Carlucci v. Shartle

          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 ...