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Richard Lee Kirk v. R.A. Barnes

August 8, 2011

RICHARD LEE KIRK, PETITIONER,
v.
R.A. BARNES, RESPONDENT.



FINDINGS & RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has been in the custody of the California Department of Corrections and Rehabilitation since 1986 following a conviction for second-degree murder and forgery, for which he was sentenced to a term of life with the possibility of parole. See Answer, Ex. 1. In the petition pending before the court, petitioner challenges a September 4, 2008 prison disciplinary conviction for possession of a controlled substance. Petitioner was assessed, inter alia, a 130 day loss of credit. See id., Ex. 2. 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 July 5, 2008, a correctional officer ("CO") observed petitioner and another inmate, Rash, conversing outside of petitioner's cell. Answer, Ex. 2 at 1. The CO observed petitioner hand Rash an item, who then placed said item in his shorts and walked away. Id. The CO immediately subjected Rash to a clothed body search, upon which he found hidden inside Rash's shorts a small plastic bag containing drug paraphernalia. Id. Both petitioner and Rash were placed in handcuffs. Id.

On August 26, 2008, a Rules Violation Report issued charging petitioner with possession of a controlled substance. Answer, Ex. 2 at 3.

On September 4, 2008, petitioner was found guilty of possession of a controlled substance following a disciplinary hearing wherein petitioner, the arresting CO and a Senior Hearing Officer were present. See Answer, Ex. 2 at 6. Although petitioner requested the presence of Rash, the Senior Hearing Officer stipulated to the contents of Rash's statement -- namely, that petitioner did not pass any contraband to Rash. Id. Upon consideration of the CO's testimony and the contents of the disciplinary report, as well as the lack of incriminating evidence in petitioner's cell or on his person, and petitioner's medical clearance showing no signs of a controlled substance in his system, petitioner was found guilty and assessed a 130-day loss of credit. Id. Petitioner was also assessed a 90-day loss of visits followed by 90-days of visits with no contact. Id. at 6-7.

On March 3, 2009, petitioner filed a petition for writ of habeas corpus in the Lassen County Superior Court challenging the sufficiency of the evidence and the failure of Senior Hearing Officer to call Rash as a witness. See Answer, Ex. 3.

On March 11, 2009, petitioner's petition for writ of habeas corpus was denied. Answer, Ex. 4.

On April 2, 2009, petitioner appealed to the California Court of Appeal, Third Appellate District. Answer, Ex. 5.

On April 9, 2009, the petition was summarily denied by the state appellate court. Answer, Ex. 6.

On May 4, 2009, petitioner appealed to the California Supreme Court, which summarily denied review on June 10, 2009. Answer, Exs. 7-8.

On October 1, 2009, petitioner filed the instant petition. On June 3, 2011, respondent filed an answer. On July 18, 2011, petitioner filed a traverse.

DISCUSSION

1. Standards

Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state ...


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