Jenkins v. Ryan

          REPORT AND RECOMMENDATION

          Leslie A. Bowman, United States Magistrate Judge

         Pending 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)

         Pursuant 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).

         The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order dismissing the petition. Jenkins' claims are not exhausted.

         Summary of the Case

         On 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 Cannabis.” Id.

         Jenkins 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)

         Jenkins 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)

         On 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)

         On July 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)

         The respondents filed an answer in which they argue, among other things, that Jenkins's claims were not properly exhausted. (Doc. 10)

         Jenkins 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)

         Discussion

         The 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, ...