:20 a.m. We usually don't have to be anywhere before 9, so I let him sleep."

Two Working Parents with a Toddler and Baby

"We try to eat dinner at 5:30 p.m., but sometimes it doesn't happen until 6. After dinner, we do baths every night because our 2-year-old has eczema, and our doctor said one bath a day can be beneficial. We make sure to use moisturizer as soon as he gets out of the bath. At 7, we read a bedtime story and then lights out by 7:30. The 10-month-old's routine is a different story; we're still working on that."

Part-Time Working Mom and Working Dad with a Toddler

"At 7 p.m., we clean up the toys and get the bath started. We only do a bath once every few days unless he is really active. Then we change into PJs and he gets his lovey, which he absolutely needs to fall asleep. Then I bring him to his room, turn on the sound machine and put him in his crib. We talk about the day and how much fun the next day will be. Lights out happens between 7:30 and 8:30 p.m., but always by 8:30."

Stay-at-Home Mom and Working Dad with a 3-year-old and Baby

"We eat dinner between 5-7 p.m., depending on the day. After dinner, we clean up the kitchen and the baby is changed into pajamas and nursed and rocked to sleep between 8-8:30, while the oldest spends quality time with Daddy. After that, I help the oldest clean up his toys, and then he is changed. I still hum him to sleep, and he is asleep between 8:30-9 p.m. Every other night they get baths before bedtime."

Stay-at-Home Mom and Work-from-Home Dad with a 3-Year-Old

"Our daughter is 3 now. We wait until she's tired, which isn't always at the same time. We take one last potty break, wash up and put on pajamas. We read two books and sing a few songs. Then we lay down with her until she falls asleep, which is usually only 5 to 20 minutes. Her bedtime is between 9 and 11 p.m., but she's typically asleep by 10, and she wakes wake up around 9 a.m. She still takes an afternoon nap, too."

Two Working Parents with a 1-Year-Old

"We pick up from daycare at 4:30 p.m., and play or go on a long walk. Dinner is at 5:30; followed by a bath at 6 and bottle at 6:30. Then we do a story while in bed and our son is usually immediately asleep by 6:45. He wakes up between 6:15 and 6:30 a.m."


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Country Hepplewhite Sideboard
Brand: Hickory Chair
Product Code: 5646-10
Product Code: 5646-10
The Country Hepplewhite style sideboard integrates a blend of aristocratic and country styles. Fine triple bead molding frames the drawer fronts and provides a pleasing contrast to the overall simple lines of the case. It is available in dozens of finish options along with Customer's Own HardwareTM. American Antique is the standard finish as shown. Optional finishes available as 5646-70.
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I have an easy dress upcycle for you. Turn your dress into a bag with simple hand sewing.
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Lyrics Depot is your source of lyrics to Madman Marz by Mortician. Please check back for more Mortician lyrics.
Madman Marz Lyrics
Artist: Mortician
Album: Re-Animated Dead Flesh
Madman marz, psychopath
Say his name, means your death
Hiding out, in the woods
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Hangs you up, breaks your neck
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Mortician Lyrics
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Mortician - Bone Crusher Lyrics
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Mortician - Intro / Gateway To Beyond Lyrics
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Banquet Burgers
Total Time
Prep 10 mins
Cook 20 mins
From the Canadian Living Test Kitchen. Real Cheddar cheese and crispy bacon (add extra if you like) make this traditionally Canadian diner-style burger taste even better at home. Serve in hamburger buns. Canadian Living Magazine, July 2005.
Ingredients Nutrition
- 1 egg
- 2 tablespoons water
- 1⁄4 cup dry breadcrumbs
- 1 small onion, grated
- 1 tablespoon Dijon mustard
- 1 garlic clove, minced
- 1⁄2 teaspoon salt
- 12 teaspoons pepper
- 1 lb lean ground beef
- 4 slices cheddar cheese
- 4 slices cooked bacon
- In large bowl, beat egg with water; stir in bread crumbs, grated onion, Dijon mustard, garlic, salt and pepper. Add beef; mix just until combined. Shape into four 3/4-inch (2 cm) thick patties. (Make-ahead: Layer between waxed paper in airtight container and refrigerate for up to 24 hours or freeze for up to 1 month. Thaw in refrigerator.).
- Place on greased grill over medium heat; close lid and grill, turning once, until digital thermometer inserted sideways into centre reads 160°F (71°C), about 15 minutes.
- Top each burger with cheese and bacon; grill until cheese melts, about 5 minutes.
Most Helpful
We didn't dislike these burgers, but also found nothing extraordinary about them either. Hence, three stars. They tasted like an ordinary hamburger with cheese and bacon on top.
Not only Banquet burgers - a real Canadian burger for sure! Great mix making for excellent burgers. Made up exactly as posted - put some of the burgers in sauce and to mine I added a big slice of onion! Going to make a big batch for the freezer ready for the grill. Thank you Evelyn, now I have what I basically make ... on paper to share with my family!
Seriously yummy burgers that we both really enjoyed. I used reduced fat back bacon and shredded some reduced fat cheddar over it so I could pretend I wasn't being naughty. I know these will be added into our rotation of burger recipes. Made for the Family Picks portion of ZWT4.


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Apple Security Measures Cut Phone Theft By Nearly 40 Percent
The new report says smartphone theft in the first five months of 2014 decreased 38 percent in San Francisco.By Danny Matteson | December 8, 2014
All right, smartphone owners, we've got good news and bad news.
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Individual headsets on land tourSightseeing:See Pisa's Leaning Tower, Verona Juliet's balcony, Venice canal boat ride, Ravenna Byzantine mosaics, visit Olympia, Corinth Canal. Inside visits and special features are shown in UPPERCASE in the tour description including admission charges where applicable.
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NOTE:Security cruise regulations require clients' passport information at time of booking.
The following UNESCO World Heritage Sites can be seen or visited on this vacation:
Transportation: Touring by private, first-class, air-conditioned motorcoach; canal transfer boat in Venice; ferry Ancona-Patras in 2-berth cabins with private shower and toilet
Buffet breakfasts daily; 4 dinners, including a dinner at a local restaurant in Florence and Nauplia
Inside visits and special features are shown in UPPERCASE in the tour description.
Check into your hotel. The rest of the day is free for you to explore Italy's ancient capital. This evening, meet your Tour Director and fellow travelers.
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Vistas of rolling hills, cypress trees, vineyards, olive groves, and rural villages form the backdrop of your journey through beautiful Tuscany. Stop in Pisa to see the Square of Miracles and the amazing Leaning Tower, then on to the Florence area. End the day by joining the optional Tuscan dinner in a typical restaurant.
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Travel across the flatlands of the Po Delta to medieval Ravenna, where you will admire some of its unique byzantine mosaics, listed by UNESCO. Next, reach Ancona on the shores of the Adriatic, to embark on the FERRY for the crossing to Patras.
During the crossing, enjoy all the ship's facilities. Disembark in Patras and drive south into the Peloponnese to Olympia.
Time at leisure, or make the most of this morning by taking the optional tour of the sites of ancient Olympia, including the ruins of the Temple of Zeus. In the afternoon, enjoy the rugged scenery of the Peloponnese on the way to Nauplia. This evening, enjoy dinner at a local restaurant.
Morning visit with a Local Guide to the impressive ruins of MYCENAE, an ancient city indissolubly linked to the Homeric epics. Later, stop to view the Corinth Canal, which was built between 1881 and 1893. Tonight, maybe join an optional Greek dinner.
Join the included sightseeing tour of Athens, featuring the highlights of the ancient capital and a visit to the ACROPOLIS. Explore the shops and museums or take a trip to the coast to swim. In the evening, enjoy the lively atmosphere of the tavernas in the old Plaka district with its narrow streets and sound of bouzouki music.
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These Know Before You Go travel tips are designed with you in mind, with helpful hints to help you prepare for and enjoy your escorted vacation. They are your guide to getting ready and contain general information on travel documentation, customs, and the country/countries you will be visiting, including budgeting, transportation, climate, languages, and much more. With Globus, you benefit from our experience.
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Bossy scores again
The New York Islanders named Mike Bossy a team vice president.
Company plans to start 'inviting customers back' to restaurants in February with stepped-up marketing and direct mail offers.


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January 27, 2011
SHAULTON J. MITCHELL,PETITIONER,v.DONNELL ADAMS, WARDEN, RESPONDENT.
(Doc. 1)
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the petition, which was filed on October 26, 2010.
I. Screening the Petition
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).
Here, Petitioner is an inmate of the California State Prison at Corcoran serving an eight-year sentence imposed in the Fresno County Superior Court. He claims that he suffered a denial of due process of law guaranteed by the Fourteenth Amendment in connection with a prison disciplinary proceeding which resulted in forfeiture of 360 days of credit. (Pet. 1, 3, 8, 22.) Petitioner alleges that he was initially charged with and found guilty of having possessed dangerous contraband on June 23, 2009; later, during the administrative appellate process, the charge was amended to the more serious offense of possession of a deadly weapon. After rehearing, Petitioner was found guilty of possessing a deadly weapon. Petitioner claims that his due process rights were violated by the re-issuance and rehearing of the more serious violation. Petitioner also claims that the greater sentence for the more serious finding was unauthorized under state statutory and regulatory law, and the amendment of the initial charge was contrary to state policy.
II. Due Process of Law
Petitioner alleges that the amendment of the charge and the punishment imposed after rehearing violated his right to due process of law.
A. Legal Standards
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam).
With respect to prison disciplinary proceedings, procedural due process of law guaranteed by the Fourteenth Amendment requires that where the state has made good time subject to forfeiture only for serious misbehavior, then prisoners subject to a loss of good-time credits must be given advance written notice of the claimed violation, a right to call witnesses and present documentary evidence where it would not be unduly hazardous to institutional safety or correctional goals, and a written statement of the finder of fact as to the evidence relied upon and the reasons for disciplinary action taken. Wolff v. McDonnell, 418 U.S. 539, 563-64 (1974). Confrontation, cross-examination, and counsel are not required. Wolff, 418 U.S. at 568-70.
Further, where good-time credits are a protected liberty interest, the decision to revoke credits must be supported by some evidence in the record. Superintendent v. Hill, 472 U.S. 445, 454 (1985). The Court in Hill stated:
We hold that the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if "there was some evidence from which the conclusion of the administrative tribunal could be deduced...." United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S., at 106, 47 S.Ct., at 304. Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. See ibid.; United States ex rel. Tisi v. Tod, 264 U.S. 131, 133-134, 44 S.Ct. 260, 260-261, 68 L.Ed. 590 (1924); Willis v. Ciccone, 506 F.2d 1011, 1018 (CA8 1974).
Superintendent v. Hill, 472 U.S. at 455-56. The Constitution does not require that the evidence logically preclude any conclusion other than the conclusion reached by the disciplinary board; rather, there need only be some evidence in order to ensure that there was some basis in fact for the decision. Superintendent v. Hill, 472 U.S. at 457.
B. Analysis
Petitioner attached to the petition records of the disciplinary proceedings. In his administrative appeal, Petitioner alleged that on June 25, 2009, he was provided a copy of a rules violation report for possession of dangerous contraband, and was found guilty of that offense on July 20, 2009. (Pet. 17.)
A memorandum from a chief disciplinary officer to the facility captain at the Corcoran prison, dated August 3, 2009, reflects that after an audit of the disciplinary proceeding, it was determined that the information provided in the rules violation report did not appropriately support the charged offense of possession of dangerous contraband, but rather the charge of possession of a deadly weapon; the officer directed that the charge ("CDCR 115") be reissued and reheard, and that it and a copy of the order for rehearing be given to Petitioner. (Pet. 18.)
The report of Correctional Lieutenant M. Gamboa dated August 15, 2009, details the pre-hearing procedures as well as the hearing that took place on August 14, 2009. (Pet. 22-25.) Petitioner received a copy of the rules violation report on August 9, 2009, along with the memorandum directing a rehearing. (Pet. 22.) Thus, Petitioner received in advance of the hearing written notice of the claimed violation.
Petitioner was assigned an investigative employee (IE) and a staff assistant on August 9, 2009, and he received a copy of the IE's report on August 12, 2009. (Pet. 23.) Petitioner declined an invitation to review the photographic evidence before the hearing. (Pet. 25.)
The documentation reflects that because Petitioner refused to attend the hearing, a plea of not guilty was entered on his behalf by the hearing officer. (Pet. 24.) Petitioner did not request any witnesses to be present at the hearing. (Pet. 24, 29.) There is no indication in the petition that Petitioner requested that he be permitted to submit any documentary evidence. Therefore, it appears on the face of the petition and attached documentation that Petitioner had a right to call witnesses and present documentary evidence but declined to avail himself of the opportunity to do so. No violation of due proces appears with respect to this aspect of the proceedings.
The hearing officer decided that Petitioner was guilty of the offense of possession of a deadly weapon, and he based the finding on the preponderance of the evidence at the hearing. (Pet. 24.) Petitioner admitted that he received a copy of the completed report (Pet. 8), which in turn stated the reasons for the decision and the evidence relied upon by the hearing officer (Pet. 24-25). Petitioner thus received a written statement of the evidence relied upon and reasons for the decision.
Although Petitioner argues that he was unable to exhaust administrative remedies in a timely fashion, any failure to do so does not affect the analysis set forth in this order, which addresses the operative allegations of the petition and the associated documentation.
Petitioner does not allege any facts that contradict the documentation.
In summary, the Court concludes that it is apparent from the face of the petition and attachments that Petitioner received all the process that was due him with respect to the re-issuance and rehearing of the disciplinary charge.
Petitioner does not argue that the disciplinary finding was unsupported by some evidence. Nevertheless, the Court notes that the hearing officer's report states that he based his finding of guilt on various pieces of evidence, including 1) the written reports of Correctional Officers D. Arellano and A. Mendoza, in which they stated that during an unclothed search of Petitioner, the two officers found on Petitioner's person an inmate-manufactured weapon measuring one-half inch in width and six inches in length, with a sharpened point; and 2) photographs of the weapon. (Pet. 24-25.) It thus appears that the decision was supported by some evidence, namely, the reports of employees with personal knowledge of the pertinent events, which in turn were consistent with corroborative physical evidence. Therefore, it does not appear possible that Petitioner could allege facts concerning the disciplinary proceeding that would constitute a due process violation.
Therefore, it will be recommended that the claim of a due process violation be dismissed without leave to amend.
III. Failure to Comply with State Law
Petitioner argues that the forfeiture of time credits that he suffered was not authorized by the governing regulations. The Court notes that Cal. Code Regs., tit. 15, § 3323(a) and (b)(8) authorize the forfeiture of up to 360 days credit for division "A-1" offenses, which include possession of a deadly weapon. Section 3006(a) provides that inmates may not possess or have under their control any weapons. Cal. Code Regs., tit. 15, § 3006(a).
However, in any event, Petitioner's claims concerning the application of state law are not cognizable in this proceeding. Federal habeas relief is available to state prisoners only to correct violations of the United States Constitution, federal laws, or treaties of the United States. 28 U.S.C. § 2254(a). Federal habeas relief is not available to retry a state issue that does not rise to the level of a federal constitutional violation. Wilson v. Corcoran, 562 U.S. - , 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Alleged errors in the application of state law are not cognizable in federal habeas corpus. Souch v. Schiavo, 289 F.3d 616, 623 (9th Cir. 2002).
Petitioner's claim concerning the extent of proceedings and sentences authorized by the state regulatory code concerns only the application of state law. Likewise, his complaint that there is no state law policy to allow amendment of the disciplinary charge involves only a state matter and does not rise to the level of a cognizable claim of a violation of federal due process. To the extent that Petitioner complains of delays in the administrative appellate process, he is complaining of noncompliance with state law. These matters are not cognizable in federal habeas corpus.
Therefore, it will be recommended that the petition be dismissed without leave to amend.
IV. Certificate of Appealability
Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the Court of Appeals from the final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A certificate of appealability may issue only if the applicant makes a substantial showing of the denial of a constitutional right. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). A certificate should issue if the Petitioner shows that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in any procedural ruling. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). In determining this issue, a court conducts an overview of the claims in the habeas petition, generally assesses their merits, and determines whether the resolution was debatable among jurists of reason or wrong. Id. It is necessary for an applicant to show more than an absence of frivolity or the existence of mere good faith; however, it is not necessary for an applicant to show that the appeal will succeed. Miller-El v. Cockrell, 537 U.S. at 338.
A district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Rule 11(a) of the Rules Governing Section 2254 Cases.
Here, it does not appear that reasonable jurists could debate whether the petition should have been resolved in a different manner. Petitioner has not made a substantial showing of the denial of a constitutional right.
Accordingly, it will be recommended that the Court decline to issue a certificate of appealability.
V. Recommendation
Accordingly, it is RECOMMENDED that:
1) The petition be DISMISSED without leave to amend for failure to state a claim cognizable in federal habeas corpus; and
2) The Court DECLINE to issue a certificate of appealability; and
3) The Clerk be DIRECTED to close the action because dismissal of the petition will terminate the action.
These findings and recommendations are submitted to the United States District Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, 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." Replies to the objections shall be served and filed within fourteen (14) days (plus three (3) days if served by mail) after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). 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).
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