Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gomez v. W. L. Montgomery

United States District Court, S.D. California

July 11, 2019

GENO GOMEZ, Petitioner,
v.
W.L. MONTGOMERY, Warden, Respondent.

          REPORT AND RECOMMENDATION FOR ORDER GRANTING MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS [ECF NO. 9.]

          HON. WILLIAM V. GALLO, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Currently before the Court is Respondent W.L. Montgomery's (“Respondent”) Motion to Dismiss (“Motion”) Petitioner Geno Gomez's (“Petitioner”) Petition for Writ of Habeas Corpus (“Petition”) on the basis that the Petition does not attack the legality or duration of Petitioner's confinement to confer habeas jurisdiction and, in the alternative, that the Petition fails to state a cognizable federal question to invoke subject matter jurisdiction. (ECF No. 9.)

         The Court, having reviewed the Petition, the Motion to Dismiss, and all supporting documents submitted by both parties, RECOMMENDS the Motion be GRANTED and the Petition be DISMISSED without prejudice to Petitioner pursuing his claim under § 1983.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         A. State Court Trial

         Petitioner was found guilty of second-degree murder, arising from a conviction in Orange County Superior Court case number 99CF3023. (Motion, Doc. No. 8-2 at 64.)[1] In that case, Petitioner struck his victim with a bat, bound him with a wire, and strangled him to death. (Id. at 67.) Petitioner then wrapped the body in plastic and dumped it in Oceanside. (Id.) Petitioner was sentenced 15 years-to-life with a minimum eligible parole date of November 23, 2014. (Id. at 64.)

         B. Initial Parole Consideration Hearing

         Petitioner was deemed unsuitable for parole during his initial parole consideration hearing on July 1, 2015. (Doc. No. 8-2 at 64.) The panel denied parole for seven years based on Petitioner's heinous crime, twelve rules violations, prior criminal record, unstable social history, inadequate signs of remorse, unreasonable parole plans, lack of anger management, and an unfavorable Comprehensive Risk Assessment. (Id. at 64-77.)

         C. State Prison Rules Violation Proceeding

         On March 7, 2017, a letter addressed to Petitioner was scanned by Ms. H. Duarte, a mailroom supervisor at Calipatria State Prison. (Doc. No. 8-2 at 58.) Ms. Duarte observed anomalies in a manila envelope and upon further inspection found ten other envelopes, each containing one hypodermic needle. (Id. at 59.) Rules violation proceedings were initiated against Petitioner for violating California Code of Regulations, Title 15, Section 3016(c).[2] (Id.)

         During the rules violation proceedings on March 23, 2017, Petitioner argued that he should not be disciplined because he could not control what someone sent him in the mail. (Id.) Moreover, Petitioner argued he was never in control of the envelope. (Id.)

         However, one can be guilty of violating § 3016(c) through a conspiracy because under California Code of Regulations, Title 15, Section 3323(e)(8), possession of drug paraphernalia is a Division “C” offense, and subsection 3323(e)(12) provides that “conspiracy to commit any Division ‘C' offenses” is a Division “C” offense. (Id.)

         The Senior Hearing Officer (SHO) found that Petitioner violated § 3016(c) due to the complex manner in which the hypodermic needles were hidden. (Id. at 40.) The SHO reasoned that Petitioner must have communicated with the sender. (Id.) Sanctions consisting of the following issued against Petitioner: (1) 91 days credit loss; (2) 10 days confinement to quarters; (3) 90 days loss of canteen privileges; (4) 90 days loss of day room privileges; and (5) four months of mandatory drug testing. (Id. at 39-40.)

         On April 18, 2017, Petitioner filed an administrative appeal of the above decision. (Doc. No. 8-2 at 45.) Petitioner was permitted to bypass the first level of review in the three-level review system. (Id.) The second level appeal was denied on May 30, 2017. (Id. at 49.) Petitioner then submitted another appeal to the third and last level of review on June 20, 2017. (Id. at 46.) On August 24, 2017, the third level appeal was denied, thereby exhausting Petitioner's administrative remedies. (Id. at 52.)

         D. Habeas ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.