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Gerald Jerry Payne v. Timothy Virga

February 17, 2012

GERALD JERRY PAYNE, PETITIONER,
v.
TIMOTHY VIRGA, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner, Gerald Jerry Payne, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. With this petition, Petitioner does not challenge his underlying conviction and sentence. Rather, he challenges the results of the January 6, 2009 prison disciplinary decision finding him guilty of a serious rules violation and assessing him a forfeiture of thirty days sentencing credit.

II. ISSUE PRESENTED

Petitioner presents a single issue in his pending federal petition. For a myriad of reasons, he claims that his federal right to due process of law was violated when he was found guilty of a serious rules violation and assessed a forfeiture of thirty days sentencing credit following his January 6, 2009 prison disciplinary rehearing.

III. BACKGROUND

On October 25, 2008, Correctional Officer M. Rupert authored a CDC Form 115 Rules Violation Report ("RVR")*fn1 charging Petitioner with conduct that could lead to violence, in violation of section 3005(a) of the California Code of Regulations, for an incident described in the report as follows:

On 10-25-08 at approximately 1620 hours, while performing my duties as an FA7 Block Floor Officer, I was passing out dinner when I came upon cell FA7-213 jointly occupied by inmates PAYNE (V-63408) and MERCADO (V-68053). I handed MERCADO his tray of food and then while waiting for a tray for PAYNE, PAYNE stated, "Hey Ruper, that shit isn't going to fly. Falsifying reports to get me. We'll see who gets it. I talked to my wife today and told her to investigate you on the outside." At that point I felt that the best thing for me to do was to walk away. As I turned, PAYNE stated, "Yeah, that's right, walk away punk." After I finished passing out dinner I informed EOP Sergeant, T.A. Hronek, and informed her of the situation. Please note on the following date, Monday October 20[,] 2008, PAYNE received a CDC-115 from myself for disrespecting staff where he stated[,] among other things, "You will learn to respect me one way or another, punk bitch." PAYNE is a participant in the Mental Health Services Delivery System at the EOP level of care. PAYNE reads above a 4.0 reading level.

Ans. Ex. 7.

Petitioner's original prison disciplinary hearing on the RVR was held on November 28, 2008. Due to alleged due process violations committed during this hearing, the RVR was ordered reissued on December 22, 2008 so that it could be reheard. The rehearing was held on January 6, 2009, and the record reflects that Petitioner entered a plea of not guilty and did not request any witnesses be present on the hearing on his behalf. Following the rehearing, Petitioner was found guilty of the alleged violation of section 3005(a) as described in the October 25, 2008 RVR and, accordingly, was assessed a forfeiture of thirty days sentencing credit.

After exhausting his administrative appellate remedies unsuccessfully, Petitioner challenged the outcome of the disciplinary proceeding by seeking habeas corpus relief in California state courts. The Sacramento County Superior Court denied relief on September 2, 2009 with a brief, but reasoned, opinion. Both the California Court of Appeal, Third Appellate District, and the California Supreme Court denied relief without comment on October 1, 2009 and December 2, 2009, respectively. Petitioner filed the instant federal petition for writ of habeas corpus on October 1, 2010. Respondent filed its answer on April 8, 2011, and Petitioner filed his traverse on April 19, 2011.

IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW

This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence ...


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