FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a prison disciplinary conviction that resulted from a rules violation report issued against him on March 26, 2004, while he was imprisoned at California State Prison, Solano. Petitioner seeks relief on due process grounds, claiming that (1) the investigative employee assigned to assist him in preparing for his disciplinary hearing failed to gather evidence and conduct interviews; (2) he was not given adequate notice of the charge against him because the notice did not include the dates on which the misconduct was alleged to have occurred; and (3) he was not allowed to present witnesses at his disciplinary hearing. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
On March 31, 2004, Correctional Officer ("C/O") R. Edwards wrote a
rules violation report ("RVR") charging petitioner with "stalking,"
later amended to "harassment," in violation of Cal. Code Regs. tit.
15, § 3005(a).*fn1 Answer, Ex. 2 at 5, 9.*fn2
C/O Edwards alleged that:
On 3-26-04, at approximately 1230 hours, while conducting my duties as a Control Booth Officer in Building #3, Inmate Hardney, D-00599, on several occasions has been very over familiar with me. Inmate Hardney will constantly approach the control booth during my shift to try to an [sic] start personal conversation with stating, "I want to sit and speak with you. Could I get just a few minutes of your time so I could try and figure you out?" He would also give unwanted compliments to me in hopes of gaining what he thought would gain him "special treatment" in the building so he may stay out.
Inmate Hardney was given a direct order to stay away from the control booth and was warned that his constant interruptions with personal questions needed to stop. I told Inmate Hardney not to speak to me unless it had to deal with CDC. When Inmate Hardney does not get his way with privileges, he becomes very angry and begins to express this by being loud, trying to intimidate me. Because this form of intimidation did not work with me, Inmate Hardney continued with his over familiar behavior which I believe led to stalking. Direct orders were given to Inmate Hardney to get away from the control booth and not speak to me, on several occasions. Inmate Hardney would sit on the dayroom floor in building #3, in an area where he had view of me in the control booth. Inmate Hardney would sit in different areas on the dayroom floor, depending on where I was sitting in the control booth, to watch me. When leaving Building #3 at the completion of my shift, Inmate Hardney would always be waiting at the visiting yard exit door. Inmate Hardney always has a comment or question for me just to receive my attention. This over familiar behavior and constantly being in an area where I am scheduled to be, has made me feel extremely uncomfortable in my work environment.
On March 31, 2004, the RVR was issued to petitioner. Id. at 5. V.A. Motschenbacher classified the offense as "serious" and referred the RVR to a senior hearing officer ("SHO") for a hearing. Id.
Petitioner was assigned an investigative employee, C/O Marshall, pursuant to Cal. Code Regs. tit. 15, § 3315(d)(1)(A), because his placement in administrative segregation made it unlikely that he could collect and present needed evidence.*fn3 Id. at 6. C/O Marshall reported his interviews with petitioner and C/O Edwards, as well as three individuals identified by petitioner as witnesses: C/O R. Stewart, Sergeant J. Paradis, and Sergeant J. Lee. Id. at 11-12, 14. As reported by C/O Marshall, petitioner told him that Edwards had a history of fabricating reports of inmate misconduct. Id. at 11. In late 2003, petitioner filed a staff complaint against Edwards "for harassing and singling me out for disciplinary reasons." Id. Sergeant Paradis interviewed petitioner about that complaint, which petitioner ultimately decided to withdraw "to keep peace" with Edwards. Id. Shortly thereafter, according to petitioner, Edwards fabricated a report that petitioner had refused to "lock up." Id. Since filing the staff complaint against Edwards, petitioner had not "said 3 words" to Edwards and stayed at least 10 feet away from her. Id. He had lost dayroom privileges for 60 days on February 28, 2004, "so how could I be in the dayroom leering and talking to Edwards?" Id. Petitioner had told Sergeant Lee in January 2004 that he might have a problem with Edwards, that Edwards was "on" him. Id. Lee told petitioner, in front of Lt. Nielsen and C/O Spencer, that he remembered petitioner telling him that Edwards had been harassing him. Id. Petitioner gave Marshall 26 questions to ask Edwards, five to ask Stewart, six for Lee, five for Nielsen, and ten for Paradis. Id.
Marshall asked Edwards to review her RVR and "add any pertinent facts that may assist the SHO." Id. at 12. Edwards said, "Everyday while walking across the yard to go home after work, Inmate Hardney would wait at the Education area and he would try to engage me in conversation or make a statement. This over familiar behavior has made me feel extremely uncomfortable in my work environment." Id.
Marshall asked Stewart if he recalled whether petitioner had filed a staff complaint against Edwards for singling him out for harassment. Id. Stewart did not recall that. Id. He remembered that petitioner had lost his dayroom privileges from February 29, 2009 to April 29, 2009, but did not know why. Id. Stewart told Marshall that petitioner had frequently used the dayroom before losing his privileges and that, although Stewart enforced his loss of privileges, petitioner "continually broke the restrictions." Id. Stewart did not recall whether petitioner was in the dayroom on March 26, 2004 until 12:30 p.m. or later (Edwards had specified on the rules violation report that petitioner harassed her on March 26, 2004 at 12:30 p.m.).*fn4 Id.
Paradis told Marshall that she remembered interviewing petitioner regarding the staff complaint he had filed against Edwards. Id. Petitioner told Paradis that he did not want to make trouble for Edwards or create a problem for himself, so he would stay away from Edwards. Id.
Lee told Marshall that, while being transported to administrative segregation on March 26, 2004, petitioner asked him whether he remembered an occasion in early 2004 when petitioner complained to him, in the presence of Nielsen and Spencer, of Edwards harassing him. Id. at 14. Lee remembered the incident, which he had responded to by asking Edwards about petitioner. Id. No other inmates had complained about Edwards. Id.
The disciplinary hearing on the rules violation report was held on April 30, 2004. Id. at 6. Petitioner had requested Edwards, Stewart, Lee, Paradis, and Nielsen to appear as witnesses. Id. at 14. However, the report of the hearing states, "Inmate Hardney rescinded his request for the witnesses based on his acceptance of the witness's [sic] testimony as written on the Investigative Employee Report, except the inmate requested Officer Edwards to be present at the RVR hearing, which was granted." Id. at 6. Petitioner pleaded not guilty to the charge and stated that he had made a special effort to stay away from Edwards since January 2004, after filing the staff complaint against her in December 2003. Id. Petitioner further stated that "Officer Edwards never gave specific dates or times these events occurred in the [RVR]." Id.
Other evidence adduced at the hearing consisted of the RVR, Marshall's report, a report authored by Nielsen, and Edwards's testimony. Id. at 7-8. Neilsen's report relayed,
Officer Edwards stated on several occasions Inmate Hardney has attempted to engage her in personal conversation. Officer Edwards states when Inmate Hardney sits in the day room he leers at her constantly as she performs her duties and that makes her feel very uncomfortable. Officer Edwards stated when she leaves her building at the end of the day, Inmate Hardney is always near the exit door and attempts to engage her in conversation. Officer Edwards stated due to Inmate Hardney['s] attempts to be over familiar with her she has told him not to speak to her unless it is necessary. Officer Edwards stated she feels that Inmate Hardney has been stalking her. Id. at 7.
Edwards testified at the disciplinary hearing that she had reported the incidents in which petitioner had watched her from the dayroom floor to her supervisor, Paradis. Id. at 8. Petitioner had said to her, "I want to get to know you," "I really appreciate you," "I want to figure you out," and "We can have some conversation together." Id. After he made those comments, Edwards told him that they were unwanted and inappropriate. Id. When petitioner waited for her near the entrance to the facility as she exited and made comments, Edwards noted the occurrences on petitioner's bed card and reported them to Paradis. Id.
Lieutenant Chirila acted as the Senior Hearing Officer at the hearing. Id. at 5-8. He found petitioner guilty and imposed a forfeiture of 30 days worktime credits. Id. at 8. Petitioner sought review of the guilty finding through an administrative appeal, which was denied at all levels. Answer, Ex. 4, at 33-34 & Ex. 7 at 118-19. Petitioner then sought a writ of habeas corpus from the Solano County Superior Court, which was denied. Answer, Exs. 7, 8. The California Court of Appeal and Supreme Court similarly denied relief. Answer, Exs. 5, 6.
II. New Argument Raised in Response to Order for Additional Briefing
In his response to this court's December 7, 2010 order for supplemental briefing, respondent argues, for the first time, that petitioner's claims are not cognizable in a habeas corpus proceeding. Dckt. No. 35 at 7-8. Specifically, respondent contends that petitioner is not "in custody" under the habeas statute because success on his claims would not necessarily impact the duration of his sentence. Id. See 28 U.S.C. § 2254(a) ("The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody . . .); Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) ("The "essence of habeas corpus is an attack by a person in custody upon the legality of that custody . . .).
This court will not address respondent's argument raised for the first time in his supplemental brief but will assume petitioner's claims are cognizable and address them on the merits. In its order for supplemental briefing, the court limited the requested briefing to the merits of petitioner's claim that prison authorities violated his right to due process when they refused to allow him to call witnesses at his disciplinary hearing. Respondent's argument that the petition should be dismissed is not responsive to the court's order. Further, Rule 5 of the Rules Governing Section 2254 Cases provides that the Answer must address whether any claim raised in the petition is barred. Respondent did not raise this argument in the Answer. Finally, arguments and claims may not be raised for the first time in a reply or supplemental brief. Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (refusing to reach argument raised for the first time in reply brief that petitioner's claim was not cognizable on federal habeas corpus); United States v. Gigante, 39 F.3d 42, 50 n.2 (2d Cir. 1994) ("These arguments were raised for the first time in defendants' reply brief. Arguments may not be made for the first time in a reply brief."), vacated on other grounds and superseded in part on denial of reh'g, 94 F.3d 53 (2d Cir. 1996); Keefe v. Shalala, 71 F.3d 1060, 1066 n. 2 (2d Cir. 1995) ("We will not consider arguments raised for the first time in a reply brief."); Highsmith v. Chrysler Credit Corp., 18 F.3d 434, 439 (7th Cir. 1994) ("In most circumstances, a litigant who fails to raise an argument until his reply brief will be deemed to have waived that argument.") (citing ...