United States District Court, E.D. California
Edward James Servin, Petitioner, Pro se, FOLSOM, CA.
For Rick M. Hill, Warden, Mathew L. Cate, Secretary CDCR, Respondents: Krista Leigh Pollard, LEAD ATTORNEY, California Attorney General's Office, Sacramento, ca.
FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, UNITED STATES 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 he received in 2010 while he was imprisoned at Folsom State Prison. Petitioner claims that his disciplinary conviction violates his federal constitutional right to due process. Upon careful consideration of the record and the applicable law, it is recommended that petitioner's application for habeas corpus relief be denied.
On October 14, 2010, Correctional Officer (C/O) A. Smith wrote a rules violation report (RVR) charging petitioner with " Introduction/Distribution of C/S, in violation of 15 Cal. Code Regs. § 3016(c)."  ECF No. 14-1 at 26. C/O Smith alleged that:
On Wednesday, October 13, 2010, at approximately 12:00 noon, I completed my initial investigation into criminal activity occurring at the California Rehabilitation Center. During this investigation I became aware of Inmate Servin, Edward K92197 (213-34L). Information revealed that Inmate Servin was responsible for the introduction, distribution and sells [sic] of narcotics, tobacco and cell phones. This introduction was on a routine basis and generally completed through inmates with job assignments outside the secured perimeter. Inmate Servin would sell his narcotics and have the buyers family members send money to either Ms. Naraporn Aguilar or Ms. Renee Smith, both of these individuals are approved visitors of Inmate Servin. Inmate Servin will be made aware of this 115 upon receipt of it. For additional information refer to confidential memorandums placed within the confidential material folder of his C-file. Inmate Servin is not a member of the MHSDS at any level of care and currently has a TABE score of 12.9.
Prior to the disciplinary hearing on the RVR, petitioner requested a staff assistant. Id. at 27, 31. Prison authorities determined that the matter did not meet the criteria for assignment of a staff assistant and none was assigned. Id. However, an investigative employee (IE) was assigned. Id. at 27.
Prior to the disciplinary hearing, the IE met with petitioner. Id. at 31. Petitioner presented the IE with a hand-written list of questions to ask inmate Monchak, as follows:
Q1. " Do you remember the amount of the loan given to you [sic] by Renee Smith to your wife Brianda Monchak back in May of 2010?"
Q2. " What was the amount of that loan?"
Q3. " Do you remember the amount returned by your mother Lydia Monchak?"
Q4. " Was this before or after my first visit with my fiance?"
Q5. " When did I allegedly sell you any narcotics, dates and times?"
Q6. " About $275.00 sent to his wife Brianda Monchak in the month of May 2010. Does he recall this transaction? What was the purpose of Renee Smith my fiancé sending this to Mr. Monchak's wife Brianda Monchak?"
Q7. " My little red phone book has the transaction number for that Western Union between Renee Smith and Brianda Monchak?"
Q8. " What happened the first time you tried to leave Facility II?"
Q9. " What happened or changed on your second try?"
Id. However, the IE determined that inmate Monchak was not available to be interviewed because he was on " Out-to-Court status." Id.
Petitioner also asked the IE to locate documents regarding a list of his approved visitors, petitioner's visiting history, and " visiting Staff interviews, video recordings, and surveillance report." Id. at 32. In response, petitioner was informed in writing that:
The information you are requesting is not within the scope of the I/E's duties. The I/E gathers information for the SHO. The I/E interviews you, gathers information from you, and questions staff and I/Ms who may have relevant information, screen prospective witnesses and submits a report to the SHO, in which you receive a copy
Id. Petitioner also asked for copies of certain California Penal Code sections. Id. He was advised that " It's not the responsibility of the IE to provide you with copies of the Penal Code. You have access to the Law Library for these items." Id.
The disciplinary hearing on the RVR was held on November 12, 2010. Id. at 27. Petitioner appeared at the hearing and stated that he was in good health and ready to proceed. Id. He acknowledged that he had received copies of all applicable reports to be used as evidence against him at least twenty-four hours in advance of the hearing. Id. Those reports included CDC forms 115, 115A, 1030, and 837, and a " Memorandum of D.A. Referral Rejection." Id. Petitioner explained the charge against him to the senior hearing officer (SHO) " in his own words" and stated that he understood the " purpose and procedures of the ...