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PALMER v. LAMARQUE

December 21, 2005.

WILL M. PALMER, Petitioner,
v.
A. LAMARQUE, Respondent.



The opinion of the court was delivered by: SUSAN ILLSTON, District Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

INTRODUCTION

Will M. Palmer, a California prisoner, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge a prison disciplinary decision. This matter is now before the court for consideration of the merits of the petition. For the reasons discussed below, the petition will be denied.

  BACKGROUND

  Palmer is in custody serving a life-with-possibility-of-parole sentence following his conviction in the Los Angeles County Superior Court of five counts of first degree murder and two counts of attempted robbery. His habeas petition does not challenge that conviction, but instead challenges a prison disciplinary decision, made after a hearing, which imposed an 18 month SHU term and loss of 150 days good time credits.*fn1 Specifically, Palmer alleges that he was not allowed to present witnesses and documentary evidence, that he was not allowed to have the aid of an inmate or staff helper, that he was not allowed to be present at the hearing, and that the disciplinary decision is not supported by sufficient evidence.

  The present action concerns the second of two incidents which occurred within about two hours on December 19, 2002. Both incidents will be described because the first incident puts the second one in context.*fn2

  At about 10:00 a.m. on December 19, 2002, Palmer was approached by correctional officer ("C/O") Valdez and sergeant Walker. They asked to see his identification card. According to the correctional staff's version, Palmer tried to pull his identification card from Walker, repeatedly tried to walk away, resisted efforts to restrain him, and turned toward Walker and Valdez in an aggressive manner. C/O Valdez and sergeant Walker put him on the ground and handcuffed him. A rule violation report was issued for the 10:00 a.m. incident.*fn3 Palmer disagrees with this version and claims he was subjected to excessive force by these two guards. At about 11:30 a.m. on December 19, 2002, Palmer had another run-in with correctional staff. In a CDC-115 rules violation report, C/O Valdez described the incident:
On Thursday, December 19, 2002, at approximately 1130 hours, while performing my duties as Security Squad Officer # 1, I was collecting DNA specimen samples on Facility "C" along with Lieutenant, G. Salazar, Phlebotomist S. Fagan, Officers B. Gibbs, S. Henley, and Officer R. Lebedeff. We were in the "C4" Officers Office preparing for DNA collection when Inmate Palmer (H-08789, C4-132) charged into the office and assaulted me. I was standing approximately five (5) feet from the office doorway next to one of the desks in the office reading DNA paper work when I heard, "You think you're a big man now." When I looked in the direction of the doorway I saw Inmate Palmer charging at me. Inmate Palmer abruptly grabbed me around the back of my neck with his left arm, and struck me three (3) times on the left side of my face with his right fist. I immediately grabbed Inmate Palmer around his waist with my right arm, and grabbed the chest area of his jacket with my left. I then shoved Inmate Palmer back away from me. At the same time Officers B. Gibbs, and Officer R. Lebedeff grabbed Inmate Palmer, and pulled him away from me. As Inmate Palmer was falling he kept hold of my neck with [] his left arm. During the fall Inmate Palmer managed to turn his back to me at which time I put my right hand on his back, and pushed him forcing him to the floor. Our combined momentum carried all of us to the floor directly in front of the office doorway where Inmate Palmer fell face down. At that time I stood up, and Lieutenant Salazar instructed me to stay back.
Resp. Ex. B, p. 1 (errors in original).

  On December 27, 2002, Palmer was given written notice on form CDC-115 of the disciplinary charges against him resulting from the 11:30 a.m. incident.

  On January 8, 2003, Palmer was put on "management control status" for ten days because he had disrupted the orderly operations of his housing area by placing towels over his cell windows to obstruct staff views of the inside of his cell. Traverse, Ex. D. Management control status resulted in removal of all property except a blanket, boxer shorts and toilet paper. His CDC-115 forms and other papers were removed.

  On January 12, 2003, guards came to Palmer's cell to tell him the hearing on the charges for the 11:30 a.m. incident was about to take place. The CDC-115 form*fn4 has a handwritten note stating "Inmate Palmer refused to attend his 115 hearing," signed and dated January 12, 2003. Resp. Ex. B, p. 1. The hearing officer noted in several places that Palmer had refused to attend the hearing. Palmer disagrees and contends that he was not allowed to be present at the hearing. As Palmer describes it, when the officers told him his hearing on the 11:30 a.m. incident was about to be conducted, he "informed the officer that his copy of his 115s RVRs had been confiscated and that petitioner had not yet received the investigators' report. Petitioner also requested to be provided with the confiscated 115s. [¶] This officer informed petitioner that he would inform the senior hearing officer of the situation and gave petitioner the impression that he was going to return with a response to petitioners statement and request. However, the officer never returned and the hearing was conducted without petitioner being present." Petition, p. 7d (errors in original). In an inmate grievance, Palmer described the event slightly differently: an "officer came to my cell door & requested that I attend" and "I informed these C/Os that my copy of these 115 RVR were confiscated on 1-8-03 by officers . . . along with my other property and for this reason I was unequipped to defend myself against the false charges. I did not refuse to be at my hearing." Resp. Ex. I, CDC-602 signed Feb. 2, 2003.

  Palmer did not have any aid from a staff assistant or investigative employee. The CDC-115 form states that Palmer was denied staff assistance because he spoke English and had no mental illness such that he required assistance to understand the process. Resp. Ex. B, p. 2. The CDC-115 form also stated that Palmer did not meet the criteria for assignment of an investigative employee and had waived it in writing on December 27, 2002. Id. at ¶. 2, 6.

  Palmer exhausted his state remedies for the disciplinary decision of January 12, 2003. The Monterey County Superior Court's decision rejecting Palmer's state habeas petition is the only reasoned decision from the state court. The California Supreme Court denied Palmer's habeas petition without comment.

  Palmer then filed this action for a writ of habeas corpus. After reviewing Palmer's petition for writ of habeas corpus, the court issued an order to show cause. Respondent filed an answer and Palmer filed a ...


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