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Dasenbrock v. Lizzaraga

United States District Court, E.D. California

June 12, 2017

ROBIN DASENBROCK, Petitioner,
v.
JOE A. LIZZARAGA, Warden Respondent.

          FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS THIRTY (30) DAY OBJECTION DEADLINE

          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. Joe A. Lizarraga, Warden of Mule Creek State Prison, is hereby substituted as the proper named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Respondent is represented by Krista Leigh Pollard of the Office of the California Attorney General.

         Petitioner challenges the adverse adjudication of a prison Rules Violation Report for battery on an inmate. He alleges the following due process violations in relation to the disciplinary proceedings: (1) he was not provided the evidence against him; (2) he was denied an opportunity to present witnesses and evidence; (3) prison officials failed to appoint an appropriate investigative employee; (4) the disciplinary finding is based upon insufficient evidence; and (5) prison officials did not conduct a mental health evaluation prior to the hearing. (ECF No. 1 at 8.)

         I. Procedural History

         Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a 1991 judgment of the Orange County Superior Court convicting him on multiple counts of rape, first degree burglary, oral copulation, assault, sodomy, and robbery, with associated enhancements. (Answer, Exh. 1, ECF No. 13-1.) He is serving a sentence of 142 years and 4 months. (Id.)

         On April 26, 2013, an incident occurred between Petitioner and Inmate Acosta. (See Petition, ECF No. 1 at 51.) As a result, on April 27, 2013, Petitioner was issued a Rules Violation Report (“RVR”) for battery on an inmate. (Id.)

         The RVR was heard on May 8, 2013. The Senior Hearing Officer found Petitioner guilty and assessed a 90 day loss of credits. (Id at 53-55.)

         Petitioner appealed the disciplinary finding, and his appeal was granted in part. (Id. at 68-69.) The appeal reviewer noted that Petitioner's due process rights were violated in the adjudication of his RVR because he was denied witnesses who could provide relevant evidence. (Id.) The RVR was ordered reissued and reheard.

         The rehearing occurred on September 5, 2013. (Id. at 82.) Petitioner again was found guilty and assessed a 90 day loss of credits. (Id. at 82-85.) Petitioner appealed. (Id. at 76.) His appeal bypassed the first level of review and was denied at the second and third levels of review. (Id. at 76-77.)

         On August 4, 2014, Petitioner filed a petition for writ of habeas corpus in the Kings County Superior Court. (Answer, Exh. 2, ECF No. 13-2 and 13-3.) Therein, he alleged the following claims regarding his disciplinary proceedings: (1) his due process rights were violated because evidence was not disclosed to him; (2) he was denied his right to present witnesses and evidence; (3) prison officials failed to conduct a mental health review; (4) he was denied his right to a competent and mutually agreed upon investigative employee; and (5) the evidence against him was insufficient. On August 28, 2014, the Superior Court denied the petition in a reasoned decision. (Answer, Exh. 3, ECF No. 13-4.)

         On October 7, 2014, Petitioner raised the same claims in a petition for writ of habeas corpus to the California Court of Appeal, Fifth Appellate District. (Answer, Exh. 4, ECF No. 13-5 and 13-6.) The petition was summarily denied on October 23, 2014. (Answer, Exh. 5, ECF No. 13-7.)

         On December 3, 2014, Petitioner raised the same claims in a petition for writ of habeas corpus to the California Supreme Court. (Answer, Exh. 6, ECF Nos. 13-8 and 13-9.) The petition was summarily denied on February 25, 2015. (Answer, Exh. 7, ECF No. 13-10.)

         Petitioner filed the instant petition for writ of habeas corpus on March 25, 2015. (ECF No. 1.) On May 29, 2015, Respondent filed an answer. (ECF No. 13.) On July 13, 2015, Petitioner filed a traverse. (ECF No. 16.) The matter is deemed submitted.

         II. Factual Background

         As stated, on April 26, 2013, an incident occurred between Petitioner and Inmate Acosta. According to Petitioner, he and Acosta were “fighting, ” i.e., engaged in mutual combat. Acosta was injured and, on April 27, 2013, he reported to prison medical staff that he was hit by Petitioner. (ECF No. 1 at 59.) Petitioner was thereafter taken to medical, where he reported that he himself had suffered a bruise on the back of his head from being hit by Acosta. (Id. at 60.)

         On April 27, 2013, Petitioner received an RVR for battery on an inmate. (Id. at 51.) K. Estes was assigned as an Investigative Employee (“IE”). (Id. at 52.) Estes interviewed Petitioner. Petitioner requested that Inmate Acosta's knee be checked for injuries. (Id. at 57.) It appears this request was not pursued. Petitioner also identified his “pod-mates, ” Inmates Harding, Morales, Ojeda, and Wendemagengehu, as witnesses. (See id. at 54.) Petitioner submitted specific questions to be asked of the witnesses, and they were interviewed prior to the hearing. (See id. at 56-57.) Harding stated that he did not see Petitioner hit Acosta and that the two were “just wrestling.” Wendemagengehu also stated that Acosta and Petitioner were “just wrestling.” Morales and Ojeda stated, “No comment.” (Id.)

         On May 3, 2013, Petitioner was evaluated by Mental Health Clinician Farrell. (Id. at 58.) Farrell concluded that a mental disorder did not appear to contribute to the offense and there were no mental health factors that the hearing officer should consider in assessing the penalty. (Id.)

         Prior to the hearing on his RVR, Petitioner was provided with seven Confidential Information Disclosure Forms. (Id at 61-67.) The forms are substantially identical. They state that “[t]he identify of the source(s) cannot be disclosed without endangering the source(s) or the security of the institution.” They state that the information is considered reliable because (1) more than one source independently provided the same information, and (2) part of the information provided by the source(s) had already been proven true. The information received was described generally as follows: “On Saturday 4/27/13, reliable confidential information was received indicating that on 4/26/13, you committed battery on Inmate Acosta (AL5771) in cell G3-40 by striking him in the face with your fist.” (Id.)

         On May 8, 2013, the RVR was heard by Correctional Lieutenant Smith. (Id. at 53.) Petitioner pled not guilty to the charge and stated that he was guilty of mutual combat. (Id at 54.) Smith denied Petitioner's request to call Inmates Harding, Morales, Ojeda, and Wendemagengehu as witnesses, stating that, based on their interview statements, these witnesses had “no comment or any relevant or additional information that would help” Petitioner. (Id.)

         Petitioner was found guilty based on the following findings: (1) the RVR, in which Correctional Sergeant J. Martin stated that he had received reliable confidential information indicating that Petitioner had committed battery on Inmate Acosta, (2) the Medical Report of Injury documenting injuries for both Acosta and Petitioner, (3) the seven confidential memoranda, which were found reliable because they were corroborated by the Medical Report of Injury, (4) Petitioner's partial admission that he had engaged in mutual combat, and (5) Petitioner's failure to present any additional information or evidence to mitigate or refute the charges. (Id. at 54-55.)

         The hearing officer noted that Petitioner and Acosta had refused to sign a compatibility chrono and therefore were designated as enemies. (Id. at 55.) According to Petitioner, he requested to sign a compatibility chrono to show that he and Acosta could get along on the yard. (Id. at 16.)

         Petitioner appealed the disciplinary finding. (Id. at 47.) His appeal was partially granted on the ground that the hearing officer's failure to call Harding and Wendemagengehu as witnesses violated Petitioner's due process rights because their interviews indicated that their testimony would be relevant to the charged offense. (Id. at 68-69.) The RVR was ordered reissued and reheard. (Id.)

         On August 28, 2013, Petitioner received the reissued RVR. (Id. at 80.) B. Phillips was assigned to serve as Petitioner's staff assistant. (Id. at 81.) Estes again was assigned to serve as IE. (See id. at 81.) According to Petitioner, he objected to Estes' continued involvement in the RVR. However, Estes noted that Petitioner had no such objections. (Id. at 87.)

         Also according to Petitioner, he submitted an additional question to be asked of his witnesses: “did you see both inmates fighting.” (Id. at 17.) This question already had been asked of Inmates Morales, Ojeda, and Wendemagengehu. (Id. at 56-57.) Harding, however, had only had been asked, “Did you see the two inmates fighting on the floor in two places?”, to which he responded, “Just wrestling around.” (Id. at 56.) Estes did not make note of this additional question, nor does it appear that he submitted the question to Harding.

         Petitioner reiterated his request that Acosta's knee be inspected for injuries. He also requested three additional witnesses that were in cell G40 at the time of the incident. However he could not recall their names and did not provide any other information to assist in locating them. (Id. at 88.) Estes stated that he was therefore unable to locate these three witnesses. (Id.)

         On September 5, 2013, the RVR was reheard by Correctional Lieutenant Carrillo. (Id. at 82.) Petitioner pled not guilty and reiterated his claim that the incident involved mutual combat. He stated that Acosta struck Petitioner first. (Id. at 83.) Petitioner claims that, at the hearing, he objected to Estes' role as IE, perceived deficiencies in the IE report, Estes' failure to locate witnesses and ask Petitioner's additional question, the hearing officer's decision not to reveal the names of confidential informants, the use of confidential information against him, and the lack of information contained in the Confidential Information Disclosure Forms. (Id at 17-18.)

         Petitioner's request to call Inmates Harding, Morales, Ojeda, and Wendemagengehu had been granted. (Id at 83.) However, the hearing officer noted that Petitioner had no additional questions for the witnesses, and thus he only reviewed the testimony from the inmates' interviews, which was unchanged from the prior hearing. Petitioner was found guilty based on the following evidence: (1) the contents of the RVR, (2) Acosta's Medical Report of Injury, (3) the contents of the confidential memoranda, and (4) Petitioner's failure to present information or evidence to mitigate or refute the charge. (Id at 84.)

         According to Petitioner, he underwent a second Mental Health Assessment in relation to his RVR on September 12, 2013. (Id. at 20.)

         III. Jurisdiction

         Respondent challenges the Court's habeas 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 n.7 (2000). Habeas corpus jurisdiction exists when a petitioner seeks expungement of a disciplinary conviction which falls within the “core of habeas corpus, ” meaning that success on the petition will lead to speedier release. Nettles v. Grounds, 830 F.3d 922, 927, 934 (9th Cir. 2016) (en banc); see also Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011).

         In this case, Petitioner asserts that he suffered a violation of his right to due process as guaranteed by the U.S. Constitution. He is serving a determinate term and challenges a disciplinary proceeding that resulted in a 90 day loss of credits. Time credits work to shorten a determinate term of incarceration. Thus, a restoration of time credits would actually speed ...


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