United States District Court, S.D. California
KENNETH R. BARBER, JR., Petitioner,
JEFFERY BEARD, Secretary, Respondent.
DENYING PETITIONER'S PETITION FOR HABEAS CORPUS
[Doc. No. 1] ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; AND [Doc. No. 15] DENYING CERTIFICATE OF APPEALABILITY
MARILYN L. HUFF, District Judge.
On May 23, 2014, Kenneth R. Barber Jr. ("Petitioner"), a state prisoner proceeding pro se and in forma pauperis, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On June 13, 2014, Jeffery Beard ("Respondent") was sua sponte substituted as respondent. (Doc. No. 7.) On July 18, 2014, Respondent filed a motion to dismiss, arguing that the Court lacked federal habeas jurisdiction because Petitioner's due process claim did not affect the fact or duration of his confinement. (Doc. No. 8.) On November 6, 2014, the magistrate judge issued a report and recommendation that the Court grant Respondent's motion to dismiss. (Doc. No. 13.) On December 17, 2014, Petitioner filed an objection to the report and recommendation. (Doc. No. 14.) For the following reasons, the Court adopts the magistrate judge's report and recommendation and denies Petitioner's petition for habeas corpus.
On September 12, 2013, the Superior Court of the State of California for the County of Imperial denied Petitioner's petition for a writ of habeas corpus. (Doc. No. 1-2 at 37.) The court considered the petition on the merits and held that the petition was without merit. (Id. at 38.) The court held that the fact that the "officers who witnessed the altercation are uniform in describing arm movements by petitioner which are consistent with slashing" provided some evidence that the inmate manufactured slashing-type weapon was attributable to Petitioner. (Id. at 39.) The court also noted that Petitioner had "failed to exhaust his administrative remedies by failing to appeal the third level determination made on June 21, 2013 that his appeal was not timely." (Id.)
On June 8, 2014, the California Court of Appeals denied Petitioner's petition for a writ of habeas corpus. (Id. at 40.) In the last reasoned state opinion on this petition, the Court of Appeals described the underlying facts as follows:
On November 9, 2009, a Calipatria correctional officer saw inmate Kenneth Barber overpowering inmate Dennis. The officer hit Barber with a baton and, although both inmates fell to the ground, Barber stayed on top of Dennis swinging with both arms. Staff sprayed both inmates with OC spray but had to use physical force to pry Barber off Dennis. An inmate manufactured slashing-type weapon, i.e., a 3-inch piece of plastic with a razor blade attached to one end, was found near Barber. Dennis was actively bleeding from a 6-inch laceration on his neck and a 6-inch laceration on his back, which required medical attention.
Authorities issued a rules violation report charging Barber with battery on an inmate with a deadly weapon. Although he admitted fighting with Dennis, Barber pleaded not guilty to battery with a deadly weapon and requested that Dennis be present at the hearing. The hearing officer denied the request because Dennis was unavailable (he had been paroled), found Barber guilty, but did not assess any loss of behavioral credits.
Asserting the officers saw him hit Dennis in the face and chest with a closed fist, Dennis had no lacerations on his face and chest, and no officer saw Barber use a weapon, Barber takes the position that the evidence showed he engaged in mutual conduct with Dennis-not that he committed a battery with a deadly weapon. He adds that Dennis stated in an interview with an investigator that Barber did not stab him, and complains the hearing officer's refusal to allow him to submit the investigator's notes or provide a mechanism for him to obtain a statement from Dennis violated his due process rights.
Although there was no direct evidence identifying Barber as the stabber, the evidence before the hearing officer included (1) statements by officers who witnessed the fight identifying Barber as the aggressor, reporting that staff was unable to subdue Barber without the use of force, and describing Barber's arm movements in a manner consistent with the slashing, (2) discovery of an inmate manufactured slashing weapon near Barber, and (3) the fact that Dennis' injuries were consistent with slashing injuries. This constitutes "some evidence" to support the disciplinary determination.
(Id. at 40-41, citations omitted.)
On March 12, 2014, the California Supreme Court denied Petitioner's petition for review without opinion. (Id. at 42.)
On May 23, 2014, Petitioner filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner challenges the sufficiency of the evidence to support the disciplinary hearing's finding that he was guilty of committing battery on an inmate with a deadly weapon and that the supervisory hearing officer's refusal to admit a statement by Dennis, either directly or through testimony by the investigator, violated his due process rights. (Doc. No. 1-1 at 11-12.) On July 18, 2014, Respondent filed a motion to dismiss on the grounds that this Court lacks federal habeas jurisdiction because Petitioner's due process claim did not affect the fact or duration of his confinement. (Doc. No. 8.) On November 6, 2014, the magistrate judge issued a report and recommendation that the Court grant Respondent's motion to dismiss. (Doc. No. 18.) On December 17, 2014, Petitioner filed his objection to the report and recommendation. (Doc. No. 14.)
I. Legal ...