The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
ORDER, FINDINGS AND RECOMMENDATIONS
Petitioner, Maurice Scott, is a state prisoner proceeding pro se with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges the loss of 360 days of worktime credit following a prison disciplinary proceeding where he was found guilty of battery of an inmate with serious injury. Petitioner raises several claims in his federal habeas petition; specifically: (1) Petitioner was not given the right to cross-examine and confront the confidential informant ("Claim I"); (2) Petitioner was not permitted to summon witnesses, submit documents or be assigned an investigative agent at his disciplinary hearing ("Claim II"); (3) Petitioner was not given at least twenty-four hours notice of the scheduled disciplinary hearing ("Claim III"); (4) the senior hearing officer (SHO) improperly imposed a 360-day loss of worktime credit when California regulations only allow for a shorter forfeiture ("Claim IV"); and (5) Petitioner's equal protection rights were violated when his co-defendant only received a loss of 30 days worktime credit and Petitioner lost 360 days ("Claim V"). For the following reasons, it is recommended that Petitioner's habeas petition be denied.
II. FACTUAL AND PROCEDURAL BACKGROUND
According to the prison incident and Rules Violation Report (RVR), on January 4, 2005 staff discovered inmate Miller who had sustained serious bodily injury consistent with being the victim of battery. (See Resp't's Answer, Ex. 5 at p. 89.) Miller sustained various injuries including lacerations to the head which required fifteen sutures to close. (See id. at p. 73.) After an investigation by prison staff, it was determined that Petitioner and Miller engaged in mutual combat on January 4, 2005 that ended in Miller being subject to battery with serious bodily injury by Petitioner. (See id.) On January 10, 2005, a confidential informant contacted Captain Moser. The confidential informant provided the following information during his interview:
The C/I observed inmates Miller and Scott shoving one another, while both were being verbally confrontational. Both inmates began wrestling and Scott ended up getting "slammed to the floor." At this point, both inmates became very agitated and began swinging at each other. Both inmates were striking one another about their head and upper torsos. In speaking with other inmates the source learned that the incident started as "horseplay" and escalated to a fight.
On January 18, 2005, Petitioner was given a copy of the reports related to this purported rules violation. (See Pet'r's Pet. at p. 10; Resp't's Answer at p. 4-5.) Petitioner was assigned an investigative employee. The investigative employee completed his report on January 23, 2005.
The disciplinary hearing occurred on February 5, 2005. The SHO found Petitioner guilty of battery of an inmate with serious injury. (See Resp't's Answer, Ex. 1 at p. 75.) As evidence to support this finding, the SHO cited to the RVR which stated that after an investigation, it was determined that Petitioner and Miller were engaged in mutual combat that resulted in Miller being subjected to battery with serious bodily injury by Petitioner. (See id.) Petitioner forfeited 360 days of worktime credit. (See id.)
Subsequently, Petitioner filed a habeas petition in the California Superior Court. In that petition, Petitioner alleged that his due process rights were violated and the forfeiture of his worktime credits violated California regulations because the hearing took place before he received notice of the rejection of the referral by the district attorney. The Superior Court denied the habeas petition by stating the following: "the Court finds that Petitioner has failed to state a prima facie case for relief. (People v. Duvall (1995) 9 Cal.4th 464, 475.) Petitioner's misconduct was not referred for prosecution. Nor does Petitioner state what prejudice he has suffered as a result of the hearing not being postponed." (See Resp't's Answer, Ex. 2.)
Petitioner then filed a habeas petition in the California Court of Appeal which raised similar arguments as in Petitioner's petition to the California Superior Court. The California Court of Appeal summarily denied the petition on June 21, 2007. (See Resp't's Answer, Ex. 4.)
Next, Petitioner filed a state habeas petition with the California Supreme Court. Petitioner's claims to the California Supreme Court included the following amongst others: (1) his due process rights were violated as he had "the right to cross-examine any and all witnesses whether for you or against you" and had "the right to compel unwilling witnesses to testify as in the right to cross examine your accuser" (Resp't's Answer, Ex. 5 at p. 16.); (2) his constitutional rights were violated when the SHO failed to provide Petitioner with the right to call witnesses and present documents at his disciplinary hearing; (2) his constitutional rights were violated when he was not given proper notice of the disciplinary hearing; and (3) his equal protection rights were violated when his co-combatant received a lesser punishment. On March 12, 2008, the California Supreme Court summarily denied the petition without discussion or citation. (See Resp't's Answer, Ex. 6.) Petitioner then filed another habeas petition with the California Supreme Court that was denied as successive on April 16, 2008. (See id.)
Petitioner then filed his federal habeas petition in May 2008. The Respondent moved to dismiss the federal habeas petition as untimely. In August 2009, it was determined ...