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Kao v. Knowles

May 21, 2009

CHUNG KAO, PETITIONER,
v.
MIKE KNOWLES, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner Chung Kao is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges disciplinary action taken against him resulting in the loss of "good-time" credits.

II. CLAIMS

Petitioner claims that:

A. There was no evidence his action constituted a "serious rule violation";

B. His right to due process was violated; and

C. The state court opinion was contrary to federal law and was unreasonable. Upon careful consideration of the record and the applicable law, it is recommend that this petition for habeas corpus relief be denied.

III. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts

The first incident occurred, according to the June 2, 2006 Rules Violation Report, on May 30, 2006, when Correctional Officer Ward informed petitioner he was being moved to a different cell. Answer, Ex. 1 at 39. Petitioner reportedly refused the move and stated, "I am not going to move, I'd rather go to the hole." Id. Sergeant Dark then informed petitioner that continued refusal would result in disciplinary action and housing in Administrative Segregation. Id. Petitioner remained defiant and was escorted to the Program Lieutenant's office. Id. Petitioner allegedly told the Program Lieutenant that he would rather move to "the hole" (Administrative Segregation). Id. Petitioner was then moved to Administrative Segregation. Id.

A disciplinary hearing was held on June 13, 2006. Id. Petitioner testified that he was ordered to move "or go to the hole." Id. at 40. He claimed that he elected to move to Administrative Segregation and thus did not disobey any order because going to "the hole" was "part of [the] order." Id. He also argued that refusing a cell move was not a serious rule violation. Id. At the conclusion of the hearing petitioner was found guilty and assessed 30 days of disciplinary credit forfeiture. Id. at 41.

The second incident occurred on May 31, 2006, according to the Rules Violation Report of that same date. Plant Operation Staff reported observing petitioner typing a legal document on his authorized inmate work computer. Id. at 44. Correctional Officer Smith conducted an audit of that computer and found two personal legal files. Id. The first file was a letter addressed to a paralegal bearing petitioner's name, CDC number, and cell number. Id. The letter appeared to be written on behalf of another inmate. Id. The second file was a document concerning a lawsuit between petitioner and a third party. Id.

As a result of this report a disciplinary hearing was held on June 23, 2006. Id. Petitioner requested the hearing be postponed so that he could collect additional evidence. Id. That request was denied after the Hearing Officer found that the "inculpatory evidence against [petitioner] [was] overwhelming" and that the additional evidence he was attempting to obtain was "irrelevant." Id.

Petitioner pled not guilty and provided a typed statement in his defense. Petition Part 2 at 34. With respect to the document related to the lawsuit petitioner argued that it was the computer that created the unauthorized file and he merely provided the information in an attempt to organize the computer's disorganized template files. Id. He stated that while he "could have answered the wizard with fictitious information" at the time the file was created he had already filed the legal document with the appropriate court. Id.

With respect to the letter to the paralegal written on behalf of another inmate he claimed he was framed by prison staff in retaliation for filing grievances and legal actions. Id. He claimed that after he was placed in Administrative Segregation on May 30, 2006, prison staff searched his legal paperwork, found a copy of a letter a third party prepared for him, and used it to create a file on his work computer. Id. at 35-36.

In support of this argument petitioner noted that Plant Operation Staff have a duty to immediately report any impropriety. Id. at 36. He claimed that if he had written the letter on his work computer he would have been observed by Plant Operation Staff. Id. He reasoned that because he was not immediately reported and his computer was not immediately audited in his presence he must not have been observed typing the letter. Id.

Finally, petitioner argued that he was the interpreter for the inmate referenced in the letter and had been called upon to interpret for the prisoner during medical emergencies. Id. He reasoned therefore that even if he did write the letter, "it apparently would have been for benevolent purposes and not for my own benefit nor for any gain from others." Id.

At the conclusion of this hearing petitioner was found guilty and assessed 30 days loss of work time credit. Answer, Ex. 1 at 49.

B. State Habeas Review

On February 7, 2007, petitioner filed a petition for writ of habeas corpus in the San Luis Obispo County Superior Court. Answer, Ex. 1 at 2. On May 2, 2007, that court denied the ...


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