FINDINGS AND RECOMMENDATIONS
Petitioner is a state prison inmate proceeding pro se with a petition for a writ of habeas corpus. He challenges the loss of good time credits stemming from a disciplinary proceeding and raises four grounds: (1) the hearing officer improperly applied the "some evidence" standard for disciplinary proceedings; (2) certain regulations establish a presumption of guilt, in violation of petitioner's due process rights; (3) correctional authorities failed to prove petitioner's guilt by a preponderance of the evidence; and (4) correctional authorities violated petitioner's due process rights by failing to consider the testimony of a material witness.
Respondent has filed a motion to dismiss on the ground that two of petitioner's claims are not exhausted and that the petition, containing both exhausted and unexhausted claims, must be dismissed.
On December 10, 2007, petitioner was found guilty of possessing a cell phone and was assessed a loss of thirty days of good time credit, among other penalties. Petition (Petn.) at 25.*fn1
On January 11, 2008, petitioner filed an administrative appeal, alleging that the disciplinary finding was not supported by the necessary "some evidence" of guilt and that the hearing officer improperly restricted the questions petitioner wished to ask the officer who found the cell phone. Id. at 43; Motion To Dismiss (MTD), Docket No. 9-6 at 7. The informal and first levels of review for this grievance were bypassed and it was considered in the first instance at the second level of review. Docket No. 9-6 at 8.
While the grievance was pending at the second level, Inmate Hodges signed a declaration taking sole responsibility for the cell phone, charger and earpiece, which he claimed he stashed near petitioner's bunk when it became clear the dormitory was to be searched. Petn., at 33. This declaration, dated April 17, 2008, apparently was not provided to the second level reviewer. However, in the second level denial dated April 25, 2008, the appeals coordinator recorded that during a telephonic interview petitioner mentioned Hodges' claim of ownership. The appeals coordinator also noted that when contacted by telephone, "Inmate Hodges denied knowledge of the cell phone and explained he never lived in your building or had any acquaintance with you." Docket No. 9-6 at 13.*fn2
Petitioner pursued his administrative appeal to the Director's Level, explaining on the grievance form that he "stated to B. Torres [the interviewer]. . . that an inmate ROBERT HODGE, V-73556 14-E-3Upper admitted ownership of the phone in the presence of SHO Lt. Parks [the hearing officer] and appellant." Docket No. 9-6 at 8.
Petitioner did not prevail at the third level of administrative review: without mentioning Inmate Hodge's claim of ownership, the reviewer concluded that "the evidence satisfies the preponderance threshold required to find guilt for the serious RVR. The appellant was provided appropriate due process and administrative protections in the adjudication of the RVR and the finding the disposition are consistent with regulations." Petn. at 40.
Petitioner turned to the California Courts, starting in the Solano County Superior Court with a petition which raised the four grounds currently pending in this court. Docket No. 9-1 at 6-23. That court denied the petition:
[Petitioner] claims that the CDC did not properly apply the preponderance of the evidence standard as required by 15 CCR § 3320(1) in finding him guilty and his guilty finding is not supported by some evidence as required by law. He also argues that he was denied a witness, who did not come forward until some four months after his guilt finding. Lastly, he makes an argument that the CDC regulation defining contraband. . . is unconstitutional because it permits an improper inference of one fact from another fact.
Regarding his evidentiary claim, that his guilty finding is not supported by some evidence and that the CDC did not properly apply the preponderance of the evidence standard, the Court's review is very limited. The Court must uphold the guilty finding so long as some evidence supports it. . . . Here, the guilty finding is supported by the fact that the cell phone was found under Petitioner's bunk and near a box containing petitioner's property. Regarding Petitioner's other two issues, Petitioner has not shown that he raised those issues in his CDC 602 appeal. So, Petitioner has not exhausted administrative remedies. "It is well settled as a general proposition that a litigant will not be afforded relief in the courts unless and until he has exhausted available administrative remedies. This general rule applies to applications for habeas corpus relief." (In re Thompson (1985) 172 Cal.App.3d 256, 262.)
Petitioner filed habeas petitions in the Court of Appeal and the Supreme Court, both of which denied relief without providing any reasoning for their decisions. Docket No. 9-2 at 2; 9-8 at 2-3.
II. The Exhaustion Of State Remedies
The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). The United States Supreme Court has held that a federal district court may not entertain a petition for habeas corpus unless the petitioner has exhausted state remedies with respect to each of the claims raised. Rose v. Lundy, 455 U.S. 509 ...