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Tamayo v. Vasquez

September 16, 2008

JOE TAMAYO, PETITIONER,
v.
PAT VASQUEZ, RESPONDENT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation ("CDCR") following a conviction in the San Bernardino County Superior Court for assault, false imprisonment, grand theft person, kidnaping, and murder. (Exhibit 1, Abstract of Judgment, attached to Answer.) Petitioner is serving an indeterminate term of imprisonment. (Id.)

In the instant petition, Petitioner does not challenge the propriety of his conviction; rather, he challenges a disciplinary action in which he was found guilty of a rules violation on March 29, 2005, for participating in an unlawful assembly/strike. He contends that there was insufficient evidence to support the finding of guilt.

Petitioner challenged his guilty finding by filing an administrative appeal. (Exhibit 3, attached to Answer.) The informal and first formal levels of review were bypassed. (Id.) The second level affirmed the results of the disciplinary hearing and found that the Senior Hearing Officer's ("SHO") decision was supported by a preponderance of the evidence. (Id.) The third and final level of review also affirmed the finding of guilt. (Id.)

Thereafter, Petitioner filed a petition for writ of habeas corpus in the Kern County Superior Court contending there was no evidence to support his finding of guilty, and other inmates were properly found not guilty. (Exhibit 4, attached to Answer.) The petition was denied in a reasoned decision. (Id.)

Petitioner next filed a petition in the California Court of Appeal raising the same arguments raised in the prior petition. (Exhibit 5, attached to Answer.) The petition was summarily denied. (Id.)

Lastly, Petitioner filed a petition in the California Supreme Court, which was also summarily denied. (Exhibit 6, attached to Answer.)

Petitioner filed the instant petition for writ of habeas corpus on November 26, 2007. (Court Doc. 1.) Respondent filed an answer to the petition on March 17, 2008. Petitioner filed a traverse on May 21, 2008. (Court Docs. 8, 11.)

DISCUSSION

A. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to a judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. Petitioner's claims for relief arise out of a disciplinary hearing at Wasco State Prison, California, which is located within the jurisdiction of this Court. 28 U.S.C. ยงยง 2254(a), 2241(d). If a constitutional violation has resulted in the loss of time credits, such ...


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