FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner currently confined at the California State Prison-Solano, is proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a prison disciplinary conviction that resulted from a rules violation report issued against him on July 27, 2007, while imprisoned at the California Men's Colony in San Luis Obispo.*fn1 Petitioner seeks relief on due process grounds, claiming that (1) there was insufficient evidence to convict him of "possession of escape paraphernalia"; and (2) the hearing officer improperly declined to call petitioner's requested witness. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus be granted.
In its denial of petitioner's application for a writ of habeas corpus, the San Luis Obispo County Superior Court provided the following factual summary:
At all relevant times, Mr. Santibanez was an inmate at the California Men's Colony. To celebrate a Summer Solstice PowWow, certain Native American artifacts were brought into the prison. Included in these artifacts were four checkered bandanas and an "Indian type" woven quilt/rug/blanket approximately 36" x 24". These items had been supplied by Mr. Santibanez's mother. After the Summer Solstice Pow-Wow had run its course, Mr. Santibanez, with the verbal "ok" from an employee of the Department of Corrections and Rehabilitation in charge of the Summer Solstice Pow-Wow, kept the bandanas and the quilt/rug/blanket and stored them in his cell. When prison staff was unable to account for these items and [sic] investigation was initiated. Because Mr. Santibanez's mother had brought these items into the prison, Mr. Santibanez was interviewed. Mr. Santibanez admitted that he had the items in his cell. He was subsequently issued a former Rules Violation, dated June 16, 2007, for "Possession of Escape Paraphernalia." On July 27, 2007, Mr. Santibanez was found guilty of the charged and was assessed a work-time credit loss of 120 days. He was also counseled at length concerning this incident.*fn2 Officials at the California Men's Colony charged and convicted Mr. Santibanez of "possession of escape paraphernalia" because the quilt/rug/blanket was predominantly a particular shade of green which closely resembles the green color of the prison staff's uniforms. The hearing officer noted in his written decision that "The green patches of the quilt could have easily been removed and used to manufacture a garment that would resemble custody uniforms . . . the inmate population is keenly aware of the policy that inmates shall not possess any items that may resemble any color of staff's uniforms. . . . There is not one scintilla of evidence that Mr. Santibanez possessed the quilt with any intention of mimicking staff uniforms.
(Answer, Ex. 3 (hereinafter Sup. Ct. Opinion) at 42*fn3 .)
As to the conduct of the disciplinary hearing, petitioner requested that Brenda Ojeda, a prison supervisor, appear as a witness to testify that she told petitioner he could keep "a few items" from the Pow-Wow, such as the four bandanas and prayer blanket. (Pet. at 22.) The hearing officer denied petitioner's request because Ms. Ojeda "was no longer employed by the State of California and could not be present for the hearing." (Answer, Ex. 2 at 35.) However, the hearing officer agreed to stipulate that "Ms. Ojeda would testify that she told [petitioner], 'It would be OK to keep a few items.'" (Id.)
II. Statutory Basis of Conviction
A. California Administrative Code. tit. 15 § 3323
The hearing officer found that the four bandanas and the prayer blanket constituted contraband as defined in California Administrative Code. tit. 15, § 3000 ("anything, which is not permitted, in excess of the maximum quantity permitted, or received or obtained from an unauthorized source"). (Answer, Ex. 2 at 35.) Possession of non-dangerous contraband is a misdemeanor administrative rule violation, triggering a range of available punishments including counseling and temporary loss of privileges, but not including work-time credit forfeiture. Id., §§ 3314(a)(3)(A), 3314(e).
However, the hearing officer in this case classified petitioner's violation as a Division "C" offense under § 3323(e)(4)*fn4 , based on "evidence that Santibanez did furnish himself with equipment that would aid him in an escape attempt." (Answer, Ex. 2 at 35.) Division "C" offenses trigger a time-credit forfeiture of 90-120 days. Id., § 3323(e)(3) ("[f]urnishing equipment for or aiding and abetting an escape or escape attempt").
On administrative appeal, prison authorities upheld petitioner's disciplinary conviction as "supported by CCR 3000, Definitions, which states in part that progress toward implementing an escape must be made to implement a plan. This includes, but is not limited to, the following overt acts: acquiring unauthorized clothing . . ."*fn5 (Pet. at 37.) As stated in an administrative decision denying petitioner's appeal: "The key to the preponderance in this case is the fact that you illicitly furnished yourself with contraband that could be utilized in an escape attempt. As you can see in CCR § 3000 . . . , progress toward implementing an escape plan includes, but is not limited to acquiring unauthorized clothing." (Id. at 54 ) (emphasis in original).
C. California Administrative Code. tit. 15 § 3006
Prison authorities also cited California Administrative Code. tit. 15, § 3006 as a basis for petitioner's conviction. (Pet. at 37.) Section 3006(c)(4) prohibits inmates from possessing, among other types of contraband, "any matter which ...