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Daniel K. Chestang v. Swarthout

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


November 7, 2012

DANIEL K. CHESTANG, PETITIONER,
v.
SWARTHOUT, RESPONDENT.

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

ORDER

Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and proceeds in forma pauperis. This action is before the undersigned pursuant to petitioner's consent. Doc. 4. Petitioner's original habeas petition was denied with leave to amend and petitioner has filed an amended petition. However, the amended petition is substantially similar to the original petition and contains the same deficiencies.

Petitioner challenges a prison disciplinary finding that resulted in the loss of credits. On December 3, 2007, a cell phone was found hidden inside petitioner's typewriter, and petitioner was punished nearly three years later on September 5, 2010, a cell phone charger was found hidden in petitioner's typewriter and petitioner was assessed a loss of credits.*fn1

Petitioner argues that these two punishments were a violation of Double Jeopardy because the cell phone charger found in 2010 was part of a set with the cell phone found in 2007, and the phone cannot operate without being charged by the charger.*fn2

The Double Jeopardy Clause of the Fifth Amendment guarantees that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. Amend. V. The Supreme Court in Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056 (1969), held that the Double Jeopardy Clause's protections were applicable to the states through the Fourteenth Amendment. The guarantee against double jeopardy protects against (1) a second prosecution for the same offense after acquittal or conviction, and (2) multiple punishments for the same offense. Witte v. United States, 515 U.S. 389, 395--96, 115 S.Ct. 2199 (1995).

Proceeding pursuant to Fed. R. Civ. P. Rules on § 2254 Habeas Corpus, Rule 4 (summary dismissal), petitioner's argument fails to set forth a viable habeas claim. Petitioner was not prosecuted or punished for the same offense. There were two distinct factual scenarios and offenses that occurred nearly three years apart and petitioner was not put in jeopardy for the same offense. Being found in possession of contraband that may have been related to other contraband found several years earlier will not state a Double Jeopardy claim. Nor does it matter that petitioner happened to hide the items in the same place. Ultimately, and as found by the CDCR and state court, that it is unlawful to be in possession of a cell phone charger per se, petitioner committed two separate offenses and was properly punished.*fn3 As the state court stated in denying petitioner's habeas petition, "[h]is decision to keep and hide the cell phone charger-a separate contraband item from the cell phone itself-constitutes a new violation of prison rule." Amended Petition at 35.

In accordance with the above, IT IS HEREBY ORDERED that:

1. The petition is denied for the reasons discussed above;

2. A certificate of appealability is not issued in this action.


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