United States District Court, C.D. California
REPORT AND RECOMMENDATION OF UNITED STATE MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable John A. Kronstadt, 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 December 4, 2014. Petitioner challenges his prison disciplinary convictions for battery on an inmate and attempted oral copulation on an inmate against the inmate's will. On December 23, 2014, Respondent filed a "Motion to Dismiss, etc." ("Motion to Dismiss"), contending that the Petition is untimely and that three of Petitioner's claims are unexhausted. On February 5, 2015, Petitioner filed an "Opposition to Respondents Motion to Dismiss, etc." ("Opposition to Motion to Dismiss").
My Minute Order filed February 11, 2015, the Magistrate Judge ordered Respondent to address the merits of all claims raised in the Petition. On March 5, 2015, Respondent filed an Answer, accompanied by exhibits. On April 23, 2015, Petitioner filed a Traverse.
On August 24, 2012, a hearing officer found Petitioner guilty of battery on an inmate, in Rules Violation Report log number FAA-12-07-014 (Petition, Ex. D, ECF Docket No. 1, p. 43; ECF Docket No. 1-1, p. 1). Petitioner received a 90-day credit loss and a 30-day privilege loss (id., ECF Docket No. 1-1, p. 1).
On August 26, 2012, a hearing officer found Petitioner guilty of attempted oral copulation against the victim's will, in Rules Violation Report log number FAA-12-07-012 (Petition, Ex. F, ECF Docket No. 1-1, pp. 18-19). Petitioner received a 360-day credit loss (id., p. 19).
Petitioner filed an administrative appeal of the attempted oral copulation conviction (Petition, Ex. G). On January 4, 2013, Petitioner's administrative appeal was denied at the Third Level of Review (id., Ex. G, ECF Docket No. 1-1, pp. 25-26). Petitioner did not file an administrative appeal of the battery conviction.
On October 2, 2013, Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court, which that court denied in a written order on December 2, 2013 (Motion to Dismiss, Exs. 1, 2). On April 22, 2014, Petitioner filed a habeas corpus petition in the California Court of Appeal, which that court denied summarily on May 9, 2014 (id, Exs. 3, 4). On June 2, 2014, Petitioner filed a habeas corpus petition in the California Supreme Court, which that court denied summarily on August 13, 2014 (id., Exs. 5, 6).
On July 24, 2012, Petitioner was placed in administrative segregation pending an investigation into allegations that Petitioner had sexually harassed and committed battery on inmate Marshman (Petition, Ex. B, ECF Docket No. 1, p. 36). On July 29, 2012, the reporting officer signed a Rules Violation Report, Log Number FAA-12-07-012, charging Petitioner with attempted oral copulation against the victim's will, based on the reports of four confidential informants (id., Ex. F, ECF Docket No. 1-1, p. 9). On July 30, 2012, the reporting officer signed a Rules Violation Report, Log Number FAA-12-07-014, charging Petitioner with battery on an inmate, based on the reports of two of the four confidential informants, CI-1 and CI-2 (Petition, Ex. D, p. 40).
I. Rules Violation Report Log No. FAA-12-07-012 (Attempted Oral Copulation)
Rules Violation Report Log No. 12-07-012 was based principally on the following information obtained by the investigative employee from four confidential sources. The confidential informants alleged the following:
On July 21, 2012, at approximately 02:30 hours, Confidential Informant 1 ("CI-1") allegedly observed Petitioner approach inmate Marshman while Marshman was sitting on a toilet (Petition, Ex. F, ECF Docket No. 1-1, p. 9). CI-1 allegedly saw Petitioner, with his penis exposed, grab Marshman's head and attempt to force Marshman to perform oral sex on Petitioner (id.). On July 23, 2012, at approximately 23:00 hours, CI-1 saw Petitioner punch Marshman in the face (Petition, Ex. F, ECF Docket No. 1-1, pp. 9-10).
Late at night on July 23, 2012, Confidential Informant 2 ("CI-2") allegedly observed Petitioner and Marshman arguing in the inmate restroom, and thereafter allegedly observed Marshman walk out of the restroom holding his cheek and allegedly heard Marshman say that Petitioner had punched Marshman (id., pp. 9-10).
Confidential Informants 3 and 4 ("CI-3" and "CI-4, " respectively) described prior sexual acts in which Petitioner allegedly had engaged. CI-3 stated that, "from November 23, 2012 through May 22, 2012 [sic], " Petitioner repeatedly approached CI-3 and asked CI-3 to perform sexual acts with Petitioner in exchange for money and/or canteen items (id.). When CI-3 allegedly refused these advances, Petitioner assertedly threatened to commit battery on CI-3 (id.). CI-3 allegedly obtained a bed move in order to avoid battery and sexual assault by Petitioner (id.).
CI-4 stated that, during a two week period beginning on July 15, 2011, Petitioner repeatedly approached CI-4 and requested that CI-4 perform oral copulation on Petitioner in exchange for money and/or canteen items (id.). When CI-4 assertedly refused Petitioner's advances, Petitioner allegedly threatened to commit battery on CI-4 if CI-4 continued to refuse (id.). CI-4 allegedly told Petitioner that CI-4 would fight back and defend himself if Petitioner continued his alleged threats and unwelcome sexual advances (id.).
The reporting employee found that the confidential informants' statements were reliable. The "Confidential Information Disclosure ...