United States District Court, D. Arizona
Honorable Lynnette C. Kimmins United States Magistrate Judge
Jose Gutierrez, incarcerated at the Federal Correctional
Institution in Safford, Arizona, has filed a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.
Before this Court are the First Amended Petition (Doc. 5) and
Respondent's Answer (Doc. 12). The parties consented to
exercise of jurisdiction by a Magistrate Judge, pursuant to
28 U.S.C. § 636(c)(1). (Doc. 18.) The Court finds that
Petitioner's claims should be dismissed as Petitioner has
failed to raise a colorable claim for relief.
AND PROCEDURAL BACKGROUND
is serving a 108-month sentence for his 2014 conviction for
Possession of Methamphetamine with Intent to Distribute and
Felon in Possession of a Firearm. (Doc. 12, Ex. 1 at 2.) The
Bureau of Prisons (BOP) projects his release date as February
6, 2022, presuming he earns all available good time credits.
housed at the Federal Correctional Institution Terminal
Island in San Pedro, California, Petitioner was charged with
assault. (Id., Ex 1, Attach. 2 at 18.) An
investigation and Incident Report were completed on May 24,
2017. (Id.) The investigation revealed that
Petitioner was one of five inmates who entered another
inmate's cell and participated in the assault.
(Id.) The inmate victim identified Petition as one
of the assailants. (Id.) In addition, witness
inmates provided corroborating statements, and video footage
showed the victim and assailants in the unit where the
assault occurred during the time of the incident.
(Id.) Inmate Castillo, another inmate accused of
being involved, stated that he was the only one responsible
for the assault when interviewed by the Special Investigate
Services (SIS) Technician Officer. (Id. at 34.) The
Incident Report, providing notice of the charge, was
delivered to Petitioner on both May 24 and May 30, 2017, and
to the Unit Disciplinary Committee (UDC). (Id. at
17-18.) The UDC referred the matter to a Detention Hearing
Officer (DHO). (Id. at 18.) On May 26, 2017,
Petitioner was informed of his rights (id. at 55)
and signed a form declining to have a staff representative or
to call witnesses at the DHO hearing (id. at 57).
4, 2017, a hearing was held before a DHO and Petitioner did
not request witnesses. (Id. at 12.) The DHO found
that Petitioner committed the assault and sanctioned him with
the loss of 27 days good conduct time, forfeiture of 10 days
non-vested good conduct time, loss of phone and visit time
for three months, and disciplinary segregation for 30 days.
(Id. at 13.) The DHO's report was completed on
June 4, 2017, and delivered to Petitioner that same day.
appealed the DHO's decision to the Regional Director on
June 19, 2017, contending that he was innocent because the
fight was between the victim and Inmate Castillo, who had
taken sole responsibility for the assault, and it was
impossible for six people to fit into a cell as was claimed
in the Incident Report. (Id. at 61.) The Regional
Director denied the appeal on December 1, 2017. (Id.
at 60.) Petitioner appealed this decision, and the appeal was
received by the BOP General Counsel on December 11, 2017.
(Id. at 2.) In this appeal, Petitioner argued that
the greater weight of the evidence did not support a finding
of guilt and that his due process rights were violated when
he was denied the right to call a witness for his defense.
(Id. at 3.) Petitioner stated he had wished to call
Inmate Castillo as a witness because Castillo's testimony
could have exonerated him. (Id.) The General Counsel
denied the appeal on February 8, 2018; he found that the
determination of the DHO was “reasonable and supported
by the evidence” and Petitioner had signed a form
waiving his right to staff representation and witnesses prior
to his DHO hearing. (Id. at 1.) He also stated that
the second appeal was the first time in the administrative
record that Petitioner mentioned wanting to have a witness.
filed a Petition for Writ of Habeas Corpus in this Court on
June 18, 2018. (Doc. 1.) He then filed an Amended Petition on
July 20, 2018, asserting that his due process rights were
violated when the DHO denied Petitioner's request to call
a witness for the disciplinary hearing without justification.
argues that Petitioner's claim is precluded for lack of
exhaustion and that his due process rights have not been
of Administrative Remedies
the Court requires an inmate to exhaust all available
administrative remedies before it agrees to reach the merits
of a 28 U.S.C. § 2241 claim. Martinez v.
Roberts, 804 F.2d 570, 571 (9th Cir. 1986). The
administrative exhaustion requirement protects an
administrative agency's authority by promoting respect
for the agency's procedures and by affording it the
opportunity to correct its own mistakes before being haled
into court. Woodford v. Ngo, 548 U.S. 81, 89 (2006).
dispute a decision made by the DHO, an inmate has two avenues
of appeal. First, the inmate may submit a BP-10 appeal form
to the Regional Director within 20 days from the DHO
decision. See 28 C.F.R. §§ 542.14(d)(2),
542.15(a). Then, if unsatisfied with the Regional
Director's response, the inmate may submit a BP-11 appeal
form to the General Counsel within 30 days of the Regional
Director's decision. See 28 C.F.R. §
542.15(a). That is the final administrative appeal from a DHO
decision. Id. An inmate may not raise an issue on
appeal if they did not raise it in a lower-level filing. 28
C.F.R. § 542.15(b)(2). Here, Petitioner's first
appeal only raised the sufficiency of the evidence to find
him guilty. (Doc. 12, Ex. 1, Attach. 2 at 61.) In his appeal
to the General Counsel, Petitioner raised both a sufficiency
of the evidence claim and a due process violation claim based
on denial of the right to call a witness. (Id. at
3.) Because Petitioner failed to bring his due process
violation claim to the Regional Director, he has not
exhausted the BOP's administrative remedies for this
Court, however, can waive the exhaustion requirement if
exhausting administrative remedies would be futile,
inadequate, void, or will cause irreparable injury. Laing
v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004).
Although Petitioner's due process claim was not raised in
the appeal to the Regional Director, the General Counsel
considered the claim and denied it on its merits. (Doc. 12,
Ex. 1, Attach. 2 at 1.) Requiring Petitioner to bring a new
administrative appeal of this claim would be futile because
the BOP's General Counsel already considered the merits
of the claim, and a new appeal would likely be dismissed as
untimely. See Von Kahl v. Brennan, 855 F.Supp. 1413,
1417 (M.D. Pa. 1994) (excusing proper exhaustion of
administrative remedies where the petitioner raised all
claims in his appeal to the ...