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Poon v. Carey

December 19, 2008

ALBERT POON, PETITIONER,
v.
TOM L. CAREY, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a May 7, 2003 disciplinary conviction he received while in the custody of the California Department of Corrections at California State Prison-Solano ("CSP-Solano"). He seeks federal habeas corpus relief on the grounds that his Fourteenth Amendment due process rights were allegedly violated because: (1) he was not present at the disciplinary hearing at issue and did not waive the right to be present in writing, and (2) his conviction was obtained through the unconstitutional failure of the prison authority to disclose evidence favorable to him. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

BACKGROUND

On April 7, 2003, petitioner received a CSP-Solano Rules Violation Report ("RVR") indicating he was charged with violating California Code of Regulations, title 15, section 3006(a), for possession of inmate manufactured weapons, after Correctional Officer P. Baker found two inmate manufactured weapons in the cell petitioner and his cellmate occupied. Ans., Ex. C. A disciplinary hearing on petitioner's RVR was held on May 7, 2003. Id. At the beginning of the hearing, petitioner told the hearing officer that he did not want to be there and he walked out of the hearing. Pet., Attach. 8;Pet. at 5. According to the RVR, petitioner "did not make any objections to proceed with the hearing. [He] made objections to proceed with [the] hearing after it began stating, 'I'm leaving. I don't want to be here.' [Petitioner] elected to have this RVR adjudicated in absentia." Pet., Attach. 8. Petitioner contends that he left the hearing after discovering that the hearing officer did not have a copy of an investigative report he believed to be crucial to his case, and that he did not waive his right to be present at the hearing.*fn1

Pet. at 5. According to the hearing officer, however, petitioner wanted to leave the disciplinary hearing after admitting to ownership of the weapons and after being questioned about that by the hearing officer. Traverse, Ex. F.

After petitioner left the hearing, the hearing officer entered a not guilty plea on petitioner's behalf. Pet., Attach. 8. Thereafter, the following evidence was presented: the RVR and supplemental report, petitioner's mental assessment, an investigative employee's report, a crime incident report, a medical incident report, testimony from Officer Baker regarding the weapons he found in petitioner's cell, and testimony from Sergeant E. Da Rosa (who spoke to petitioner after the weapons were found) regarding petitioner's statements that the instruments that were found in his cell were not weapons and that he "uses them to cook vegetables." Id. Sergeant Da Rosa also testified that he did not receive any confidential information from any inmates that there were weapons in petitioner's cell. Id. Petitioner did not offer any evidence to substantiate his innocence. Ans., Ex. C. Petitioner was then found guilty of the charge against him and was assessed a loss of 360 days of worktime credit, 10 months of segregated housing, and the addition of 24 unfavorable points (which led to his transfer to CSP-Sacramento, a higher-security prison, on March 2, 2005).*fn2 Pet. at 2, 8, Attach. 6, 8; Ans., Ex. C.

Petitioner unsuccessfully challenged the finding of guilt via CSP-Solano's administrative appeal process. His appeal at the director's level (the final level of appeal) was denied on November 7, 2003 for the following reasons:

The reviewer found that the appellant was appropriately found guilty of the RVR charge. The reviewer considered the appellant's explanation; however, determined it does not justify his request. The reviewer affirms that the appellant walked out of the hearing stating, "I'm leaving, I don't want to be here." The reviewer notes that the [Senior Hearing Officer ("SHO")] documents that the appellant elected to have the RVR conducted in absentia. Despite his claim that the RVR hearing was conducted by a different SHO, the reviewer relates that the appellant has not produced any evidence that supports this allegation. Moreover, the reviewer relates that there is no evidence that any confidential information, related to this incident, exists. Finally, the reviewer relates that there is no evidence that any other attempted to set up the appellant by placing the weapon in his cell. The reviewer points out that the appellant admitted that he used one of the weapons to cut vegetables. The reviewer notes that the SHO afforded the appellant all procedural due process and that after reviewing all available information found the appellant guilty of the charge.

***

The documentation and arguments presented are persuasive that the appellant has failed to support his contention that he was inappropriately found guilty or that a second SHO conducted the RVR hearing after he decided to leave the hearing. Moreover, the reviewer has demonstrated that there was no confidential information related to this incident or utilized by the SHO in rendering a decision. The appeals examiner finds the guilty finding to be appropriate.

Pet., Attach. 1.

On July 2, 2003, petitioner filed a petition for writ of habeas corpus in California's First District Court of Appeal. Pet., Attach. 1. The petition was summarily denied on July 9, 2003. Id. Thereafter, on December 8, 2003, petitioner filed a petition in this court. Ans., Ex. L. That petition was dismissed on March 31, 2004, because petitioner had failed to exhaust his state court remedies. Pet., Attach. 4; Ans., Ex. M. On April 6, 2004, petitioner filed a petition for a writ of habeas corpus from the California Supreme Court. That court summarily denied his petition on March 16, 2005. Pet. at 9, Attach. 1, 7. On April 22, 2005, petitioner filed a second petition for writ of habeas corpus before this court.

ANALYSIS

I. Standards for a Writ of Habeas Corpus

Pursuant to 28 U.S.C. § 2254, a person in custody under a state court judgment may apply for a writ of habeas corpus "on the ground he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Because petitioner filed his application for a writ after the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), the writ may not be granted with respect to ...


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