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Chestang v. Swarthout

United States District Court, E.D. California

April 3, 2017

DANIEL K. CHESTANG, Petitioner,
v.
SWARTHOUT, Respondent.

          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. He challenges a prison disciplinary conviction that he received in 2012 for possession of a controlled substance. He seeks relief on due process grounds, claiming that the evidence was insufficient to support the conviction and that it was improper to punish him by changing his work and privilege assignments. 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 August 17, 2012, Correctional Officer T. Guadiana wrote a rules violation report (RVR) charging petitioner with “Possession of A Controlled Substance, ” in violation of Cal. Code Regs. tit. 15, § 3016(a). ECF No. 12-2 at 13.[1] Officer Guadiana alleged that:

On 08-17-12, at approximately 1303 hours, CSP-Solano received test results from Bureau of Forensic Services, Office of the District Attorney, indicating a Positive Test for a Green Leafy Substance that was submitted and confirmed to be Marijuana. Bindle #1, Bundle #2, Bindle #3 a total net weight inclusive of packaging, 3.00 grams, a useable amount. The Substance was tested as a result of the following:
On Thursday, June 14, 2012, at approximately 1145 hours while working as Building 2 2nd Tier Officer, I approached Inmate Perez (F-38618, 202-L), at the counselors clerk's desk on the dayroom floor because his pants were sagging. I ordered Inmate Perez to pull them up, at which time he started being argumentative. His behavior seemed odd and unwarranted so I advised him that my partner would be performing an unclothed body search. At which time Inmate Perez appeared to pass something to Inmate Chestang (J-10643, 2-126-U), the counselors clerk, who was seated at his work station. I ordered Inmate Chestang to leave the desk area. I searched the desk and found in the top right drawer, the first of three (3) bindles of a green leafy substance. The 1st bindle was wrapped in cellophane.
Upon the conclusion of the search of the desk, I began a search of Inmate Perez's cell, with negative results. I proceeded to search Inmate Chestang's cell. While searching the top shelf belonging to Inmate Chestang, I found a dark blue colored plastic tape dispenser. Inside the dispenser was a small bindle of a green leafy substance wrapped in a small piece of white paper, a bindle of a unknown substance wrapped in a piece of yellow latex glove, and three (3) torn pieces of paper with numbers and $100 written on them. I retrieved the contraband and placed it in my jumpsuit pocket. I advised Inmate Chestang of his Miranda Rights at which time he stated he fully understood his rights. I also advised Inmate Chestang of the Controlled Substance Identification Field Test Waiver, at which time he elected not to accept out test results. I marked the 1st bindle with a piece of white correction tape, containing the 1st Inmates name (Perez), CDCR number (F-38618), the 2nd Inmates name (Chestang), CDCR number (J-10643), todays date (06-14-12) and my initials (TLG). Then I marked the 2nd and 3rd bindles and the container I found them in with the Inmates name (Chestang), CDCR number (J-10643), today's date (06-14-12) and my initials (TLG), and placed all the evidence in a paper bag, then placed the bag in evidence locker #21 with a copy of my report. This concludes my report.

ECF No. 12-2 at 12-13.

         The disciplinary hearing on the rules violation report was held on September 4, 2012. Id. at 21. Officer Guadiana's report was disclosed to petitioner at least 24 hours in advance of the hearing. Id. Petitioner appeared at the hearing and stated he was ready to proceed. Id. at 22. Petitioner did not meet the criteria for the assignment of an investigative employee or a staff assistant, so neither was assigned to him. Id. At the hearing, the charge against petitioner was read to him. Id. at 21. Petitioner pled not guilty to the charge, stating: “I live in 2-128. They have me in 126 and 128, which cell did she find that in? It wasn't mine, you can see the statement from my witness. He takes responsibility for the drugs. I was just sitting at my desk working.” Id. at 23. The senior hearing officer (SHO) granted petitioner's request to have inmate Perez present as a witness. Id. at 22. Inmate Perez admitted to possessing the marijuana that was confiscated by Officer Guadiana from the clerk's desk. Id.

         Petitioner was found guilty of a violation of Cal. Code Regs. tit. 15, § 3016(a) based upon the allegations by Officer Guadiana contained in the RVR; the toxicology report confirming the green leafy substance to be a useable amount of marijuana; and a determination that that the RVR's error in identifying petitioner's housing assignment was merely typographical. Id. at 23. Petitioner was assessed a forfeiture of 140 days of worktime credits and sixty days of “A1/C” status. Id.

         Petitioner subsequently challenged his disciplinary conviction in a petition for writ of habeas corpus filed in the Solano County Superior Court. Id., Ex. 1. The Superior Court denied the petition, reasoning as follows:

On June 5, 2013, Petitioner Daniel Chestang filed this petition for writ of habeas corpus. Petitioner was issued a rule violation report (RVR) and found guilty at a prison disciplinary hearing for possessing a controlled substance. Petitioner challenges the outcome of his disciplinary hearing, arguing that there is no evidence to support that he was in possession of the contraband. He also claims that his due process rights were violated because Officer Guadiana wrongly wrote down his cell number. Finally, he argues that the senior hearing officer (SHO) improperly punished him by assessing 60 days of “A1/C status.” The decision of the hearing officer is supported by some evidence in the record. (Superintendent v. Hill (1985) 472 U.S. 445, 454-55 (hereafter Hill); In re Zepeda (2006) 141 Cal.App.4th 1493, 1497.) In this case, Correctional Officer Guadiana found drugs, not just in Petitioner's work desk, but also in Petitioner's cell, hidden inside a tape dispenser. This is some evidence that supports the finding of guilt. In reviewing disciplinary decisions, court do not examine the entire record, evaluate the credibility of witnesses, or reweigh the evidence. (Hill, supra, 472 U.S. at p. 455.)
Petitioner's claim that his due process rights were violated because Officer Guadiana wrongly wrote down his cell number lacks merit. The SHO and the Third Level appeal decision both indicate that this was merely a typographical error. Petitioner sets out no reason, evidence, or authority to support that he is entitled to any relief because of this.
Finally, Petitioner's claim that the SHO improperly punished him by assessing 60 days of “A1/C status” is moot. (See, e.g., Frias v. Superior Court (1975) 51 Cal.App.3d 919, 923-24.) The punishment complained of was effective from September 4, 2012 to December 3, 2012. Petitioner does not allege that he is ...

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