United States District Court, D. Arizona
ORDER
HONORABLE ROSEMARY MARQUEZ UNITED STATES DISTRICT JUDGE.
On
January 29, 2018, Petitioner Gino Carlucci, a federal inmate
at the United States Penitentiary in Tucson, Arizona, filed a
Petition Under 28 U.S.C. § 2241 for a Writ of Habeas
Corpus. (Doc. 1.) On February 6, 2018, the Court ordered
Respondent JT Shartle[1]to answer and referred this matter to
Magistrate Judge D. Thomas Ferraro for further proceedings.
(Doc. 3.) On January 2, 2019, Judge Ferraro issued a Report
and Recommendation, recommending that the Petition be denied.
(Doc. 14.) Petitioner filed Objections, to which Respondent
has responded. (Docs. 15, 20.) For the reasons stated below,
the Report and Recommendation will be adopted.
I.
Factual and Procedural History
A.
Background
On June
13, 2017, Special Investigative Services (“SIS”)
Technician D. Madrid prepared and signed an Incident Report
charging Petitioner with violation of Prohibited Act Codes
296, 328, and 334, which prohibit, respectively, “[u]se
of the mail for abuses other than criminal activity which
circumvent mail monitoring procedures, ”
“[g]iving money or anything of value to, or accepting
money or anything of value from, another inmate or any other
person without staff authorization, ” and
“[c]onducting a business.” (Doc. 11-2 at 16); 28
C.F.R. § 541.3 (Table 1). According to the Incident
Report, Technician Madrid was reviewing inmate emails when
she noticed that Petitioner's email account was being
used to communicate with A.S. (Doc. 11-2 at 16.) A.S. is the
son of Petitioner's then-cellmate, V.S. (Id.)
V.S. was prohibited from emailing A.S. because he had been
caught directing A.S. to buy and sell stocks. (Id.)
Further
review of Petitioner's emails revealed that V.S. was
using Petitioner's email account to communicate with A.S.
(Id.) One email from A.S. on June 2, 2017, stated
that A.S. would visit on the coming Sunday. (Id.)
A.S. visited V.S. the following Sunday. (Id.)
Petitioner received no visitors that Sunday and had not
received visitors in months. (Id.) A second,
outgoing email directed A.S. to deposit money into
Petitioner's financial account. (Id.) One week
later, A.S. deposited $40 into Petitioner's financial
account. (Id.)
Lieutenant
D. Eastwood advised Petitioner of his rights and gave him a
copy of the Incident Report. (Id. at 17.) Petitioner
told Lieutenant Eastwood, “That's not what
happened.” (Id.) Lieutenant Eastwood
determined that the Incident Report contained the correct
charges and forwarded it to the Unit Discipline Committee
(“UDC”) and Discipline Hearing Officer
(“DHO”) for further review. (Id.)
Petitioner
appeared before the UDC on June 14, 2017. (Id. at
16.) At that time, Petitioner gave the following statement:
“My bunkie is teaching me stocks. I get the data from
his son. I've passed a message from his dad and
that's it. I never paid him anything nor has he paid
me.” (Id.) The UDC referred the matter to the
DHO and provided Petitioner with a Notice of Discipline
Hearing and a Notice of Inmate Rights at Discipline Hearing.
(Id. at 14-16.) Petitioner signed the Notice of
Discipline Hearing, initially indicating that he did not want
a staff representative or to call any witnesses.
(Id. at 14.) The Notice of Discipline Hearing was
updated on June 27, 2017, to reflect that Petitioner wanted
to call SIS Lieutenant VanDevender as a witness.
(Id.)
Petitioner
appeared before DHO J. Ciufo on June 28, 2017. (Id.
at 10.) A staff representative appeared on Petitioner's
behalf and gave the following statement: “The only
financial transaction I saw was for $40.00 going on his
account. I did not see anything in furtherance of another
high prohibited act.” (Id.) DHO Ciufo recorded
Petitioner's past statements (i.e., “That's not
what happened, ” and “My bunkie is teaching me .
. . .”) and took the following additional statement:
I put [V.S.'s] son on my account so he can teach me how
to learn stock & trade. Everyday I get the list from
[A.S.] and review it. I did ask him to put money on my
account. The Captain and Lieutenant Van Devender [sic] said I
could email him as long as I wasn't conducting a
business.
(Id.)
DHO
Ciufo obtained the following statement from Lieutenant
VanDevender, who was unavailable to attend the hearing:
“I never told inmate Carulucci [sic] anything.”
(Id. at 11.) After considering the Incident Report,
the investigation, and the TRUVIEW documents (which show the
content of the emails, among other things), DHO Ciufo found
that Petitioner committed Prohibited Act Codes 296 and 328
but not Prohibited Act Code 334. (Id. at 11-12.) As
a result, Petitioner lost 27 days of good-time credit and 6
months of email privileges. (Id. at 12.)
B.
The Habeas Petition
In
Ground One of the Petition, Petitioner alleges that there is
no evidence to support finding that he violated Prohibited
Act Code 296 and 326. He alleges that he was merely learning
to trade stocks, both by taking a class taught by V.S. and by
having A.S. email the “daily gainers.” Petitioner
alleges that he asked A.S. to send $40 ...