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Moses v. Almager

August 24, 2007

ARTHUR C. MOSES, PETITIONER,
v.
V.M. ALMAGER, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge

ORDER:

(1) ADOPTING R&R; and

(2) DENYING PETITION FOR WRIT OF HABEAS CORPUS

On September 7, 2006, Petitioner Arthur C. Moses ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. [Doc. No. 1.] Petitioner brings this action in response to a denial of his due process rights during prison disciplinary proceedings. On December 26, 2006, Respondent, Warden V.M. Almager ("Respondent"), filed a Response to the Petition. [Doc. No. 6.] On February 7, 2007, Petitioner filed a Traverse. [Doc. No. 8.] Magistrate Judge Louisa Porter issued a Report and Recommendation ("R&R") advising that this Court deny the Petition. [Doc. No. 9.] On July 19, 2007, Petitioner filed an Objection to the R&R. [Doc. No. 11.] The Court reviewed the papers filed and determined that the issues presented were appropriate for decision without oral argument. See S.D. Cal. Civ. R. 7.1(d)(1) (2006). For the reasons set forth below, the Court (1) ADOPTS the R&R, (2) DENIES the Petition, and (3) DISMISSES the Petition WITH PREJUDICE.

Factual Background

I. Facts

On March 1, 2001, Petitioner was sentenced to a ten-year prison term for one count of sale/transportation/offer to sell a controlled substance in violation of California Health and Safety Code Section 11352(A). (See Lodgm't No. 1, Abstract of Judgment, at 1.) On July 24, 2004, while Petitioner was incarcerated at Imperial Centinela State Prison, Petitioner was searched by a correctional officer after the officer discovered approximately fifty cigarette rolling papers taped to Petitioner's identification card. (See Lodgm't No. 2, Rules Violation Report, at 1.)*fn1 Petitioner refused to comply with the search and the correctional officer used force to subdue him. (See id. at 2.) During the encounter, Petitioner removed a bundle from his shoe and threw it out a window. (See id.) The bundle was retrieved, appeared to be marijuana, and was sent to the forensic laboratory for testing. (See id.) On August 6, 2004, the forensic lab issued a report that confirmed that the substance contained in the bundle Petitioner had thrown was 11.25 grams of marijuana.*fn2 (See Lodgm't No. 4, Laboratory Report, at 1.) Imperial Centinela State Prison received the report from the forensic laboratory on September 1, 2004. (See Lodgm't No. 2 at 4.) On this same date, Petitioner was charged with a prison violation for "possession of a controlled substance for distribution and sales." (See Lodgm't No. 2 at 1.) Petitioner was given a copy of the Rules Violation Report on September 15, 2004. (See id.) Petitioner was also prosecuted by the Riverside District Attorney's Office. (See Lodgm't No. 5, Abstract of Judgment, at 1.) On May 16, 2005, Petitioner pled guilty to one count of possession of a controlled substance, and was sentenced to an additional two years and eight months in prison, to be served concurrently with his original sentence. (See id.)

On June 16, 2005, Petitioner appeared before a Senior Hearing Officer at an administrative disciplinary hearing. (See Lodgm't No. 2 at 4.) Petitioner pled guilty to possession of marijuana, but stated "it was for personal use only." (See id.) The Senior Hearing Officer, however, found that the preponderance of the evidence supported the fact that Petitioner had intended to distribute the marijuana, and found Petitioner guilty of California Code of Regulations, Title 15, Section 3016(a). (See id.) The Senior Hearing Officer based his decision on his training and experience, the forensic laboratory report, the quantity of marijuana, Petitioner's admission to possessing the marijuana, and the report by the correctional officer who recovered the marijuana. (See id. at 4-6.) The correctional officer's report stated that the prison value for marijuana is approximately two-hundred dollars per gram, for a total estimated prison value of $2,700 for the amount of marijuana recovered from the Petitioner.*fn3 (See id. at 2.) Petitioner was assessed a one-hundred eighty-day credit forfeiture, a one year loss of all visiting privileges, a two-year loss of contact visiting privileges, and a loss of family visiting privileges. (See id. at 7.)

On June 21, 2005, Petitioner appealed the decision of the Senior Hearing Officer to the Second Level Formal Review. (See Pet. at Ex. A, 5-6.) Petitioner argued that the correctional facility violated the mandatory time constraints when it waited for the return of the forensic laboratory report before issuing a Rules Violation Report, and that the Rules Violation Report did not contain the required information. (See id.) On July 29, 2005, the Second Level Formal Review denied Petitioner's appeal. (See id. at 15.) On August 16, 2005, Petitioner asserted a Director's Level appeal on the same grounds. (See Lodgment 6, Director's Level Appeal Decision, at 1.) This appeal was denied on February 2, 2006. (See id.)

II. Procedural History

A. State Proceedings

Petitioner filed a Petition for Writ of Habeas Corpus in the Imperial County Superior Court.*fn4 [Lodgm't No. 7.] Petitioner claimed that he was denied due process as a result of the disciplinary hearing because: (1) the delay between the time he committed the offense and the time he received a copy of the Rules Violation violated regulation time constraints, and (2) the disciplinary board did not satisfy the "some evidence" standard to support its findings of guilt. (See Lodgment No. 7, Order Denying Petition for Writ of Habeas Corpus, at 1.) On March 21, 2006, the Superior Court denied the Petition. (See id.)

Petitioner filed a Petition for Writ of Habeas Corpus in the California Court of Appeal.*fn5 [Lodgment No. 8.] Petitioner asserted the same two claims alleging violations of his due process rights. (See id. at 2.) On June 9, 2006, the Court of Appeal denied the petition, holding that the prison's issuance of the Rules Violation Report was reasonable "considering its overall diligence in obtaining the laboratory results," and that "some evidence" supported the disciplinary board's findings. (Id. at 2.)

On June 23, 2006, Petitioner filed his Petition in the California Supreme Court, again alleging the same two due process violations. (See Lodgm't No. at 1.)*fn6 On July 12, 2006, the California Supreme ...


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