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Eric Mitchell v. Gary Swarthout

January 11, 2013

ERIC MITCHELL, PETITIONER,
v.
GARY SWARTHOUT, RESPONDENT.



FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Therein, petitioner challenges his May 27, 2009 prison disciplinary conviction for possession of a camera cell phone and a resulting loss of 30 days of time credits. Petitioner seeks expungement of his disciplinary conviction from his central file. For the following reasons, and upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

I. Background

On May 23, 2009, Correctional Officer (C/O) J. H. Henderson wrote a rules violation report (Log. No. S4-09-05-0332) (hereinafter "RVR") charging petitioner with "poss. of a camera cellphone," in violation of 15 California Code of Regulations § 3006(c)(19). (Doc. No. 1 (Pet.) at 39.) Therein C/O Henderson alleged as follows:

On 05-22-09, at approximately 1425 hours, while assigned to Building 24 as the Housing Officer, I conducted a bed area search of Inmate MITCHELL (E-99956, 24-25OU). Prior to the search MITCHELL was standing at his bed area cooking. I ordered him to submit to a clothed body search which he complied. The search resulted in negative results. The search of his locker resulted in the discovery of (1) Motorola Camera cellphone located on the top shelf about midway. I identified MITCHELL by his State issued ID. MITCHELL said that he uses the upper locker, which is consistent with him being the owner of the phone. On white correction tape I wrote J.H. Henderson, May 22, 09, MITCHELL, E-99956, and attached it to the phone. I then placed the phone into evidence locker #22. This concludes my involvement in this matter.

This subject is not an inmate participant in the Mental Health Services Delivery System and is aware of this report. (Id.) The disciplinary charge against petitioner was classified as a serious Division F offense. (Id.)

On May 27, 2009, the disciplinary hearing on the RVR commenced. (Id. at 41.) At that hearing petitioner acknowledged that he had received a copy of the RVR more than 24 hours in advance of the hearing, and stated that he understood these documents and the charges against him. (Id.) Petitioner requested the assignment of an investigative employee. His request was denied by the Senior Hearing Officer (SHO) because "the complexity of the issues does not require further investigation," and petitioner's housing status made it likely that he could collect the evidence necessary to present an adequate defense. (Id.) Petitioner confirmed that he understood the SHO's decision in this regard and requested to continue with the hearing notwithstanding that decision. (Id.) Petitioner waived the assistance of a Staff Assistant and none was provided. (Id.)

Petitioner entered a plea of "not guilty" to the charge and stated: "My bunkie told me that the cell phone was his and that he put it in my locker when he saw the Officer approach. I'm not guilty of possession of anything." (Id.) at 42.) The SHO explained petitioner's rights with regard to the calling of witnesses at the hearing. (Id.) Petitioner stated that C/O Henderson would be an "adverse witness." (Id.) Petitioner requested that inmate Ashley testify for the defense, and stated that Ashley would testify "the phone is his and that he placed it into my locker when he saw the Officer approaching." (Id.)

Inmate Ashley was called as a witness at the disciplinary hearing and testified that the cell phone in question belonged to him and that he had placed it in petitioner's locker after other inmates yelled out a warning that a correctional officer was approaching. (Id.) C/O Henderson testified that he did not see any inmate, including inmate Ashley, put anything in petitioner's locker, and he did not see any inmate approach the locker. (Id.) When asked why he had searched petitioner's locker, C/O Henderson stated: "Because [petitioner] was cooking. I felt that if he had contraband, it would be in his locker." (Id.)

The SHO found petitioner guilty of the prison rules violation. (Id. at 43.) He made the following findings in support of his decision:

The SHO is convinced that the phone was already in MITCHELL's locker making MITCHELL in possession of the cell phone through Constructive Possession . . . . This offense requires only proof that the item was contraband. This item qualifies as contraband as Inmate MITCHELL was in possession of an item, which is not authorized.

(Id.) According to the report of the hearing, petitioner's disciplinary conviction was based on the statements of C/O Henderson in the RVR and Henderson's testimony at the disciplinary hearing that he did not see any inmate place anything in petitioner's locker as he approached the cell. (Id.) Petitioner was assessed a 30-day loss of work time credits, a 90-day suspension of Friday visiting privileges, and reduction to privilege group "C" for 90 days. (Id.)

After exhausting the administrative appeals process, petitioner challenged his disciplinary conviction in a petition for writ of habeas corpus filed in the Solano County Superior Court. (Id. at 63.) That court rejected petitioner's claims, ruling as follows:

On December 8, 2009, Petitioner Eric Mitchell filed this petition for writ of habeas corpus. Petitioner challenges the outcome of his disciplinary hearing, in which he was found guilty of possessing contraband.

The decision of the hearing officer is supported by some evidence in the record. (Superintendent v. Hill (1985) 472 U.S. 445, 447; In re Zepeda (2006) 141 Cal. App.4th 1493, 1497.) Officer Henderson found a cell phone in Petitioner's locker and did not see inmate Ashley or Petitioner move towards or place anything in the locker while he was approaching. This is sufficient evidence of possession. In reviewing disciplinary decisions, courts do not examine the entire record, evaluate the credibility of witnesses, or reweigh the evidence. (Hill, 472 U.S. at p. 455.)

Furthermore, case law clearly recognizes constructive possession as a type of possession in contraband cases. (See, e.g., Zepeda, 141 Cal. App.4th 1493.) Constructive possession is simply one way of proving the possession element of the offense of possession of contraband. (See, e.g., People v. Williams (1971) 5 Cal.3d 211, 215; People v. Francis (1969) 71 Cal.2d 66, 71.) It is not a separate offense or regulation that needs to be approved through the legislative or administrative process; rather, it is a judicially created theory of liability for the offense of possession of contraband. (Williams, 5 Cal.3d at p. 215; Francis, 71 Cal.2d at p. 71.)

The petition for writ of habeas corpus is DENIED. (Id. at 63-64.)

Petitioner subsequently filed a petition for writ of habeas corpus in the California Court of Appeal for the First Appellate District, which was summarily denied by order dated May 27, 2010. (Id. at 67.) Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court, which was also summarily denied. (Id. at 69.)

On December 10, 2010, petitioner commenced this action by filing a federal petition for writ of habeas corpus in this court.

II. Standards of Review Applicable to Habeas Corpus Claims

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. ยง 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); ...


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