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Dennis C. Mulvey v. R. Barnes

February 3, 2012

DENNIS C. MULVEY, PETITIONER,
v.
R. BARNES, WARDEN, CALIFORNIA CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

MEMORANDUM DECISION

Dennis C. Mulvey, a state prisoner appearing pro se, filed a Petition for Habeas Corpus under 28 U.S.C. § 2254. Mulvey is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California Correctional Center. Respondent has answered. Mulvey has not replied.

I. BACKGROUND/PRIOR PROCEEDINGS

Following his conviction for Manslaughter with a gun enhancement in May 1996, Mulvey was sentenced by the Shasta County Superior Court to a determinate prison term of fifteen years. Mulvey does not contest his conviction or sentence in this proceeding.

Mulvey was charged in a Rules Violation Report ("RVR") of possession of a deadly weapon in violation of prison regulations.*fn1 In December 2006 following a prison disciplinary hearing before a Senior Hearing Officer ("SHO"), Mulvey was found guilty and assessed a 360- day forfeiture of good-time credit. Upon completion of the administrative appeals process,*fn2

Case 2:09-cv-00448-JKS Document 16 Filed 02/03/12 Page 2 of 13

Mulvey timely filed a petition for habeas relief in the Lassen County Superior Court, which denied his petition in an unreported, reasoned decision. The California Court of Appeal, Third Appellate District, summarily denied Mulvey's habeas petition without opinion or citation to authority in an unreported decision. The California Supreme Court also summarily denied Mulvey's habeas petition without opinion or citation to authority in an unreported decision on December 10, 2008. Mulvey timely filed his Petition for relief in this Court on February 11, 2009.*fn3

The facts underlying Mulvey's conviction as found by the SHO in the RVR:

Hearing testimony: MULVEY gave the following testimony in his defense: "On the IE report, Polan answers the questions for Harvey. Harvey knows about these things, because he orders the parts. The brass wasn't shinny. It looks like it had corrosion. I believe the weapon had been there for a long time. Vargas states in her report the top of the Hot Water Dispenser was riveted on. If you remove the rivet the whole thing comes a part. It must have been stored like that. If I had put the weapon in there it would have been a lot shinier and it would have looked newer. Officer Collier asked me to fix the dispenser. My work pass shows I was assigned to work in building 2. I never thought to inspect the thing; Voc staff always inspects all of the equipment going out to the yard. The Lieutenant that heard my 115 before had a predetermined judgment of guilty before he heard it."

Finding: Guilty of the Div. A-1 (8) offense POSSESSION OR MANUFACTURE OF A DEADLY WEAPON. This charge requires evidence the inmate was found in possession of something that qualifies as a deadly weapon or the inmate modified something into a deadly weapon. Deadly weapon means anything capable of serious or lethal injury. Possession includes both actual and constructive possession. Constructive possession means one person retains control or ownership while it is in the actual possession of another. Each inmate has an assigned area of responsibility and anything found within this area of responsibility is presumed to be in his possession. This finding is based upon the following preponderance of evidence:

A. The Rule Violation Report authored by Correctional Officer K. Vargas, which states in part: On 07/05/06 at approximately 1000 hours, inmate MULVEY tried to smuggle out an Inmate Manufactured Weapon in a hot water tank from Lassen Vocational Maintenance, Inmate MULVEY works as the lead plumber in Lassen Maintenance Plumbing Shop, position (PLM-L.001). Inmate MULVEY came to the Gate House to be processed out to Lassen Yard. He had a tool box and a cart with an old water Heater on it. While I was processing and searching the cart I removed the Hot Water Heater and asked MULVEY to remove the bottom plate. He tried to tell it was riveted and would not come off. His hands were shaking a little and he became nervous. I looked inside the unit and discovered a plastic bag rolled up inside. I put gloves on and removed the bag. It contained a 6" long brass rod, sharpened to a point on one end. I maintained sole possession of the evidence until I turned it over to I.S.U. staff.

B. The 837 Crime 1 Incident report authored by Correctional K. Vargas, (which provides a more detailed account of the incident) which states in part: I removed the Dispenser from the cart and asked MULVEY to remove the bottom plate so I could search inside the part. He told me it was riveted and would not come off. I again told him to remove the bottom plate that it was not riveted on. MULVEY'S hands were shaking a little as he removed the plate and he became nervous. He then handed me the Hot Water Dispenser. I put it on my desk and looked inside the unit for contraband. I saw a plastic bag rolled up inside the dispenser. I could not reach the plastic bag so I removed the upper plate with a screwdriver, by prying it back. I was then able to retrieve the plastic bag. I carefully opened the plastic bag, and there revealed an Inmate Manufactured Weapon. I measured the weapon with a ruler it was 6' long brass rod sharpened on one end. I maintained possession of the, and place [sic] it in to a sharps container and then into an evidence bag. I took the evidence to ISU where it was photographed and processed into evidence.

C. The four (4) photographs of the weapon that was removed from a Hot Water

Dispenser that was in MULVEY'S possession at the time of the incident.

D. The photograph of MULVEY'S Tools and Equipment list that shows he was assigned to take the Hot Water Tank to building 2.

E. The Hot Water Tank was assigned to Mulvey, and was in his assigned area. Constructive possession means one person retains control or ownership while it is in the actual possession of another. Each inmate has an assigned area of responsibility and anything found within this area of responsibility is presumed to be in his possession.

F. Subject failed to provide the SHO any compelling evidence or statements during the hearing that would mitigate the charges against him. The SHO elects to uphold the decision of the previous hearing. A finding of guilt is appropriate.*fn4

II. GROUNDS RAISED/DEFENSES

In his Petition Mulvey raises a single ground: that the evidence is insufficient to support his conviction. Respondent asserts no affirmative defense.*fn5 Mulvey also ...

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