United States District Court, D. Arizona
Bryan N. Jenkins, Petitioner,
Charles L. Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
A. Bowman, United States Magistrate Judge
before the court is a petition for writ of habeas corpus
filed on July 5, 2018, by Bryan N. Jenkins, an inmate
currently held in the Arizona State Prison Complex in
Winslow, Arizona. (Doc. 1); (Doc. 13) Jenkins challenges a
prison disciplinary proceeding that occurred on December 23,
2016 at the Arizona Prison Complex, Tucson-Whetstone unit.
(Doc. 1, p. 6)
to the Rules of Practice of this court, the matter was
referred to Magistrate Judge Bowman for report and
recommendation. LRCiv 72.2(a)(2).
Magistrate Judge recommends that the District Court, after
its independent review of the record, enter an order
dismissing the petition. Jenkins' claims are not
of the Case
December 7, 2016, Jenkins was part of an off-site work crew,
which was assigned to clean up trash. (Doc. 10-1, p. 15) When
the inmates were returning to the correctional facility,
Jenkins was pat searched by Corrections Officer Encinas.
(Doc. 10-1, p. 9) Jenkins was found in possession of an empty
plastic tube container labeled “Medical
was initially charged with 13A Promoting Prison Contraband.
(Doc. 10-1, p. 7) Notice of the charge was served on Jenkins
on December 13, 2016. Id. On December 23, 2016,
Hearing Officer Lee Neil found Jenkins guilty of a slightly
different charge, 06A Attempt to Commit a Class A Offense.
(Doc. 10-1, pp. 7, 19, 21) The record is unclear, but it is
possible that the charge was changed because Jenkins argued
he could not be found guilty of Promoting Prison Contraband
if the contraband was confiscated before he re-entered the
correctional facility. (Doc. 10-1, pp. 15, 63) Jenkins was
penalized by a loss of 10 earned release credits, among other
things. (Doc. 10-1, p. 19)
filed a Step I appeal on December 27, 2016, arguing there was
insufficient proof to support the finding of guilty. (Doc.
10-1, p. 21) The appeal was denied on January 3, 2017. (Doc.
10-1, p. 23) Jenkins filed a Step II appeal on January 10,
2017, arguing (1) his due process rights were violated
because his Step I appeal was decided by the assistant deputy
warden, not the deputy warden himself, and (2) there was
insufficient evidence of guilt because he was still outside
the institution when he was found in possession of the
contraband. (Doc. 10-1, p. 25) He filed an amended Step II
appeal on January 11, 2017. (Doc. 10-1, p. 31) The Step II
appeal was returned unprocessed because the Step II appeal
raised different issues than the Step I appeal. (Doc. 10-1,
p. 33) Jenkins filed his final administrative appeal on
January 18, 2017. (Doc. 10-1, p. 35) That appeal was denied
on January 19, 2017. (Doc. 10-1, p. 37)
September 11, 2017, Jenkins filed a special action petition
in the Arizona Superior Court arguing his procedural due
process rights were violated at the disciplinary hearing.
(Doc. 1-1, p. 4) On April 6, 2018, the Arizona Superior Court
dismissed the action without prejudice for failure to serve
process within 90 days pursuant to Ariz.R.Civ.P. 4(i). (Doc.
1-1, p. 30) Jenkins petitioned the Arizona Court of Appeals
for review on June 19, 2018. (Doc. 1-1, p. 20) The Arizona
Court of Appeals issued an order on June 19, 2018 stating
that, “The Court declines to accept
jurisdiction.” (Doc. 1-1, p. 31)
5, 2018, Jenkins filed in this court the pending petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(Doc. 1) He claims his procedural due process rights were
violated at the disciplinary hearing. (Doc. 1)
respondents filed an answer in which they argue, among other
things, that Jenkins's claims were not properly
exhausted. (Doc. 10)
filed a reply in which he explains that he tried to serve his
special action on the defendants but they would not accept
service. (Doc. 12)
writ of habeas corpus affords relief to persons in custody in
violation of the Constitution or laws or treaties of the
United States. 28 U.S.C. § 2254(a). If the petitioner is
in custody pursuant to the judgment of a state court, ...