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Rodriguez v. Montgomery

United States District Court, S.D. California

November 9, 2017

FRANCISCO RODRIGUEZ, Plaintiff,
v.
W.F. MONTGOMERY, Warden, Defendant.

          REPORT AND RECOMMENDATION DENYING PETITION FOR WRIT OF HABEAS CORPUS

          Peter C. Lewis United States Magistrate Judge.

         I. INTRODUCTION

         Petitioner Francisco Rodriguez, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus. (Doc 1.) Petitioner is in the lawful custody of California Department of Corrections and Rehabilitation (CDCR) following his March 12, 2014 guilty plea and conviction for one count of voluntary manslaughter with a weapons enhancement, for which he was serving a determinate prison term of twelve years. (See Doc. 1, at 1-2.) Petitioner does not challenge his underlying conviction or the imposition of his sentence but rather seeks to overturn the ruling of an institutional administrative disciplinary action in which he was found guilty of possessing methamphetamine on March 21, 2016. (Doc. 1, at 3.) For the reasons given below, Petitioner's Petition should be denied.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         The following facts are taken from the Superior Court of California's Order denying his habeas petition. (Lodgment 4.)

On Monday, October 27, 2014, Officer R. Ramos, acting as B4 Floor Officer #1, approached cell B4-110 for a random cell search. Cell B4-110 was assigned to Petitioner, who was not present, and Inmate Anguiano was present. Inmate Anguiano was cuffed, escorted out, and subjected to an unclothed search with negative results for contraband. Officer Ramos returned to the cell and searched it, finding a white crystal substance wrapped in clear plastic on the upper shelf belonging to the upper bunk. He took possession of the substance, concluded the search, and then turned the substance over to Officer R. Steele.
Officer Ramos was present with Officer Steele when Officer Steele opened, weighed, tested, and photographed the bindle. Officer Steele obtained a weight of 1 gram, and, using a Presumptive Field Test (NIK Test), determined that the substance was methamphetamine. The substance was then packaged and everything was secured into evidence locker #7 in sub-evidence room #430-144.
The same day, Officer Steele had Petitioner provide a urine sample. He advised Petitioner of the results of the NIK Test, and Petitioner elected to reject the results. It appears that ultimately, on April 28, 2015, Petitioner opted to accept the NIK Test results.
On June 1, 2015, a hearing was held before Senior Hearing Officer J. Coronado, during which Petitioner pled not guilty, stating “I'm not guilty because it's not mine.” Inmate Anguiano appeared at the hearing, and acknowledged ownership of the contraband, stating that he obtained it a few minutes after Petitioner left the cell.
The Senior Hearing Officer found Petitioner guilty of violation of Cal. Code Regs., tit. 15, § 3016, subd. (a) POSSESSION OF A CONTROLLED SUBSTANCE - METHAMPHETAMINE based on the Officers' reports, the physical evidence, and the testimony of Petitioner and Inmate Anguiano. Petitioner was assessed penalties consistent with a Division “B” offense.
Petitioner argues that there is insufficient evidence the drugs were within his possession or under his control [because of] the fact he was forced to double cell and his cellmate confessed to ownership of the drugs. Petitioner includes a copy of a declaration from Inmate Anguiano in which he reaffirms his ownership of the drugs and Petitioner's lack of knowledge.
Petitioner takes issue with the concept of “constructive possession” which is frequently the basis for findings of guilt in CDCR Form 115 proceedings involving the existence of contraband in relatively confined areas shared by more than one inmate, for example, two inmate cells. The case that provides the answer to Petitioner's question is In re v. Zepeda (4th Dist., 2006) 141 Cal.App. 4th 1493. That case held that merely by virtue of being an occupant of the cell, the petitioner had constructive possession of contraband sufficient to warrant the disciplinary measures imposed. (Id., at 1499-1500.)
The court's review of the evidence in these cases is limited to whether the decision of the hearing officer is supported by some evidence. (In re v. Zepeda, supra, 141 Cal.App. 4th 1493, 1493.).

(Lodgment 4, at 1-3.) Petitioner then appealed the Superior Court's ruling to the California Court of Appeal. The ...


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