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Levar Emerson Jones v. James D. Hartley

April 29, 2013

LEVAR EMERSON JONES,
PETITIONER,
v.
JAMES D. HARTLEY, RESPONDENT.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS (ECF No. 1)

Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

PROCEDURAL BACKGROUND*fn1

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation following his 2003 conviction for arson. Petitioner is serving a sentence of twenty-one years in prison.

In 2012, Petitioner filed a petition for writ of habeas corpus in the San Luis Obispo County Superior Court, contending he was denied due process because there was no evidence to support a prison disciplinary violation for destruction of state property which resulted in thirty-one days of credit loss. Petitioner also argued that prison staff failed to follow state regulatory procedures for conducting cell searches.

On April 19, 2012, the superior court denied the petition in a reasoned decision finding that Petitioner's due process rights were not violated.

Petitioner then filed a petition for writ of habeas corpus in the California Court of Appeal, Second Appellate District. On July 18, 2012, the petition was summarily denied.

On July 30, 2012, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. On October 10, 2012, the petition was summarily denied.

On November 9, 2012, Petitioner filed the instant federal petition for writ of habeas corpus in the United States District Court for the Central District of California. On November 29, 2012, the petition was transferred to this Court.

Respondent filed an answer to the petition on March 1, 2013, and Petitioner filed a traverse on April 1, 2013.

FACTS*fn2

On June 27, 2011, at approximately 10:15 hours Officer Vasquez was performing his duties as Building Six, Second Floor Officer, at the direction of Supervisory Staff, the building was closed and all inmates were ordered to exit for a security inspection. Specifically, C-Quad Custody Staff were ordered to perform cell-by-cell inspections of every cell within the building. This was due to the recent discovery of structural altercations/modifications within cells for contraband concealment and/or attempts of escape. As a result, the inspections were mandated for institutional safety and security. Multiple cells had been discovered to have such obviously deliberate alterations which resulted in the cells being secured and deadlocked as potential crime scenes and the occupants were temporarily re-housed into the Administrative Segregation Unit (ASU), pending repairs by Plant Operations personnel due to the compromised structural integrity of the cells.

During a search of cell number 6238, which was occupied by Petitioner and inmate Gilbert Gray, Officer Vasquez discovered a hole approximately two and one-half inches by one and one-half inches by five inches that had been deliberately created into the wall.

Petitioner was charged with destruction of state property valued at less than $400.00 and a hearing was held on July 22, 2011. Based on the reports of the officers and evidence presented, Petitioner was found ...


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