United States District Court, D. Arizona
REPORT & RECOMMENDATION
BERNARDO P. VELASCO UNITED STATES MAGISTRATE JUDGE
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.
Standard of Review
U.S.C. § 2241
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.”).
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.
Prison Disciplinary Rights
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).
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).
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).
§ 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.
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.
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 ...