Chestang v. Swarthough

Filing 12

ORDER signed by Magistrate Judge Gregory G. Hollows on 11/7/12 ORDERING that the petition is DENIED; a certificate of appealability is not issued in this action. CASE CLOSED. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL K. CHESTANG,

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Petitioner,

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vs.

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No. 2:12-cv-0737 GGH P

SWARTHOUT,

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Respondent.

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ORDER
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Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254 and proceeds in forma pauperis. This action is

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before the undersigned pursuant to petitioner’s consent. Doc. 4. Petitioner’s original habeas

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petition was denied with leave to amend and petitioner has filed an amended petition. However,

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the amended petition is substantially similar to the original petition and contains the same

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deficiencies.

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Petitioner challenges a prison disciplinary finding that resulted in the loss of

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credits. On December 3, 2007, a cell phone was found hidden inside petitioner’s typewriter, and

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petitioner was punished nearly three years later on September 5, 2010, a cell phone charger was

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found hidden in petitioner’s typewriter and petitioner was assessed a loss of credits.1

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Petitioner argues that these two punishments were a violation of Double Jeopardy

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because the cell phone charger found in 2010 was part of a set with the cell phone found in 2007,

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and the phone cannot operate without being charged by the charger.2

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The Double Jeopardy Clause of the Fifth Amendment guarantees that no person

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shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const.

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Amend. V. The Supreme Court in Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056 (1969),

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held that the Double Jeopardy Clause’s protections were applicable to the states through the

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Fourteenth Amendment. The guarantee against double jeopardy protects against (1) a second

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prosecution for the same offense after acquittal or conviction, and (2) multiple punishments for

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the same offense. Witte v. United States, 515 U.S. 389, 395–96, 115 S.Ct. 2199 (1995).

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Proceeding pursuant to Fed. R. Civ. P. Rules on § 2254 Habeas Corpus, Rule 4

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(summary dismissal), petitioner’s argument fails to set forth a viable habeas claim. Petitioner

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was not prosecuted or punished for the same offense. There were two distinct factual scenarios

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and offenses that occurred nearly three years apart and petitioner was not put in jeopardy for the

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same offense. Being found in possession of contraband that may have been related to other

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contraband found several years earlier will not state a Double Jeopardy claim. Nor does it matter

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that petitioner happened to hide the items in the same place. Ultimately, and as found by the

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CDCR and state court, that it is unlawful to be in possession of a cell phone charger per se,

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petitioner committed two separate offenses and was properly punished.3 As the state court stated

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Contrary to petitioner’s assertions, he was not found guilty of possessing the charger in
2007. Amended Petition at 15.
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The court notes that on yet another occasion on February 16, 2007, petitioner was found to
be in possession of a separate cell phone and charger. Amended Petition at 19.
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For example, assume that a person has an unlawful weapon within his possession and also
ammunition used in the weapon which is unlawful to possess in its own right, i.e., one could be
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in denying petitioner’s habeas petition, “[h]is decision to keep and hide the cell phone charger-a

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separate contraband item from the cell phone itself-constitutes a new violation of prison rule.”

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Amended Petition at 35.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. The petition is denied for the reasons discussed above;

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2. A certificate of appealability is not issued in this action.

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DATED: November 7, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH: AB

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ches0737.dis

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charged with unlawful possession of the ammunition regardless of whether it was found in
connection with an actual weapon. The fact that a prosecution occurred for the weapon itself, and
a later prosecution for the ammunition when it was found, does not implicate Double Jeopardy.
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