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Eddie Perry v. G. Swarthout

March 2, 2012

EDDIE PERRY PLAINTIFF,
v.
G. SWARTHOUT DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Introduction and Summary

Petitioner, a state prisoner serving a 25-life term, does not contest that he was in possession of marijuana in prison. He does not contest the court verdict that he be found criminally liable for the marijuana possession, nor does he challenge the one year, consecutive (to his life term) punishment imposed by the court. He does challenge the use of the criminal conviction in the prison disciplinary process leading to an administrative conviction of distribution or trafficking illegal substances in prison which resulted in an additional "punishment" of 180 days credit loss. He does not challenge his administrative conviction on double jeopardy grounds, but solely on the manner in which the court's verdict was allegedly utilized in his disciplinary proceeding and thereafter in his appeals.

Respondent meets the liberty interest issue raised by petitioner by asserting that federal habeas corpus does not lie to correct asserted errors in state law. For the reasons that follow, the undersigned agrees and supplements that finding. The petition should be denied. Facts

After engaging in a prison visit, petitioner was searched. Just prior to or during the search, the officer noticed that petitioner had tossed an object to the floor. The object was retrieved, and later proved to contain 18.4 grams of marijuana. The matter was referred to the District Attorney who brought charges against petitioner in Superior Court. After a court trial, petitioner was found guilty of a violation of Cal. Penal Code § 4573.6 (possession of controlled substance in prison). Judgment was entered on August 27, 2008. He was sentenced to a one year term consecutive to his indeterminate life sentence.

Petitioner's administrative proceedings had been suspended pending outcome of the criminal case, but were reactivated after his conviction was entered. In the administrative proceedings, petitioner was charged with a violation of introduction of a controlled substance into the institution (prison) for distribution, in violation of Title 15 CCR 3016(c). On September 17, 2008 (signed on September 17), petitioner was found guilty, and lost 180 days of time credit. In the written findings, the hearing officer considered anew all the evidence that had been administratively procured, and in the last paragraph of the evidence summation, noted that petitioner had been found guilty of possession in prison by the Superior Court.

An administrative appeal was taken with petitioner's issue being that the administrative charge should not have been a distribution charge; rather, the prison was limited to the charge set forth in the court verdict -- a lesser possession charge, see 15 CCR 3316(c)(3). Clearly out of his element, the Warden reasoned:

Review of CCR 3316(c)(3) reflects that CDCR can find you guilty as charged [administratively], even if the court finds you guilty of a lesser charge, when the court verdict is not based on a guilty finding by a jury trial. In your case you were not found guilty by a jury trial or by plea agreement. You were found guilty by court decision, which is equivalent to a negotiated settlement....Therefore, the SHO appropriately found you guilty of the charge Introduction of Controlled Substance into Institution for Distribution."

Second Level Appeal Response, Petition at 20 (electronic pagination).*fn1

Despite the doubtful equation of a court trial to a negotiated settlement, the Third Level Appeal, (Director's Level) "reaffirm[ed] the institution's examination and conclusions as addressed within the SLR." Director's Level Decision, Petition at 16 (electronic pagination).

Petitioner thereupon started his state habeas rounds, and received an explained decision from the Superior Court:

Petitioner misunderstands the meaning of Section 3316(c)(3). In petitioner's case, both the court and the CDC found possession. At the disciplinary hearing, the CDC accepted the Court's finding of possession, and it went one element further finding the intent to distribute as well. The CDC would be prohibited from disciplining Petitioner for possession for distribution only if the Court found petitioner not guilty of possession for distribution after trial.

Order, Petition at 11-12 (electronic pagination)

Habeas petitions at the Court of Appeal and Supreme Court levels were denied without comment. Issues Title 15 ...


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