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Liu v. Hill

United States District Court, E.D. California

April 9, 2014

MANNY LIU, Petitioner,
v.
RICK HILL, Respondent.

FINDINGS AND RECOMMENDATIONS

EDMUND F. BRENNAN, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a prison disciplinary conviction that resulted from a rules violation report issued against him in 2010, while he was imprisoned at Salinas Valley State Prison.[1] Petitioner seeks relief on due process grounds, claiming that the evidence was insufficient to support his conviction for constructive possession of a cell phone. Upon careful consideration of the record and the applicable law, it is recommended that petitioner's application for habeas corpus relief be denied.

I. Background

On July 10, 2010, Correctional Officer A. Garibay wrote a rules violations report (RVR) charging petitioner with "Possession of A Cell Phone, " in violation of Cal. Code Regs. tit. 15, § 3006(c)(19) (2010). ECF No. 1 at 28. Officer Garibay alleged that:

On 07-08-10, at approximately 1130 hours, while I was assigned as B5 Floor Officer #1, I was conducting a cell search of cell B4-202, occupied by Inmates Liu (V-86065) and Sayasanh (G-29409). During the search I discovered a Samsung Cell Phone and charger underneath the bottom shelf between two pairs of shoes. I then processed the contraband into... evidence locker #1 at 1250 hours. Inmates Liu and Sayasanh are both aware of the finding and they were notified that they will be receiving a serious rules violation report.

Id.

The disciplinary hearing on the rules violation report was held on August 18, 2010. Id. at 29. All reports used as evidence against petitioner, including Officer Garibay's report, were disclosed to him at least 24 hours in advance of the hearing. Id. Petitioner appeared at the hearing and stated he was ready to proceed. Id. Petitioner met the criteria for the assignment of an investigative employee, and Officer G.E. Noguchi was assigned as the investigative employee. Id. Petitioner did not meet the criteria for assignment of a staff assistant, so one was not assigned. Id.

At the hearing, the charge against petitioner was read to him. Id. Petitioner pled not guilty to the charge, stating: "I did not know anything about the phone." Id. The senior hearing officer (SHO) then posed the following questions to petitioner:

Q: Were you assign[ed] to the upper bunk or lower bunk?
A: Lower bunk.
Q: Who was assigned the bottom shelf?
A: Me.
Q: The area underneath the bottom shelf. Is that your area?
A: No it's neutral, we both use it.

Id. at 29-30.

Petitioner requested and received permission to call inmate Sayasanh as a witness. Id. Because inmate Sayasanh had been transferred to another institution, the SHO contacted the inmate via telephone. Inmate Sayasanh responded to three questions posed by petitioner, via speaker phone:

Q: Did you know about the phone?
A: Yes, it was mine.
Q: Did you get a cell ...

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