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Antonio Barboza, Jr. v. R. Hill

December 7, 2011

ANTONIO BARBOZA, JR. PETITIONER,
v.
R. HILL, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding in propria persona with an application 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 June 13, 2007, while he was imprisoned at Folsom State Prison. Petitioner seeks relief on due process grounds, claiming that the evidence was insufficient to support his conviction for distribution of a controlled substance (heroin). Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

I. Background

On June 13, 2007, Correctional Officer A.S. Guzman wrote a rules violation report charging petitioner with "distribution of a controlled substance (heroin)," in violation of Cal. Code Regs. tit. 15, § 3016(c), a serious Division A-2 offense. Dckt. No. 11-1 at 12. Officer Guzman alleged that:

On Wednesday, June 13, 2007, at approximately 0900 hours, Investigative Services Unit (ISU) received a Controlled Substance Analysis Report from the Sacramento County Laboratory of Forensic Services containing the following results: The following test was conducted; Froehide, gas chromatography/mass spectrometry, Marquis, Mecke, the sample contained heroin (discetylmorphine), net weight 2.77 grams. This test was initiated based on the following: On Thursday, May 17, 2007, at approximately 1040 hours, Investigative Services Unit (ISU), at Folsom State Prison (FSP), reported to the Triage Treatment Area, (TTA), in response to the possible drug overdose of an inmate. Upon arriving at the TTA, I identified the inmate as BARBOZA P-29628, housed in Cell 5/AA1-36. I immediately reported to inmate BARBOZA's assigned cell and conducted a cell search.

During the course of the search, I discovered on the shelf of a locker, a brown substance, I suspected to be heroin, along with a plastic spoon, which contained a small piece of cotton, which appeared to be stained with heroin. The locker where I discovered the heroin, contained Inmate BARBOZA's personal property, which included letters addressed to BARBOZA as well as a package of medication with Inmate BARBOZA's name and CDCR number written on it. I photographed the suspected heroin, along with the spoon and the medication package, showing Inmate BARBOZA's name. I placed the contraband into a latex glove and secured it in my pocket. I completed the search, producing no further contraband. At approximately 1300 hours, I reported to the ISU Office to test the suspected heroin. The suspected heroin weighed 3.0 grams inclusive with packaging. Utilizing the Narcotics Identification Kit (NIK) test L, I tested a small amount of the suspected heroin, which produced a green color change indicating a presumptive positive result for heroin. This amount of heroin is consistent with distribution of a controlled substance. I photographed the heroin and processed it along with the photographs into evidence per institutional procedures. I secured the evidence into ISU evidence locker #3. Inmate BARBOZA is not a participant in the Mental Health Program at Folsom State Prison. Inmate BARBOZA's TABE score is above 4.0.

Id. at 12-13. (emphasis in original.)

The disciplinary hearing on the rules violation report commenced on September 20, 2007. Id. at 14. Petitioner appeared before the Senior Hearing Officer, stated he was in good health, acknowledged receipt of all reports to be used as evidence, and stated he was ready to proceed with the hearing. Id. The charges against petitioner were read to him and he acknowledged understanding those charges. Id. Petitioner pled not guilty and declined to make a statement. Id. He did not call any witnesses. Id. However, in response to questions posed by the Senior Hearing Officer, petitioner admitted that he overdosed on illegal narcotics and that the narcotics in the cell belonged to him. Id. However, he stated the narcotics were "for personal use." Id.

Petitioner was found guilty of the charged offense of distribution of heroin. Id. The decision was based on the rules violation report, petitioner's partial admission to the charge at the disciplinary hearing, and the contents of a supplemental report. Id. The supplemental report contained answers to questions posed to Correctional Officer Guzman, as follows:

a) Q1: What is your professional experience? A1: 12 years as an Officer at FSP. 3 years as an ISU Officer, during which time I received training in Drug Interdiction. I have investigated numerous drug cases, interviewed numerous inmates regarding narcotic activities, including but not limited to usable amounts, prices in prison, and common methods of trafficking.

b) Q2: In your experience as a Drug Interdiction Officer, what determines the charge of possession versus distribution? A2: A common amount for an inmate to purchase for personal consumption would be a small amount such as a $50.00 paper or piece.

c) Q3: What is the typical amount an individual inmate would have in their possession for personal use? A3: The amount Inmate BARBOZA was caught in possession was worth approximately $600.00 (3 grams) it could be cut and sold for much more.

Id. at 15. As a result of his conviction, petitioner was assessed a 180 day credit forfeiture and was placed on mandatory drug testing. Id. at 16.

On November 19, 2008, petitioner challenged his disciplinary conviction in a petition for writ of habeas corpus filed in the California Superior Court. Dckt. 11-1. The Superior Court denied the petition, reasoning as follows:

Petitioner is challenging the outcome of disciplinary proceedings that took place with respect to 115 Rules Violation Report (RVR) log number 507-06-002. Specifically, he contends that the evidence was insufficient to support a finding of guilt for the charge of distribution of a controlled substance (Heroin) and ...


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