The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Margaret M. Morrow, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on November 2, 2012, consisting of a form Petition to which is attached a handwritten petition and a memorandum of points and authorities ("Pet. Mem."). The Petition challenges Petitioner's July 25, 2010 prison disciplinary conviction for "battery on inmate during riot with weapon causing serious injury." Respondent filed an Answer on December 28, 2012. Petitioner filed a Reply on February 22, 2013.
On June 9, 2010, Correctional Officer Becerra authored a Rules Violation Report charging Petitioner with "battery on inmate during riot with weapon causing serious injury," allegedly occurring on May 27, 2010 (Petition, first exhibit; Respondent's Lodged Exhibit 2). After a hearing on July 25, 2010, a hearing officer found Petitioner guilty and assessed a 360-day credit loss and ten days' loss of yard privileges (Petition, first exhibit; Respondent's Lodged Exhibit 2).
Petitioner submitted an administrative appeal, which was denied at the Director's Level on March 11, 2011 (Respondent's Lodged Exhibit 3). Petitioner filed a habeas corpus petition in the Kings County Superior Court on October 4, 2011, which that court transferred to the Imperial County Superior Court on December 5, 2011 (Respondent's Lodged Exhibit 5). On January 11, 2012, the Imperial County Superior Court denied the petition (Respondent's Lodged Exhibit 6).
Petitioner filed a habeas corpus petition in the California Court of Appeal, which that court denied in a reasoned decision on March 29, 2012 (Respondent's Lodged Exhibits 7, 8). Petitioner filed a habeas corpus petition in the California Supreme Court on May 2, 2012, which that court denied summarily on August 8, 2012 (Respondent's Lodged Exhibits 9, 10).
In the Rules Violation Report, Officer Becerra alleged that he saw Petitioner and inmates Askew, Powell and Horton "kicking and striking with their clenched fist [sic] inmate ZUSSA . . . who was on his back on the ground attempting to defend himself" (Respondent's Lodged Exhibit 2, p. 0005). The assault allegedly occurred on the yard #1 basketball court (id.). Becerra also allegedly saw three other inmates fighting at the same time (id.). Becerra stated that, after staff sprayed the inmates with oleoresin capsicum spray, the inmates responded to orders to get down (id.). Becerra allegedly handcuffed Petitioner and performed a clothed body search, which revealed no contraband (id.). Becerra reported that a medical evaluation determined that Zussa sustained a concussion, and that some of the injuries of Zussa and another alleged assault victim assertedly were consistent with the use of inmate-manufactured weapons (id.).
At the administrative hearing, Petitioner claimed he had been misidentified by Officer Becerra (id., p. 0007). Petitioner admitted that he had been on the yard #1 basketball court on the day of the incident, but claimed he was returning to his housing unit when the altercation took place (id.). Referencing photographs of Petitioner assertedly taken after the incident, the hearing officer asked Petitioner to explain allegedly visible tears on Petitioner's sweatshirt (id.). Petitioner responded: "I don't see a tear." (id.).
Inmate Zussa testified that he did not see Petitioner and that Petitioner did not assault Zussa (id.). Asked how Zussa knew this, he stated: "Earlier in the day, [Petitioner] and I were talking and we shook hands and I didn't see him during the incident" (id.). Asked whether Zussa's vision was so impaired during the incident as to render him unable to identify his assailant, Zussa stated: "No, I am fine and I didn't lose consciousness." (id.).
Officer Becerra testified that, on the day of the incident, Becerra observed Petitioner and three other inmates assaulting Zussa (id., p. 0008). Becerra said he saw Petitioner "physically assaulting" Zussa (id.). Becerra said he had not seen Petitioner and Zussa conversing earlier in the day, but said he had ...