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Duarte v. Frauenheim

United States District Court, E.D. California

June 27, 2016

ELMER DUARTE, Petitioner,
v.
SCOTT FRAUENHEIM, Respondent.

          FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

          MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. Respondent, Warden of Pleasant Valley State Prison, is represented by Krista Pollard of the office of the California Attorney General.

         I. PROCEDURAL BACKGROUND

         Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation following his January 24, 2012 conviction in Orange County Superior Court for assault with a semiautomatic firearm and transportation of a controlled substance with an enhancement for use of a firearm. (See Answer Ex. 1, ECF No. 13-1.) Petitioner is serving his resulting determinate sentence of eight years in prison. (Id.)

         On April 10, 2013, Petitioner was found guilty at a prison disciplinary hearing of possession of an inmate manufactured weapon, and assessed a 360 day forfeiture of good conduct time. (Pet. at 27.) Petitioner alleges that the disciplinary decision was based on insufficient evidence and that it violated his due process rights under the 6th and 14th amendments. (Pet.) Specifically, Petitioner contends: (1) that the weapon was found in the lower bunk area, which was not his area of the cell, and (2) that he had only been in the cell for about a week and the cell had not been properly searched prior to his placement in the cell. (Id. at 6.)

         On September 27, 2013, Petitioner filed a habeas petition in the Sacramento County Superior Court. The petition was denied in a reasoned decision on November 1, 2013. (Answer, Exs. 1-2.)

         On December 3, 2013, Petitioner filed a habeas petition in the California Court of Appeal for the Third District. The appellate court summarily denied the petition on December 12, 2013. (Answer, Exs. 3-4.)

         Petitioner filed a habeas petition to the California Supreme Court on March 3, 2014. The petition was summarily denied on May 14, 2014. (Answer, Exs. 5-6.)

         Petitioner filed the instant federal habeas petition on August 8, 2014. Respondent filed an answer to the petition on October 29, 2014. (See generally Answer, ECF No. 13.) Petitioner did not file a traverse. The matter stands ready for adjudication.

         II. FACTUAL BACKGROUND

         On February 16, 2013, Correctional Officer Hansen conducted a random cell search of Petitioner’s cell. (Pet. at 24.) Upon searching, Officer Hansen found an inmate manufactured weapon wrapped in tissue paper and inserted into the metal bracing of the bunkbed. (Id.) The weapon appeared to be an eight inch piece of Plexiglas sharpened on one end and wrapped with masking tape as a handle on the other. (Id. at 25.)

         Petitioner was charged with possession of an inmate manufactured weapon. (Pet. at 24-27.) He was provided a rules violation report on February 25, 2013. (Id.) On the same date, Petitioner waived the right to assistance of an investigative employee. (Id.) Petitioner did not make any statements prior to the disciplinary hearing or request the presence of any witnesses. (Id.)

         Petitioner appeared at the disciplinary hearing on April 10, 2013. (Pet. at 24-27.) In his defense, Petitioner claimed he was not guilty and stated “I had no knowledge of that. I had just moved in.” (Id.) After considering all the relevant evidence, the Senior Hearing Officer (“SHO”), Lieutenant S. Quirarte, found that the greater weight of the evidence supported the finding that Petitioner committed the prohibited act of possession of an inmate manufactured weapon. (Id.) The decision was based on a report of the officer who conducted the search of the cell including five pictures of the weapon and the location in the cell where the weapon was found. (Id.) Petitioner was sanctioned a disallowance of 360 days good conduct time were imposed. (Id.)

         III. DISCUSSION

         A. Jurisdiction

         Relief by way of a writ of habeas corpus extends to a prisoner under a judgment of a state court if the custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 fn.7 (2000). Petitioner asserts that he suffered a violation of his right to due process as guaranteed by the U.S. Constitution. While the disciplinary hearing occurred at Folsom State Prison, Petitioner was incarcerated at the Pleasant Valley State Prison at the time of filing this petition, which is located ...


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