Jackson v. Shartle

          REPORT & RECOMMENDATION

          BERNARDO P. VELASCO UNITED STATES MAGISTRATE JUDGE

         Petitioner Ronald Jackson, who is currently incarcerated at the United States Penitentiary-Tucson, filed a Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody. (Doc. 1.) Respondent filed a Return and Answer to the § 2241 Petition (Doc. 11), and Petitioner filed a Traverse in Reply (Doc. 14) and successive Traverse (Doc. 15). This case has been referred to Magistrate Judge Bernardo P. Velasco for a Report and Recommendation pursuant to Local Rules of Civil Procedure 72.1 and 72.2. (Doc. 7 at 3.) The Court recommends the District Judge deny Petitioner's § 2241 Petition.

         I. Standard of Review

         a. 28 U.S.C. § 2241

         A federal prisoner who seeks to challenge the legality of a sentence must generally do so by motion raised in the sentencing court pursuant to 28 U.S.C. § 2255. See Harrison v. Ollison, 519 F.3d 952, 954 (9th Cir. 2008). In contrast, a prisoner who seeks to challenge the manner, location, or conditions relating to execution of his sentence must bring a petition pursuant to 28 U.S.C. § 2241 in the custodial court. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). In this instance, Petitioner challenges the BOP's reduction in Good Conduct Time in violation of his Due Process Rights. Therefore, he challenges the manner in which his sentence is being executed and a petition under § 2241 is proper. See e.g., Close v. Thomas, 653 F.3d 970, 973-74 (9th Cir. 2011) (“[J]udicial review remains available for allegations that BOP action is contrary to established federal law, violates the United States Constitution, or exceeds its statutory authority.”).

         Furthermore, prior to filing a petition under 28 U.S.C. § 2241 in the District Court, a petitioner must exhaust his administrative remedies. Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004). Since exhaustion is not disputed by Respondent (Doc. 11 at 2), the Court immediately proceeds to the merits of Petitioner's claim.

         b. Prison Disciplinary Rights

         “Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). To discipline an inmate and reduce his Good Conduct Time, due process requires the inmate is provided: (1) notice of the violation; (2) a written explanation of the disciplinary action taken and reasons for such action; (3) a chance to present evidence; (4) assistance preparing a defense, if requested; and (5) an impartial fact finder. Id. at 563-72. A Disciplinary Hearing Officer's (“DHO”) determination must be based on some evidence; or, if the evidence is conflicting, it must rely on a greater weight of the evidence. 28 C.F.R. § 541.8(f).

         Typically, the discipline process commences when BOP staff gives an inmate an Incident Report-usually within 24 hours of BOP staff learning of the offense. 28 C.F.R. § 541.5(a). After staff investigation into the incident, the Unit Discipline Committee (“UDC”) reviews the incident report and conducts a hearing in which the inmate may make a statement and produce evidence. 28 C.F.R. § 541.7. At this point, the UDC has three options: it may (1) find the inmate committed an offense; (2) find the inmate did not commit an offense; or (3) refer the incident to the DHO for further consideration. 28 C.F.R. § 541.7(a).

         If referred to the DHO-who must be an impartial decisionmaker-the DHO will conduct a hearing with the inmate. 28 C.F.R. §§ 541.8(b), (e). The DHO makes finding similar to the UDC: either that the inmate did or did not commit the offense, or that the conduct warrants further investigation and final disposition. 28 C.F.R. § 541.8(a). Finally, the DHO must give the inmate a copy of the written decision documenting: “(1) Whether [the inmate] was advised of [his] rights[]; (2) The evidence relied on by the DHO; (3) The DHO's decision; (4) The sanction imposed by the DHO; and (5) The reason(s) for the sanction(s) imposed.” 28 C.F.R. § 541.8(h).

         II. Summary

         Petitioner's § 2241 Petition raises one ground for relief. He alleges that he was denied due process during his disciplinary hearings, which resulted in a loss of forty-one (41) days of Good Conduct Time. (Doc. 1 at 4.) He believes the due process violation occurred because the DHO determined he possessed alcohol and amphetamines, both of which he denies possessing. Id.

         On September 23, 2016, BOP Officer J. Cordero discovered “two brown paper type strips saturated with an unknown substance” during a search of Petitioner's cell that he shared with one other inmate. (Ex. 1, Att. 2 at 8.) SIS technician J. Walker tested the strips and found them positive for amphetamine. (Ex. 1, Att. 2 at 8, 10-11.) Lieutenant J. Lawson conducted an investigation the next day, advised Petitioner of his rights, provided him with a written copy of the Incident Report, and recorded Petitioner's statement. (Ex. 1, Att. 2 at 9.) Petitioner initially denied that the amphetamine was his and asked for it to be tested. (Ex. 1, Att. 2 at 1). Lieutenant Lawson then gave the DHO report to the UDC for consideration. Id.

         The UDC evaluated the incident report on September 27, 2016, and took Petitioner's statement about the paper, “it's coffee on a piece of paper towel; can you send it to the lab; it's not my celly's.” (Ex. 1, Att. 2 at 8.) Based on ...