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Sanchez-Alaniz v. Shartle

United States District Court, D. Arizona

June 17, 2015

Martin Sanchez-Alaniz, [1] Petitioner,
v.
J. T. Shartle, Warden, Respondent.

REPORT AND RECOMMENDATION

BRUCE G. MACDONALD, Magistrate Judge.

Currently pending before the Court is Petitioner Martin Sanchez-Alaniz's pro se First Amended Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody ("Petition") (Doc. 18). Respondent has filed his Return and Answer to Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus and Motion to Dismiss Petition ("Response") (Doc. 38). Petitioner filed his Reply and Petitioners [sic] Motion for Summary Judgment (Doc. 50). Also pending before the Court is Petitioner's Motion for Summary Judgment and Motion to Strike (Doc. 51) and Motion for Waiver of Form Requirements (Doc. 58).

As an initial matter, Petitioner named Craig Apker, Warden of the United States Penitentiary-Tucson ("USP-Tucson") as the Respondent. See Petition (Doc. 18). The Court takes judicial notice, however, that Craig Apker is no longer warden of USP-Tucson. As such, the Court will substitute the new Warden of USP-Tucson, J. T. Shartle, as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, [2] this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Petition (Doc. 1).

I. PROCEDURAL BACKGROUND

Petitioner is currently incarcerated at USP-Tucson, serving a 108-month sentence for Re-entry of a Deported Alien in violation of 8 U.S.C. § 1326(a) & (b)(2). See Response (Doc. 38), Talplacido Decl. (Exh. "A"), Judgment & Commitment 3/6/2012 (Attach. "2") & Sentence Monitoring Computation Data (Attach. "3"). Petitioner committed the underlying offense which gave rise to his incarceration on July 14, 2011. Id., Exh. "A, " Attach. "2" at 1 & Attach. "3" at 1. Petitioner's projected release date is October 4, 2019 via Good Conduct Time ("GCT") release. Id., Exh. "A, " Attach. "3" at 1. Petitioner filed a First Amended Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody on April 21, 2014. See Petition (Doc. 18).

Petitioner challenges a disciplinary conviction that resulted in his loss of good time credits. Petitioner alleges that "administrative staff has [sic] illegally forfeited [sic] a grand total of 108 days of NONVESTED GOOD TIME CREDITS" in violation of his constitutional rights. Petition (Doc. 18) at 4. Petitioner requests this Court order Respondents to return the 108 days of good time credits. Id. at 6.

II. FACTUAL BACKGROUND

This matter arises from four (4) separate Incident Reports. Petitioner seeks relief from the aggregate punishment of those proceedings. Petitioner instituted the current proceeding on October 25, 2013. See Petition's Writ of Habeas Corpus 28 U.S.C. § 2241 (Doc. 1).

A. Incident Report Number 2322016

On June 30, 2012 at approximately 5:50 p.m., Correctional Officer ("CO") Derrington was feeding the evening meal in the Special Housing Unit ("SHU"), when Petitioner blocked the food slot and demanded a no egg tray. Response (Doc. 38), Exh. "A, " Incident Report No. 2322016 (Attach. "6") at 4. CO Derrington ordered Petitioner to allow him to close the food slot, but he refused. Id. Petitioner then threw his food tray at CO Derrington, who avoided being hit. Id. Petitioner then used a long piece of metal from the shower stall, put it through the food slot, and knocked the remaining food trays from CO Derrington's cart. Id. CO Derrington removed the weapon and notified the Operations Lieutenant. Id. CO Derrington charged Petitioner with the prohibited act of Attempt to Assault Any Person in violation of Code 224A. Response (Doc. 38), Exh. "A, " Attach. "6" at 4. The following day, Lieutenant L. Williams delivered the incident report to Petitioner. Id. Lieutenant Williams also investigated the incident and advised Petitioner of his rights. Id., Exh. "A, " Attach. "6" at 5. During Lieutenant Williams's investigation, Petitioner stated that "they were trying to give me Spaghetti as the meal and I do not eat eggs." Id. Petitioner did not request any witnesses. Id. Lieutenant Williams forwarded the Incident Report to the Unit Discipline Committee ("UDC") for further disposition. Id.

On July 5, 2012, the UDC conducted its hearing. Response (Doc. 38), Exh. "A, " Attach. "6" at 6.[3] At the hearing, Petitioner was advised of his rights, and stated that he understood those rights. Id. Petitioner's only statement was "no comment." Id. Based on the severity of the alleged misconduct, the UDC referred the matter to the Discipline Hearing Officer ("DHO") for final disposition, and if Petitioner was found guilty, recommended sanctions including loss of Good Conduct Time ("GCT"), loss of telephone privileges, and loss of commissary privileges. Id. The UDC also provided Petitioner with a Notice of Discipline Hearing Before the DHO and his rights at that hearing. Id., Exh. "A, " Attach. "6" at 7-8. Petitioner indicated that he wished to have a staff representative, as well as a witness at his DHO hearing. Id., Exh. "A, " Attach. "6" at 8. Later, Petitioner apparently signed a statement indicating that he had decided against utilizing a staff representative at the DHO hearing. Id., Exh. "A, " Attach. "6" at 8-9.

On October 10, 2012, Petitioner had a DHO hearing before DHO A. Truex. See Response (Doc. 38), Exh. "A, " DHO Report for Incident Report No. 2322016 (Attach. "6") at 1-3. DHO Truex noted that on July 5, 2012, Counselor H. Preston had advised Petitioner of his rights before the DHO, and he indicated that he understood them. Id., Exh. "A, " Attach. "6" at 1. Petitioner waived his right to a staff representative at the DHO hearing. Id. Petitioner also waived his requested witnesses, stated that he understood his rights before the DHO, and "admitted guilt to attempting to assault an officer by throwing the lid to his food tray at him." Id. Petitioner declined to make any further statement, and did not submit any documentary evidence. Id.

DHO Truex considered the Incident Report; Petitioner's admission at the DHO hearing to committing the offense; and Petitioner's silence during the investigation and before the UDC, drawing an adverse inference therefrom. Response (Doc. 38), Exh. "A, " Attach. "6" at 2. DHO Truex also noted that upon commitment to the BOP, Petitioner participated in the Admission and Orientation ("A&O") program, and was advised of BOP rules and regulations, as well as provided an A&O handbook. Id. Accordingly, DHO Truex determined sufficient facts existed to find Petitioner guilty of the prohibited act of Attempting to Assault Any Person (Code 224A). Id. DHO Truex imposed sanctions totaling thirty (30) days Disciplinary Segregation, twenty-seven (27) days Disallowance of Good Conduct Time, and ninety (90) days loss of telephone privileges to begin on January 8, 2013, consecutive to Incident Report Number 2341527. Id. On November 30, 2012, DHO Truex signed the DHO report and it was delivered to Petitioner on December 7, 2012. Id., Exh. "A, " Attach. "6" at 3.

On February 15, 2013, Petitioner filed his Regional Administrative Remedy Appeal regarding Incident Report Number 2322016. Petition (Doc. 18) at 13. On March 19, 2013, Petitioner received a denial of his Regional Appeal. Response (Doc. 38), Attach. "A, " Admin. Remedy Index & Copies of Relevant Admin. Remedies (Attach. "7") at 145, 146. On June 4, 2013, Petitioner filed a Central Office Administrative Remedy Appeal to the Director. Petition (Doc. 18) at 12. In his appeal, Petitioner explains that although he received the Regional Director's response on March 19, 2013, he was transferred on March 20, 2013 to USP-Tucson. Id. The record is unclear as to when Petitioner received his legal papers and other personal property. A note by Petitioner on an Administrative Remedy Receipt dated February 15, 2013, regarding Incident Report No. 2322016, indicates that Petitioner received the Regional Appeal decision on June 23, 2013. Response (Doc. 38), Exh. "A, " Attach. "7" at 80.[4] On July 2, 2013, Petitioner resubmitted his Central Office Appeal, which was denied due to Petitioner's failure to include a staff memo excusing the untimeliness on July 5, 2013. Id., Exh. "A, " Attach. "7" at 57. On September 17, 2013, Petitioner wrote a letter to the Central Office Director indicating that he had been unsuccessfully attempting to obtain a "late memo" from prison staff, and accused BOP of preventing him from exhausting his administrative remedies. Id., Exh. "A, " Attach. "7" at 101. On March 20, 2014, Unit Manager S. Hansen issued a Memorandum for Administrative Remedy Clerk indicating that Petitioner had arrived at USP-Tucson on December 2, 2013, and received his personal property on or about May 16, 2013. Petition (Doc. 18) at 7. On June 23, 2014, Petitioner's Central Office Appeal was accepted. Response (Doc. 38), Exh. "A, " Attach. "7" at 70. No response was issued for Petitioner's Central Office Appeal. Response (Doc. 38) at 7.

B. Incident Report Number 2323351

On July 4, 2012 at approximately 6:15 p.m., CO K. Luse "was passing out the evening meal on A-2 Range." Response (Doc. 38), Exh. "A, " Incident Report No. 2323351 (Attach. "8") at 4. When CO Luse attempted to hand the evening meal through the food slot to Petitioner, Petitioner refused and "placed his arm on the food slot preventing it from being closed." Id. Petitioner stated that the noodles contained eggs, to which he is allergic, and demanded CO Luse call the kitchen. Id. CO Luse and CO Williamson informed Petitioner that the kitchen had been notified prior to the delivery of the hot food tray, and the food service staff verified that the noodles did not contain any eggs. Id. Petitioner was ordered to remove his arm from the food, but he refused. Id. Petitioner became irate and used profanity, and as CO Luse proceeded down the range toward the next cell, Petitioner threw milk, trays, books, and trash in his direction. Response (Doc. 38), Exh. "A, " Attach. "8" at 4. CO Luse was struck in the upper body by a book thrown by Petitioner through his food slot. Id. CO Luse charged Petitioner with the prohibited act of Assaulting any Person, Refusing to obey an order of any staff member in violation of Code 224. Id. The following day, Lieutenant A. Phillips delivered the incident report to Petitioner. Id. Lieutenant Phillips also investigated the incident and advised Petitioner of his rights. Id., Exh. "A, " Attach. "8" at 5. During Lieutenant Phillips's investigation, Petitioner stated that he was "throwing items at the food cart trying to knock the food trays off... not trying to hit the officer." Id. Petitioner further stated that "he was trying to get the Officer to get a meal replacement for the spaghetti, stating it is an egg product." Id. Lieutenant Phillips forwarded the Incident Report to the UDC for further disposition. Id.

On July 6, 2012, the UDC conducted its hearing. Response (Doc. 38), Exh. "A, " Attach. "8" at 6. At the hearing, Petitioner was advised of his rights, and acknowledged the same. Id. Petitioner's only statement was "no comment." Id. Based on the severity of the misconduct, the UDC referred the matter to the DHO for final disposition, and if Petitioner was found guilty, recommended sanctions including loss of GCT, disciplinary segregation, and loss of commissary privileges. Id. The UDC also provided Petitioner with a Notice of Discipline Hearing Before the DHO and his rights at that hearing. Id., Exh. "A, " Attach. "8" at 7-8. Petitioner indicated that he wished to have a staff representative, but did not request any witnesses, at his DHO hearing. Response (Doc. 38), Exh. "A, " Attach. "8" at 8. Later, Petitioner apparently decided against utilizing a staff representative at the DHO hearing. Id., Exh. "A, " Attach. "8" at 8-9.

On October 10, 2012, Petitioner had a DHO hearing before DHO A. Truex. See Response (Doc. 38), Exh. "A, " DHO Report for Incident Report No. 2323351 (Attach. "8") at 1-3. DHO Truex noted that on July 6, 2012, Counselor H. Preston had advised Petitioner of his rights before the DHO. Id., Exh. "A, " Attach. "8" at 1. At the DHO hearing, Petitioner indicated that he understood his rights, waived his right to a staff representative at the DHO hearing, and requested no witnesses. Id. Petitioner "admitted guilt to assaulting an Officer by throwing a book at him and hitting him in [sic] the upper side of his body." Id. Petitioner declined to make any further statement, and did not submit any documentary evidence. Id.

DHO Truex considered the Incident Report; Petitioner's admission at the DHO hearing to committing the offense; Petitioner's admission during the investigation; and Petitioner's silence before the UDC, drawing an adverse inference therefrom. Id., Exh. "A, " Attach. "8" at 2. DHO Truex also noted that upon commitment to the BOP, Petitioner participated in the A&O program, and was advised of BOP rules and regulations, as well as provided an A&O handbook. Id. Accordingly, DHO Truex determined sufficient facts existed to find Petitioner committed the prohibited act of Assaulting Any Person (Code 224). Id. DHO Truex imposed sanctions totaling thirty (30) days Disciplinary Segregation, twenty-seven (27) days disallowance of GCT, and one hundred twenty (120) days loss of telephone privileges to begin on April 8, 2013, consecutive to Incident Report Numbers 2341527 and 2322016. Id., Exh. "A, " Attach. "8" at 3. On November 30, 2012, DHO Truex signed the DHO report and it was delivered to Petitioner on December 7, 2012. Id.

On February 15, 2013, Petitioner filed his Regional Administrative Remedy Appeal regarding Incident Report Number 2323351. Petition (Doc. 18) at 23; see also Response (Doc. 38), Exh. "A, " Attach. "7" at 52. Petitioner's Regional Appeal was denied.[5] Petition (Doc. 18) at 24. On May 30, 2013, Petitioner filed a Central Office Administrative Remedy Appeal. Petition (Doc. 18) at 22. In his appeal, Petitioner explains that although he received the Regional Director's response on March 19, 2013, he was transferred on March 20, 2013. Id. On June 5, 2013, Petitioner's Central Office Appeal was denied as untimely. Id. at 21; see also Response (Doc. 38), Exh. "A, " Attach. "7" at 55. On August 19, 2013, Petitioner resubmitted his Central Office Appeal, which was denied on August 29, 2013, because it lacked staff verification regarding its untimeliness. Id., Exh. "A, " Attach. "7" at 59. On September 27, 2013, Petitioner again resubmitted his Central Office Appeal, which was denied on October 17, 2013, because it lacked staff verification regarding its untimeliness. Id., Exh. "A, " Attach. "7" at 60. On November 12, 2013, Petitioner resubmitted his Central Office Appeal, which was again denied on November 18, 2013, because it lacked staff verification regarding its untimeliness. Id., Exh. "A, " Attach. "7" at 63. On April 20, 2014, Petitioner resubmitted his Central Office Appeal, with a March 20, 2014 memorandum containing staff verification that his prior untimely submissions were not his fault. Petition (Doc. 18) at 20. Petitioner's appeal was rejected, because "photocopies of the first page of [his] BP-11 form [were] not acceptable." Response (Doc. 38), Exh. "A, " Attach. "7" at 66. On June 23, 2014, Petitioner's Central Office Appeal was accepted. Response (Doc. 38), Exh. "A, " Attach. "7" at 69. No response was issued. Response (Doc. 38) at 9.

C. Incident Report Number 2323375

On July 4, 2012 at approximately 6:15 p.m., CO L. Williamson handed his keys to CO Luse and "proceeded down A-2 range to notify Inmate Sanchez-Alaniz, Martin Reg. #XXXXX-XXX what food service said about his dinner meal." Response (Doc. 38), Exh. "A, " Incident Report No. 2323375 (Attach. "9") at 4. CO Williamson approached Petitioner's cell # 215, and noted that the food slot was open and Petitioner had his arm resting on the slot. Id. CO Williamson informed Petitioner "that food service said the dinner meal contained no eggs, [Petitioner] said[, ] they [sic] are a FUCKING lie and I'm tired of them playing Fucking games." Id. Petitioner then picked up a Styrofoam cup filled with red liquid and threw it at CO Williamson, striking him on his right shoulder. Id. CO Williamson notified the Special Housing Lieutenant of the incident. Id. CO Williamson charged Petitioner with the prohibited act of Assaulting Any Person, Refusing to obey an order of any staff member in violation of Code 224. Response (Doc. 38), Exh. "A, " Attach. "9" at 4. The following day, Lieutenant A. Phillips delivered the incident report to Petitioner. Id. Lieutenant Phillips also investigated the incident and advised Petitioner of his rights. Id., Exh. "A, " Attach. "9" at 5. During Lieutenant Phillips's investigation, Petitioner indicated that he understood his rights, and stated "that he did throw a cup of Kool-Aid on the Officer due to being mad about his meal... [and] that he was trying to get the Officer to get a meal replacement for the spaghetti, stating it is an egg product." Id. Lieutenant Phillips forwarded the Incident Report to the UDC for further disposition. Id.

On July 6, 2012, the UDC conducted its hearing. Response (Doc. 35), Exh. "A, " Attach. "9" at 6. At the hearing, Petitioner was advised of his rights, and acknowledged the same. Id. Petitioner's only statement was "no comment." Id. Based on the severity of the misconduct, the UDC referred the matter to the DHO for final disposition, and if Petitioner was found guilty, recommended sanctions including loss of GCT, disciplinary segregation, and loss of telephone privileges. Id. The UDC also provided Petitioner with a Notice of Discipline Hearing Before the DHO and his rights at that hearing. Id., Exh. "A, " Attach. "9" at 7-8. Petitioner indicated that he wished to have a staff representative at his DHO hearing, but no witnesses. ...


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