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Weakley v. Shartle

United States District Court, D. Arizona

September 15, 2017

Paul Raymond Weakley, Petitioner,
v.
J. T. Shartle, Warden, Respondent.

          ORDER

          Hon. Bruce G. Macdonald, United States Magistrate Judge

         Currently pending before the Court is Petitioner Paul Raymond Weakley’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 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. 12). Petitioner filed his Response to Defendant’s Motion to Dismiss (Doc. 14).

         As an initial matter, Petitioner named Louis Winn, Warden of the United States Penitentiary–Tucson (“USP–Tucson”) as the Respondent. See Amended Petition (Doc. 10). 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 Procedure.

         I. PROCEDURAL BACKGROUND

         Petitioner is currently incarcerated at the United States Penitentiary (“USP”) in Tucson, Arizona. See Fed. Bureau of Prisons (“BOP”) Inmate Locater, https://www.bop.gov/inmateloc/ (last visited September 5, 2017). Petitioner is serving a one hundred twenty (120) month sentence from the Middle District of Pennsylvania for being a Felon in Possession of Firearms in violation of 18 U.S.C. §922(g)(1) and a concurrent life sentence for Conspiracy Relating to Racketeer Influenced and Corrupt Organizations in violation of 18 U.S.C. § 1962(d). See Answer (Doc. 12), Huband Decl. (Exh. “A”), United States District Court (“USDC”) M.D. Pa., Case No. 3:CR-04-161, Judgment in a Criminal Case (Attach. “2”) & USDC M.D. Pa., Case No. 3:CR-08-038, Judgment in a Criminal Case (Attach. “4”). In light of Petitioner’s life sentence, he has no projected release date. See Answer (Doc. 12), Huband Decl. (“Exh. “A”), Public Information Inmate Data (Attach. “1”).

         Petitioner challenges a disciplinary conviction that resulted in his loss of good time credits. Petitioner alleges twenty-two (22) grounds for relief as follows: (1) the incident report was rewritten, and as such was not reviewed with him within twenty-four (24) hours after staff became aware of the incident, in violation of Petitioner’s due process rights. Additionally, there is no policy or statute which authorizes a “rewrite”; (2) the rewritten incident report was reviewed with Petitioner allegedly nine (9) days late, in violation of his due process rights; (3) the Bureau of Prisons (“BOP”) allegedly violated its own policy by failing to notify Petitioner “immediately” regarding a delay in his Unit Discipline Committee (“UDC”) hearing, in violation of his due process rights; (4) Petitioner’s UDC hearing was allegedly held thirty-five (35) days late, in violation of his due process rights; (5) Petitioner’s staff representative informed him, at the time of the Discipline Hearing Officer (“DHO”) hearing, that the video Petitioner requested was not available, as did DHO Petricka. Petitioner alleges that this denial of his right to present evidence in his defense, violated his due process rights; (6) after the denial of Petitioner’s request for the video evidence, he complained to DHO Petricka that his staff representative was ineffective, and requested a new representative. This request was denied, and Petitioner alleges that it violated his due process rights; (7) Petitioner was allegedly not allowed to present the evidence he sought to introduce, in violation of his due process rights; (8) surveillance video is recorded over every thirty (30) days, and due to the delays in the disciplinary process Petitioner did not go before the DHO prior to the video being destroyed, in violation of his to process right; (9) Petitioner requested at the DHO hearing to review, or have his staff representative review, the “investigating officer’s report.” DHO Petricka denied this request, allegedly in violation of Petitioner’s due process rights; (10) the Alco-Sensor was used to analyze the suspected liquid, which Petitioner asserts is only a breathalyzer, and its use in this case violated his due process rights; (11) DHO Petricka allegedly spoke with the special investigations section, and conducted her own investigation. Allegedly Petitioner and his staff representative were not allowed to review this evidence, thereby violating his due process rights; (12) because statute and policy for bid that DHO from acting as an “investigator,” which DHO Petricka allegedly did, Petitioner alleges his due process rights were violated; (13) DHO Petricka did not properly consider Petitioner’s arguments regarding accessibility of the closet and his proclaimed innocence, depriving him of a fair and impartial hearing; (14) Petitioner’s cellmate was given an identical incident report, but found “not guilty,” demonstrating that Petitioner did not receive a “fair and impartial” hearing; (15) Petitioner filed a BP-10 regarding the DHO’s alleged refusal to issue a report, but allegedly did not receive a receipt or timely response, in violation of his due process rights; (16) Petitioner filed a second BP-10 and alleges that the regional office sent a backdated response, in violation of his due process rights; (17) because the regional office did not respond to Petitioner’s allegedly properly filed BP-10, DHO appeal, his due process rights were violated; (18) also because the regional office did not timely respond, Petitioner asserts that his BP-11 was denied in violation of his due process rights; (19) because D.C. allegedly did not timely respond to Petitioner’s BP-11 DHO appeal, Petitioner alleges a due process violation; (20) because the Central Office did not respond to Petitioner’s BP-11 DHO appeal, petitioner alleges a due process violation; (21) because both the Western Region and Central Office administrative remedy coordinators failed to respond to Petitioner’s appeals, his due process rights were violated; and (22) the BOP is unlawfully collecting restitution from Petitioner via the Inmate Financial Responsibility Program (“IFRP”). See Petition (Doc. 1). Petitioner seeks an order directing the BOP to stop collecting IFRP payments from Petitioner, change his IFRP status from “refused” to “exempt,” to expunge Incident Report No. 2349546, and to remove all associated sanctions. Petition (Doc. 1) at 9.

         II. FACTUAL BACKGROUND

         A. Incident Report No. 2349546

         On September 10, 2012, at approximately 10:30 a.m., Senior Officer (“SO”) Hart was contacted by Special Investigative Support (“SIS”) “to check the pipe chase areas around cells 113 to 119.” Response (Doc. 12), Huband Decl. (Exh. “A”), Incident Report No. 2349546 (Attach. “6”) at 6; Petition (Doc. 1) Incident Report No. 2349546 9/12/2012 (Exh. “2”). SO Hart reported that he “tried to open pipe chase door 158-G, located to the left of cell 114[;] [t]he pipe chase lock was blocked preventing the key from fully entering the lock.” Response (Doc. 12), Exh. “A,” Attach. “6” at 6; see also Petition (Doc. 1), Exh. “2.” SO Hart “secured cell 114 in order to secure the evidence if contraband was found in the pipe[,] [and] . . . called the lock shop to have them come and open the lock on the pipe chase door.” Response (Doc. 12), Exh. “A,” Attach. “6” at 6; see also Petition (Doc. 1), Exh. “2.” Petitioner and his cellmate were identified as the occupants of cell 114. Response (Doc. 12), Exh. “A,” Attach. “6” at 6; see also Petition (Doc. 1), Exh. “2.” SO Hart reported “approximately 25 gallons of Prison Made Intoxicants in that pipe chase.” Response (Doc. 12), Exh. “A,” Attach. “6” at 6; see also Petition (Doc. 1), Exh. “2.” SO Hart further reported “[t]he bags of intoxicants were tied to the hole protruding from the flush button located in cell 114.” Response (Doc. 12), Exh. “A,” Attach. “6” at 6; see also Petition (Doc. 1), Exh. “2.” SO Hart described the flush button plate as “bent and worn” and “[t]he screws holding the plate on were easy to unscrew and were stripped out.” Response (Doc. 12), Exh. “A,” Attach. “6” at 6; see also Petition (Doc. 1), Exh. “2.” SO Hart stated “[i]t was apparent the bags of intoxicants were put in there from the flush button in cell 114.” Response (Doc. 12), Exh. “A,” Attach. “6” at 6; see also Petition (Doc. 1), Exh. “2.” “Prison made intoxicants were tested with ALCO Sensor #3 and tested over .400.” Response (Doc. 12), Exh. “A,” Attach. “6” at 6; see also Petition (Doc. 1), Exh. “2.” SO Hart wrote an incident report detailing the discovery of intoxicants and charging Petitioner with a violation of Code 113, Possession of any narcotics, marijuana, drugs, alcohol, intoxicants, or related paraphernalia, not prescribed for the individual by medical staff. Response (Doc. 12), Exh. “A,” Attach. “6” at 6; see also Petition (Doc. 1), Exh. “2.” On September 22, 2012, Lieutenant F. Turner delivered the incident report to Petitioner. Response (Doc. 12), Exh. “A,” Attach. “6” at 8. Lieutenant Turner also investigated the incident, and advised Petitioner of his rights. Response (Doc. 12), Exh. “A,” Attach. “6” at 8. During Lieutenant Turner’s investigation, Petitioner chose not to make a statement, and displayed a fair attitude. Id. Lieutenant Turner forwarded the Incident Report to the Unit Discipline Committee (“UDC”) for further disposition. Id.

         On October 24, 2012, the UDC conducted its hearing. Response (Doc. 12), Huband Decl. (Exh. “A”), Discipline Hearing Report & Incident Rpt. No. 2349546 (Attach. “6”) at 1, 6. At the hearing, Petitioner was advised of his rights, and received a copy of the advisement of rights form. Id., Exh. “A,” Attach. “6” at 1. At the UDC hearing Petitioner stated that “Due process was not followed” and that “[t]he delay notice was sent after the delay.” Id., Exh. “A,” Incident Rpt. No. 2349546 (Attach. “6”) at 6. 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”) and disciplinary segregation. Id. The UDC Case Manager M. County also provided Petitioner his Advisement of Incident Report Delay, Notice of Discipline Hearing Before the DHO, and Disciplinary Hearing Rights. Id., Exh. “A,” DHO Packet for Incident Rpt. No. 2349546 (Attach. “6”) at 9–13. Petitioner indicated that he wished to have a staff representative at his DHO hearing. Response (Doc. 12), Huband Decl. (Exh. “A”), Attach. “6” at 9, 11.

         On November 1, 2012, Petitioner had a DHO hearing before DHO V. Petricka. See Response (Doc. 12), Exh. “A,” Discipline Hearing Report (Attach. “6”) at 1–3. DHO Petricka noted that on October 24, 2012, Case Manager M. County had advised Petitioner of his rights before the DHO, and he had received a copy of those rights. Id., Exh. “A,” Attach. “6” at 1. Petitioner had requested Counselor D. McMillan as his staff representative. Id., Exh. “A,” Discipline Hearing Report & Notice of Discipline Hearing Before the DHO (Attach. “6”) at 1, 11. Petitioner did not request any witnesses, stated that he understood his rights before the DHO, and denied guilt. Id., Exh. “A,” Discipline Hearing Report (Attach. “6”) at 2. Petitioner stated that “[h]e was in the cell for approximately 4 months[;] Forrest was in there about a month prior to this incident[;] [and] [Petitioner] ha[d] issues with the time frames.” Id.

         DHO Petricka considered the Incident Report; Petitioner’s denial of guilt during the DHO proceeding; Petitioner’s staff representative’s statement regarding the lack of availability of video evidence; and location of the intoxicants. Response (Doc. 12), Exh. “A,” Discipline Hearing Report (Attach. “6”) at 2. DHO Petricka noted that she “addressed the time frame issues that inmate Weakley was concerned about.” Id. DHO Petricka further noted “that although inmate Weakley denied the charges against him, the institution policy holds all inmates accountable for all items in their areas of responsibility which includes any areas that are accessible through fixtures in the cell; in this case the pipe chase that is accessible through the flush button.” Id. Accordingly, DHO Petricka determined, “[b]ased on the greater weight of the evidence,” that Petitioner “committed the prohibited act of Possession of any narcotics, marijuana, drugs, alcohol, intoxicants, or related paraphernalia, not prescribed for the individual by the medical staff, Code 113.” Id. DHO Petricka imposed sanctions totaling ninety (90) days Disciplinary Segregation, forty-one (41) days Disallowance of Good Conduct Time, one (1) year of lost commissary, and a $200.00 fine. Id. On December 7, 2012, DHO Petricka signed the DHO report and it was delivered to Petitioner on December 9, 2012. Response (Doc. 12), Exh. “A,” Discipline Hearing Report (Attach. “6”) at 3.

         B. Administrative Remedy Process for Incident Report No. 2349546

         On November 22 2012, Petitioner filed his Regional Administrative Remedy Appeal (BP-10), which was received on November 23, 2012 and designated Case No. 714567-R1. Petition (Doc. 1), Regional Administrative Remedy Appeal 11/22/2012 (Doc. 1-1, Exh. “4”) at 4; see also Response (Doc. 12), Huband Decl. (Exh. “A”), Administrative Remedy Generalized Retrieval (Attach. “7”) at 45 & Regional Remedy Appeal 11/22/2012 (Attach. “8”). On January 30, 2013, Regional Director Juan D. Castillo issued a response to Administrative Remedy No. 714567-R1. See Response (Doc. 12), Huband Decl. (Exh. “A”), Admin. Remedy No. 714567-R1 Castillo Ltr. 1/30/2013 (Attach. “9”). Regional Director Castillo recognized Petitioner’s claim that he had not received a DHO Report, but noted that a copy of that report had been issued to Petitioner on December 9, 2012. Id., Exh. “A,” Attach. “9” at 1. Regional Director Castillo further noted that Petitioner had not specified the relief sought. Id., Exh. “A,” Attach. “9” at 1. Nevertheless, Regional Director Castillo reviewed the disciplinary actions of the UDC and DHO and determined that Petitioner’s allegation were without merit; however, correction of Section 7 of the DHO report was ordered corrected, because it indicated that Petitioner had been found guilty of possessing illegal narcotics rather than the actual finding of possession of intoxicants. Id., Exh. “A,” Attach. “9” at 1–2.

         On December 20, 2012, Petitioner wrote a letter to the Administrative Remedy Section, which was received on December 26, 2012. Petition (Doc. 1), Weakley Ltr. 12/20/2012 (Exh. “5”). Petitioner stated that he had not received the DHO’s report and was therefore unable to appeal the results of his disciplinary hearing. Id., Exh. “5.” Petitioner further explained that he “borrowed” a BP-10 form from another inmate and sought relief on November 22, 2012. Id., Exh. “5.” On January 30, 2013, Petitioner again wrote a letter to the Administrative Remedy section. Petition (Doc. 1), Weakley Ltr. 1/30/2013 (Exh. “6”). Petitioner asserted that he had still not received his DHO report, nor had he received any response to his November 22, 2012 BP-10. Id., Exh. “6.” Petitioner further expressed frustration regarding his inability to appeal the DHO’s decision. Id., Exh. “6.”

         On February 8, 2013, Petitioner filed another Regional Administrative Remedy Appeal (BP-10), which was received on February 12, 2013 and designated Case No. 724481-R1. Petition (Doc. 1), Regional Administrative Remedy Appeal 2/8/2013 (Doc. 1-1, Exh. “8”) at 7–13;[1] see also Response (Doc. 12), Huband Decl. (Exh. “A”), Administrative Remedy Generalized Retrieval (Attach. “7”) at 46 & Regional Remedy Appeal 2/8/2013 (Attach. “10”) at 138–44.[2] Petitioner asserted that he had not received a response to his November 1, 2012 BP-10, and was formally appealing Incident Report No. 2349546. Petition (Doc. 1), Exh. “8” at 7; see also Response (Doc. 12), Exh. “A,” Attach. “10” at 1. Petitioner alleged eighteen (18) grounds for relief. Petition (Doc. 1), Exh. “8” at 7; see also Response (Doc. 12), Exh. “A,” Attach. “10” at 1.

         On March 5, 2013, Petitioner filed a third Regional Administrative Remedy Appeal (BP-10), which was received on March 13, 2013 and designated Case No. 714567-R2. Petition (Doc. 1), Regional Administrative Remedy Appeal 3/5/2013 (Doc. 1-1, Exh. “9”) at 17–26;[3] see also Response (Doc. 12), Huband Decl. (Exh. “A”), Administrative Remedy Generalized Retrieval (Attach. “7”) at 47 & Regional Remedy Appeal 3/5/2013 (Attach. “11”) at 2–11.[4] Petitioner stated that on March 2, 2013 he had “received a fragmented response to BP-10 714567-R1 which also seem[ed] to address some issues presented in the partial appeal of 2-18-2013[.]” Petition (Doc. 1), Exh. “9” at 17; see also Response (Doc. 12), Exh. “A,” Attach. “11” at 2. Petitioner further asserted that he wished to “void all of the existing administrative remedies concerning incident report #2349546, and the DHO’s refusal to issue a report into the enclosed amended appeal of 2-8-13.” Petition (Doc. 1), Exh. “9” at 17; see also Response (Doc. 12), Exh. “A,” Attach. “11” at 2. Petitioner raised fifteen (15) counts in this appeal. Petition (Doc. 1), Exh. “9” at 17–26; see also Response (Doc. 12), Exh. “A,” Attach. Attach. “11” at 2–11. On March 29, 2013 the Western Regional Office Administrative Remedy Administrative Remedy Coordinator issued a Rejection Notice as to Remedy ID 714567-R2. Petition (Doc. 1), Rejection Notice-Administrative Remedy 3/29/2013 (Doc. 1-1, Exh. “14”) at 32; see also Response (Doc. 12), Exh. “A,” Rejection Notice- Administrative Remedy 3/29/2013 (Attach. “12”). The rejection indicated that Petitioner should have submitted his request to the Central Office level. Petition (Doc. 1), Exh. “14” at 32; Response (Doc. 12), Exh. “A,” Attach. “12.”

         On April 24, 2013, Regional Director Juan D. Castillo responded to Petitioner’s request for administrative relief contained in Administrative Remedy No. 724481-R1. Response (Doc. 12), Huband Decl. (Exh. “A”), Admin. Remedy No. 724481-R1, Castillo Ltr. 4/24/2013 (Attach. “13”). Regional Director Castillo stated that Petitioner had originally appealed the matter, and a response was given on January 30, 2013. Id., Exh. “A,” Attach. “13.” Accordingly, Regional Director Castillo found Petitioner’s appeal repetitive, and indicated that his January 2013 response remained in effect. Id., Exh. “A,” Attach. “13.”

         On April 25, 2013, Petitioner filed his Central Office Administrative Remedy Appeal (BP-11), which was received on May 6, 2013 and given Case No. 714567-A1. See Response (Doc. 12), Huband Decl. (Exh. “A”), Administrative Remedy Generalized Retrieval (Attach. “7”) at 48 & Central Office Admin. Remedy Appeal (Attach. “14”); see also Petition (Doc. 1), Central Office Admin. Remedy Appeal (Exh. “12”). Petitioner indicated that he had not received a response to his regional appeal, but had been instructed to file at the Central Office level. Response (Doc. 12), Exh. “A,” Attach. “14” at 18;[5] see also Petition (Doc. 1), Exh. “12” at 30. Petitioner requested expungement of this misconduct report. Response (Doc. 12), Exh. “A,” Attach. 14 at 27. On May 9, 2013, the Central Office Administrative Remedy Coordinator rejected Petitioner’s appeal. Id., Exh. “A,” Rejection Notice-Admin. Remedy 5/9/2013 (Attach. “15”). The Central Office’s reasons for the rejection included that the appeal was untimely; Petitioner failed to include either a copy of his BP-10 or a copy of the BP-10 response; and the appeal may only include one (1) continuation page. Id., Exh. “A,” Attach. “15.” Petitioner was further directed to provide a staff memorandum stating the reasons that Petitioner’s untimely filing was not his fault. Id., Exh. “A,” Attach. “15.”

         On September 9, 2013, Petitioner filed another Regional Administrative Remedy Appeal (BP-10), which was received on September 19, 2013 and given Case No. 714567-R3. See Response (Doc. 12), Huband Decl. (Exh. “A”), Administrative Remedy Generalized Retrieval (Attach. “7”) at 50 & Regional Admin. Remedy Appeal (Attach. “16”); see also Petition (Doc. 1), Regional Admin. Remedy Appeal (Exh. “15”) at 33– 35.[6] Petitioner reiterated much of his original regional appeal, and acknowledged the Central Office’s reasons for rejecting his BP-11. See Response (Doc. 12), Exh. “A,” Attach. “16”; see also Petition (Doc. 1), Exh. “12.” Additionally, Petitioner included a “Memorandum for Record” from Case Manager M. County indicating that Petitioner had been in Pennsylvania pursuant to a writ from May 16, 2013 through August 23, 2013. Response (Doc. 12), Exh. “A,” Attach. “16” at 34; see also Petition (Doc. 1), Exh. “12.” On September 24, 2013, the Western Regional Office Administrative Remedy Coordinator rejected Petitioner’s regional appeal. Id., Exh. “A,” Rejection Notice- Admin. Remedy 9/24/2013 (Attach. “17”). The Western Regional Office’s reason for the rejection was that petitioner appealed to the wrong level, and should have filed with the Central Office level. Id., Exh. “A,” Attach. “17.”

         On November 16, 2013, Petitioner filed his second Central Office Administrative Remedy Appeal (BP-11), which was received on December 16, 2013 and given Case No. 714567-A2. See Response (Doc. 12), Huband Decl. (Exh. “A”), Administrative Remedy Generalized Retrieval (Attach. “7”) at 53 & Central Office Admin. Remedy Appeal (Attach. “18”). Petitioner indicated that he had received “the attached returned and unanswered BP-10 DHO appeal from the Western Region with instructions to file it [at the Central Office level].” Response (Doc. 12), Exh. “A,” Attach. “18” at 38.[7] Petitioner also complained of the BOP’s failure to consider his appeal. Response (Doc. 12), Exh. “A,” Attach. “18” at 38. On December 30, 2013, the Central Office Administrative Remedy Coordinator rejected Petitioner’s appeal. Id., Exh. “A,” Rejection Notice- Admin. Remedy 12/30/2013 (Attach. “19”).[8] The Central Office’s reasons for the rejection included that the appeal was untimely; Petitioner failed to include either a copy of his BP-10 or a copy of the BP-10 response from the Regional Director; and Petitioner did not submit a complete set of the Request (BP-9) or Appeal (BP-10 or BP-11) form. Id., Exh. “A,” Attach. “19.” Petitioner was again directed to provide a staff memorandum stating the reasons that Petitioner’s untimely filing was not his fault. Id., Exh. “A,” Attach. “19.”

         On February 11, 2014, Petitioner’s third Central Office Administrative Remedy Appeal (BP-11) was received and given Case No. 714567-A3. See Response (Doc. 12), Huband Decl. (Exh. “A”), Administrative Remedy Generalized Retrieval (Attach. “7”) at 56. On March 18, 2014, the Central Office Administrative Remedy Coordinator rejected Petitioner’s appeal. Id., Exh. “A,” Rejection Notice-Admin. Remedy 3/18/2014 (Attach. “20”). The Central Office’s reasons for the rejection included that Petitioner failed to include a copy of his BP-10 or a copy of the BP-10 response from the Regional Director and directed Petitioner to resubmit his appeal in proper form within fifteen (15) days of the notice. Id., Exh. “A,” Attach. “20.” Petitioner did not perfect his appeal regarding Incident Report No. 2349546. See id., Exh. “A,” Attach. “7” at 56–59. . . .

         C. Other Administrative Remedy Requests

         On April 23, 2012, Petitioner filed a Request for Administrative Remedy alleging that Counselor Johannus was attempting “to subvert the Administrative Remedy Process [by lying] on a BP-8 where he claimed that I requested from him a job.” Response (Doc. 12), Huband Decl. (Exh. “A”), Administrative Remedy Generalized Retrieval (Attach. “7”) at 43 & Request for Admin. Remedy 4/23/2012 (Attach. “21”). Petitioner further asserted that he had never requested a job, and had been trying to obtain “unassigned” status to “pursue working on [his] legal woes.” Id., Exh. “A,” Attach. “21.” Accordingly, Petitioner sought investigation into Counselor Johannus’s behavior. Id., Exh. “A,” Attach. “21.” This request was assigned Case Number 691925-F1. See id., Exh. “A,” Attach “7” at 43 & Attach. “21.” On October 5, 2012, Warden Winn responded to Petitioner’s request noting that his “allegations regarding staff misconduct have been thoroughly reviewed.” Id., Exh. “A,” Response Re: Admin. Remedy No. 691925-F1 (Attach. “24”) at 9.[9] Warden Winn denied Petitioner’s request, because “inmates do not have any entitlements to be advised of the results of the investigation or whether any administrative action is taken against staff.” Id., Exh. “A,” Attach. “24” at 9. On October 26, 2012, Petitioner acknowledged receipt of the Administrative Remedy Appeal. Id., Exh. “A,” Attach. “24” at 10.

         On July 19, 2012, Petitioner submitted a Regional Administrative Remedy Appeal (BP-10), which was received on July 30, 2012 and given Case No. 700013-R1. See Response (Doc. 12), Huband Decl. (Exh. “A”), Administrative Remedy Generalized Retrieval (Attach. “7”) at 43 & Regional Admin. Remedy Appeal (Attach. “22”). Petitioner alleged that his local administrative remedy coordinator barred him from participating in the administrative remedy process. See id., Exh. “A,” Attach. “22” at 4.[10]On August 8, 2012, Petitioner’s Administrative Remedy No. 700013-R1 was rejected. Id., Exh. “A,” Rejection Notice-Admin. Remedy 8/8/2012 (Attach. “23”). The notice indicated that Petitioner’s issue was rejected because it was not sensitive, and further notified Plaintiff of his right to appeal the decision. Id., Exh. “A,” Attach. “23.”

         On February 7, 2013, Petitioner filed a Central Office Administrative Remedy Appeal (BP-11), which was received on February 19, 2013 and given Case No. 700013-A1. See Response (Doc. 12), Huband Decl. (Exh. “A”), Administrative Remedy Generalized Retrieval (Attach. “7”) at 46 & Central Office Admin. Remedy Appeal (Attach. “27”). Petitioner alleged an ongoing issue with a denial of access to the administrative remedy process. Response (Doc. 12), Exh. “A,” Attach. “27.” On February 25, 2013, the Central Office issued its rejection of Petitioner’s appeal. Id., Exh. “A,” Rejection Notice-Admin. Remedy 2/25/2013 (Attach. “28”). The Central Office’s reasons for the rejection included that Petitioner should have filed at the institution and that Petitioner must first file a BP-9 request through the institution for the Warden’s review. Id., Exh. “A,” Attach. “28.”

         On May 7, 2013, Petitioner filed a Central Office Administrative Remedy Appeal (BP-11), which was received by the Western Regional Office on May 16, 2013 and given Case No. 734552-R2. See Response (Doc. 12), Huband Decl. (Exh. “A”), Administrative Remedy Generalized Retrieval (Attach. “7”) at 49 & Central Office Admin. Remedy Appeal (Attach. “29”). Petitioner appealed his request for his Inmate Financial Responsibility Program (“IFRP”) status to be changed from “refusal” to “exempt.” Response (Doc. 12), Exh. “A,” Attach. “29.” On May 16, 2013, the Central Office issued its rejection of Petitioner’s appeal. Id., Exh. “A,” Rejection Notice-Admin. Remedy 5/16/2013 (Attach. “30”). The Central Office’s reasons for the rejection included that Petitioner must first file a BP-9 request through the institution for the Warden’s review and Petitioner did not submit his request or appeal on the proper form. Id., Exh. “A,” Attach. “30.”

         On December 27, 2013, Petitioner submitted a Regional Administrative Remedy Appeal (BP-10), which was received on January 14, 2014 and given Case No. 691925-R1. See Response (Doc. 12), Huband Decl. (Exh. “A”), Administrative Remedy Generalized Retrieval (Attach. “7”) at 55 & Regional Admin. Remedy Appeal (Attach. “25”). Petitioner complained of “a serious problem with the administrative remedy process[.]” See id., Exh. “A,” Attach. “25.” On January 28, 2014, Petitioner’s Administrative Remedy No. 691925-R1 was rejected. Id., Exh. “A,” Rejection Notice- Admin. Remedy 1/28/2014 (Attach. “26”). The notice indicated that Petitioner’s appeal was rejected because it was untimely. Id., Exh. “A,” Attach. “26.”

         III. ANALYSIS

         A. Jurisdiction

         “Federal 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, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), overruled in part on other grounds by City of Littleton, Colo. v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004)). “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, a proper characterization of the petition is necessary to a determination of jurisdiction. Id.

         Here, 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 custodial court. At the time of filing the Petition, Petitioner was incarcerated at USP–Tucson in Arizona. Accordingly, this Court has jurisdiction over this matter. Francis v. Rison, 894 F.2d 353 (9th Cir. 1990).

         B. Exhaustion 1. In General

         The Ninth Circuit Court of Appeals has stated:

[28 U.S.C. § 2241] does not specifically require petitioners to exhaust direct appeals before filing petitions for habeas corpus. [Footnote omitted.] However, we require, as a prudential matter, that habeas petitioners exhaust available judicial and administrative remedies before seeking relief under § 2241.

Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). “The requirement that federal prisoners exhaust administrative remedies before filing a habeas corpus petition was judicially created; it is not a statutory requirement.” Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds by Reno v. Koray, 515 U.S. 50, 54–55, 115 S.Ct. 2021, 2023–24, 132 L.Ed.2d 46 (1995). “Nevertheless, ‘[p]rudential limits like jurisdictional limits and limits on venue, are ordinarily not optional.’” Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007) (alterations in original) (quoting Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006)).

         “Courts may require prudential exhaustion if ‘(1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the agency to correct its own mistakes and to preclude the need for judicial review.’” Puga, 488 F.3d at 815 (quoting Noriega-Lopez v. Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003)). “When a petitioner does not exhaust administrative remedies, a district court ordinarily should either dismiss the petition without prejudice or stay the proceedings until the petitioner has exhausted remedies, unless exhaustion is excused.” Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011) (citations omitted). Exhaustion may be excused if pursuing an administrative remedy would be futile. Fraley v. United States Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993).

         If a prisoner is unable to obtain an administrative remedy because of his failure to appeal in a timely manner, then the petitioner has procedurally defaulted his habeas corpus claim. See Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994) (citing Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990); Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986)). If a claim is procedurally defaulted, the court may require the petitioner to demonstrate cause for the procedural default and actual prejudice from the alleged constitutional violation. See Francis, 894 F.2d at 355 (suggesting that the cause and prejudice test is the appropriate test); Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 2647–48, 91 L.Ed.2d 397 (1986) (cause and ...


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