United States District Court, D. Arizona
HONORABLE BRUCE G. MACDONALD UNITED STATES MAGISTRATE JUDGE
pending before the Court is Petitioner Reynaldo Vasquez
Rivera's pro se Petition Under 28 U.S.C. §
2241 for a Writ of Habeas Corpus by a Person in Federal
Custody (“Petition”) (Doc. 1). Respondent has
filed a Return and Answer (“Answer”) (Doc. 13).
Petitioner did not file a Reply. The Petition is ripe for
initial matter, Petitioner named Louis Winn, Warden of the
United States Penitentiary-Tucson (“USP-Tucson”)
as the Respondent. See Petition (Doc. 1). The Court
takes judicial notice, however, that Louis Winn 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
FACTUAL AND PROCEDURAL BACKGROUND
time Petitioner filed his Petition (Doc. 1), Petitioner was
an inmate incarcerated at USP Tucson in Tucson, Arizona.
See Petition (Doc. 1). Petitioner was released from
custody on September 6, 2016. See Fed. Bureau of
Prisons (“BOP”) Inmate Locater,
https://www.bop.gov/inmateloc/ (last visited July
March 19, 2014 at approximately 10:20 a.m., Special
Investigative Support Technician (“SIS
Technician”) Madrid conducted a pat search on inmate
Reynaldo Vazquez-Rivera. Response (Doc. 13), Talplacido Decl.
(Exh. “A”), Incident Report No. 2561169 (Rewrite)
(Attach. “5”) at 8 & Discipline Hearing
Report (Attach. “5”) at 2. SIS Technician Madrid
“found what appeared to be a cell phone charger.”
Response (Doc. 13), Exh. “A”, Attach.
“5” at 2 & 8. Petitioner stated that it was
to charge his MP3 player; however, SIS Technician Madrid
demonstrated that the charger did not fit the MP3 player
port. Response (Doc. 13), Exh. “A”, Attach.
“5” at 2 & 8. Subsequently, SIS Technician
Madrid and SIS Technician A. Cristinzio conducted a cell
search in F-2 cell 110. Response (Doc. 13), Exh.
“A”, Memo. to Operations Lieut. 3/19/2014
(Attach. “5”) at 13. During this search,
“one black Alcatel cell phone was found in a box of
Tide laundry soap, within the common area of the cell.”
Id., Exh. “A”, Attach. “5”
at 13. SIS Technician A. Cristinzio notified the Operations
Lieutenant, “and the cell phone was placed in the SIS
evidence safe.” Id., Exh. “A”,
Attach. “5” at 13. SIS Technician D. Madrid
charged Petitioner with the prohibited act of Possession of a
Hazardous Tool in violation of Code 108. Id., Exh.
“A”, Attach. “5” at 8. Later the same
day, Lieutenant M. Castro delivered the incident report to
Petitioner. Id.; see also Petition (Doc. 1)
at 13. Lieutenant Castro also investigated the incident and
advised Petitioner of his rights. Response (Doc. 13), Exh.
“A”, Attach. “5” at 1, 9. During
Lieutenant Castro's investigation, petitioner stated,
“The phone and charger was mine. My celly knew nothing
about.” Id. Exh. “A”, Attach.
“5” at 9. Petitioner did not request a staff
representative. Id. Lieutenant Castro forwarded the
Incident Report to the Unit Discipline Committee
(“UDC”) for further disposition. Id.
March 25, 2014, the UDC conducted its hearing. Response (Doc.
13), Talplacido Decl. (Exh. “A”), Incident Report
No. 2561169 (Rewrite) (Attach. “5”) at 8.
Petitioner stated “I take full responsibility. My
cellmate didn't know anything.” 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 “any available sanctions
that will deter future behavior.” Id. Also on
March 25, 2014, Petitioner was provided with a Notice of
Discipline Hearing Before the DHO and his rights at that
hearing. Response (Doc. 13), Exh. “A, ” Attach.
“5” at 4- 5. Petitioner indicated that he did not
wish to have a staff representative at his DH oh hearing.
Id., Exh. “A, ” Attach. “5”
22, 2014, petitioner had a DHO hearing before DHO T.
Phillips. See Response (Doc. 13), Exh. “A,
” Discipline Hearing Report (Attach. “5”)
at 1-3. DHO Phillips considered the evidence photographs;
chain of custody log; staff memorandum; and Petitioner's
admissions to the investigating Lieutenant, the UDC, and the
DHO. Id., Exh. “A, ” Attach.
“5” at 1-2. Accordingly, DHO Phillips determined,
“[b]ased on the admission and weight of the evidence,
” that petitioner “committed the prohibited
act(s) of Possession, manufacture, introduction, or loss of a
hazardous tool, Code(s) 108.” Id., Exh.
“A, ” Attach. “5” at 2. DHO Phillips
imposed sanctions totaling thirty (30) days Disciplinary
Segregation, forty-one (41) days Disallowance of Good Conduct
Time, one year lost phone privileges, one year lost
commissary, and one year lost visitation. Id., Exh.
“A, ” Attach. “5” at 3. On August 4,
2014, DHO Phillips signed the DHO report and it was delivered
to Petitioner on the same date. Id.
September 9, 2014 Petitioner filed his Regional
Administrative Remedy Appeal regarding Disciplinary Case No.
2561169. Response (Doc. 13), Exh. “A, ” Regional
Administrative Remedy Appeal (Attach. “6”) at 7.
The Regional Director denied this appeal. Id., Exh.
“A, ” Attach. “6” at 5. Petitioner
did not appeal to the General Counsel's
Office. See id., Exh. “A, ”
Attach. “6.” On August 26, 2014, Petitioner filed
his Petition Under 28 U.S.C. § 2241 for a Writ of Habeas
Corpus by a Person in Federal Custody (Doc. 1). Petitioner
asserts that the incident report in this matter was
“inappropriately re-written in violation of the [C]ode
of [F]ederal [R]egulation.” Petition (Doc. 1) at 4.
Petitioner further asserts that this “violation denied
the Petitioner and the right to receive notice of the charges
within 24 hours of that incident as required by
Wolff.” Id. Petitioner also alleges
that “[t]he warden has violated the law of settled
expectation by refusing to release the petitioner from the
prison [ ] and the continued detention in the S[pecial]
H[ousing] U[nit] constitute illegal detention.”
Id. at 5. Petitioner seeks reversal of the
disciplinary conviction, a return of forty-one (41) days good
time, and immediate release from the Special Housing Unit.
courts are always ‘under an independent obligation to
examine their own jurisdiction, ' . . . and a federal
court may not entertain an action over which it has no
jurisdiction.” Hernandez v. Campbell, 204 F.3d
861, 865 (9th Cir. 2000) (quoting FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215, 231 (1990)). “Generally,
motions to contest the legality of a sentence must be filed
under § 2255 in the sentencing court, while petitions
that challenge the manner, location, or conditions of a
sentence's execution must be brought pursuant to §
2241 in the custodial court.” Id. at 864.
Therefore, before proceeding to any other issue a court must
establish whether a habeas petition is filed pursuant to
§ 2241 or § 2255 to determine whether jurisdiction
is proper. Id. at 865.
Petitioner does not claim that the sentencing court imposed
an illegal sentence; rather he seeks relief with respect to
disciplinary proceedings while incarcerated at a federal
facility. As such, Petitioner is challenging the manner,
location or condition of the execution of his sentence.
See e.g., Rogers v. United States, 180 F.3d 349 (1st
Cir. 1999) (Section 2241 petition is appropriate vehicle to
challenge the correctness of a jail-time credit
determination, once administrative remedies have been
exhausted); Nettles v. Grounds, 830 F.3d 922, 927
(9th Cir. 2016) (en banc), (“[c]hallenges to the
validity of any confinement or to the particulars affecting
its duration are the province of habeas corpus[.]”
(quoting Muhammad v. Close, 540 U.S. 749, 750, 124
S.Ct. 1303, 158 L.Ed.2d 32 (2004)); Tucker v.
Carlson, 925 F.2d 330, 332 (9th Cir. 1991) (a
prisoner's challenge to the “manner in which his
sentence was executed . . . [is] maintainable only in a
petition for habeas corpus filed pursuant to 28 U.S.C. §
2241”); Weinstein v. U.S. Parole Comm'n,
902 F.2d 1451, 1452 (9th Cir. 1990) (“The district
court had jurisdiction pursuant to 28 U.S.C. § 2241 to
review a claim by a federal prisoner challenging a decision
of the United States Parole Commission”). Such a
challenge must be brought pursuant to § 2241 in the