United States District Court, D. Arizona
REPORT AND RECOMMENDATION
MICHELLE H. BURNS, Magistrate Judge.
On March 26, 2013, Petitioner Leonard Duane Griffith, an inmate currently incarcerated at the Federal Correctional Institution ("FCI"), Phoenix, Arizona, filed a pro se Petition for Writ of Habeas Corpus (hereinafter "habeas petition") pursuant to 28 U.S.C. §2241, challenging the Bureau of Prisons' finding of guilt on the charge of Possessing a Hazardous Tool, and requesting a restoration of 41-days loss of good time, and "any other relief this Court deems appropriate." (Doc. 1.) On August 8, 2013, Respondent filed his Answer urging the Court to deny Petitioner's habeas petition on the merits. (Doc. 8.) On September 11, 2013, Petitioner filed a Traverse in opposition to Respondent's Answer. (Doc. 10.
Petitioner is currently an inmate housed at FCI, Phoenix, Arizona, and is serving a 262-month sentence for drug offenses, with a projected release date of June 18, 2026. (Doc. 8-1, at 4 ¶¶3, 4.
On April 15, 2012, prison staff searched Petitioner's jail cell and found several items of contraband, namely: an altered hair trimmer motor wired to a battery pack; an inmate-manufactured heating device (colloquially referred to as a "stinger, " which is commonly used to create intoxicants); a vial containing a crushed substance; and, a six-inch plastic rod with a sharpened tip on one end and a handle fashioned with tape on the other. (Doc 8-1, at 33 ¶4.) The officer that discovered these items charged Petitioner with three prohibited acts Code 104, Possession, Manufacture, or Introduction of a Gun, Firearm Weapon, Sharpened Instrument, Knife, Dangerous Chemical, Explosive, Ammunition, or any Instrument Used as a Weapon; Code 302, Misuse of Authorized Medication; and Code 305, Possession of anything not authorized for retention or receipt by the inmate, and not issued to him through regular channels. (Id.)
Petitioner was served with the incident report later that evening by a Lieutenant, who informed Petitioner of his rights, and investigated the incident. (Doc. 8-1, at 33 ¶5.) Petitioner indicated he understood his rights and made the statement, "it is not a weapon, " but did not request that the Lieutenant interview any witnesses. ( Id., 39.) The Lieutenant then determined that Petitioner was correctly charged, based upon the information contained in the incident report, and directed that Petitioner remain in the Special Housing Unit pending a Unit Discipline Committee ("UDC") hearing. (Doc. 8-1, at 33 ¶5.)
The UDC hearing commenced the following morning, during which time Petitioner asserted that the alleged weapon was "a plastic stick utilized in UNICOR for soldering." (Doc. 8-1, at 33 ¶6.) Petitioner also asserted that "[t]hat's the way it comes in UNICOR, " and "[t]he motor is part of my clippers." (Id.) The UDC found that Petitioner had committed the prohibited acts and referred the matter to the Discipline Hearing Officer ("DHO"). (Id.) On April 16, 2012, a UDC staff representative provided Petitioner with a notice of the DHO hearing and an advisement of his rights. (Doc. 8-1, at 34 ¶7, 41-42.) Petitioner acknowledged receipt of the notice and advisement. (Id.)
The UDC representative provided additional information with the DHO referral. Specifically, he provided the DHO with a memorandum of an interview he conducted with a UNICOR Assistant Factory Manager during which the Manager confirmed that the UNICOR tool found in Petitioner's cell made of hard plastic and was not to be removed from the UNICOR area. (Doc. 8-1, at 34 ¶8, 44.) He also provided a memorandum confirming that the crushed substance was indeed a medication prescribed to Petitioner, but which was only to be administered in pill form. ( Id., at 34 ¶8, 45.) The UDC representative furthermore provided pictures of the UNICOR tool and the other two devices found during the search of Petitioner's jail cell. ( Id., at 34 ¶8, 36-37.)
On April 24, 2012, the DHO convened a video conference disciplinary hearing. The DHO confirmed with Petitioner that he had received advance notice of the charges against him and that he was advised of his rights before the DHO. (Doc. 8-1, at 34 ¶9, 50.) The DHO also confirmed that Petitioner waived his right to have a staff representative, and again advised Petitioner of his rights, which Petitioner acknowledged, and read the incident report to him. (Id.) Petitioner denied the charges against him and indicated that he was ready to proceed to the hearing. (Id.) Petitioner stated that the crushed substance was an antacid, and not the medications identified in the incident report or in the memorandum submitted by the UDC representative; he stated that the "plastic found in his cell wasn't a weapon but rather a tool he removed from UNICOR"; he stated that he knew he wasn't supposed to remove the item from UNICOR but it wasn't intended to be a weapon: and he admitted possessing the stinger. ( Id., at 34 ¶10; 49.)
Petitioner did not request witnesses. (Doc. 8-1, at 35 ¶11, 50.) The DHO received as documentary evidence the Incident Report and Investigation, and the photographs and memorandums submitted by the UDC representative. ( Id., at 50.) The DHO found that Petitioner committed the prohibited acts of Possessing a Hazardous Tool, Code 108 and Possessing an Unauthorized Item. (Id.) The DHO found that Petitioner committed Code 108, a similar act to code 104, the code Petitioner was originally charged with. (Id.) The DHO found insufficient evidence to support a finding that Petitioner committed the prohibited act of Code 302. (Id.) The DHO also made the following specific findings in support of his decision
The reporting Officer's first hand eyewitness account. On 4-15-2012, at 6:30 p.m., the reporting officer searched your  cell in Yuma. During the search, the staff member found an altered hair trimmer motor affixed to a battery pack forming a tattoo gun along with several needles. Staff also found a manufactured heating device (commonly referred to as a "stinger") and a vial of crushed powder identified in the report as Wellbuterin. Also found was a sharpened plastic rod with a tip on one end and a tape handle on the other end.
The DHO reviewed the photo sheet depicting the sharpened plastic rod. The item depicted is capable of causing serious injuries and is capable of evading metal detection. The DHO took into consideration that the item is a tool obtained from UNICOR. You said you were aware that you were not supposed to remove the item from UNICOR but did anyway. You indicated during the hearing that you were using it for benign harmless purposes. However, the DHO observed the item depicted in the photo sheet and determined that the "tool" you took from UNICOR is capable of being used as a weapon. During the DHO's correctional experiences he has observed similar items used as weapons which had caused serious injury to inmates. Also, the memorandum provided by S. Gonzales provided evidence that the "tool" was made from hard plastic and sharp.
Based on the greater weight of evidence, the DHO finds you committed the prohibited act of Code 108, Possession of a Hazardous Tool, a similar act to the code the inmate was initially charged with, Code 104, Possessing a Dangerous Weapon. A hard plastic tool readily capable of being used as a stabbing type weapon was found in your possession.
The DHO considered your statement during the hearing. You admitted possessing a heating device manufactured to heat items (Stinger). The DHO reviewed the photo sheet which depicted a commonly inmate manufactured heating device. This item is commonly ...