United States District Court, D. Arizona
ORDER
HONORABLE JENNIFER G. ZIPPS UNITED STATES DISTRICT JUDGE
Before
the Court is Magistrate Judge Jacqueline Rateau's Report
and Recommendation (R&R) recommending that the District
Court deny Petitioner's 28 U.S.C. § 2241 Petition
for Writ of Habeas Corpus. Petitioner has filed an objection
and, relatedly, a 28 U.S.C. § 2247 Motion asking the
Court to accept as true that Petitioner owns a master lock
purchased in 2013. After reviewing the record, the Court will
overrule Petitioner's objections and adopt Judge
Rateau's R&R. The Court will also deny
Petitioner's Motion filed pursuant to 28 U.S.C. §
2247.
STANDARD
OF REVIEW
When
reviewing a Magistrate Judge's Report and Recommendation,
this Court “may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1).
“[T]he district judge must review the magistrate
judge's findings and recommendations de novo if objection
is made, but not otherwise.” United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (emphasis omitted). District courts are not required to
conduct “any review at all . . . of any issue that is
not the subject of an objection.” Thomas v.
Arn, 474 U.S. 140, 149 (1985). See also 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
DISCUSSION
As
stated in the R&R, [1] Petitioner is currently serving a
600-month sentence for Conspiracy to Produce Child
Pornography and Tampering with a Witness, Victim, or
Informant. On December 29, 2017, a Bureau of Prisons officer
found a homemade weapon-a “lock-n-sock”-in the
back compartment of Petitioner's secured locker.
Petitioner was notified of his charge for possessing an
instrument that might be used as a weapon that same day. The
case was referred to a Discipline Hearing Officer (DHO). In
advance of Petitioner's hearing before the DHO, he was
advised of the rights he would have at the hearing, and he
indicated that he understood those rights. Although he was
advised that the DHO might call witnesses who were reasonably
available and had information relevant to the charges,
Petitioner waived his right to call witness and his right to
have staff representation.
At the
disciplinary hearing on January 10, 2018, the DHO considered
the report prepared by the officer, as well as a photograph
taken of the weapon, a memorandum prepared by a senior
correctional officer describing the search, and a memorandum
detailing chain of custody. The record reflects that
Petitioner made no statements denying that the weapon was his
or indicating that someone else might have placed it in his
locker. At the conclusion of the hearing, the DHO found that
Petitioner had committed the charged act, and Petitioner was
sanctioned with the loss of 41 days of good time credit.
Petitioner was advised of the findings, specific evidence
relied on, and reason for the disciplinary action, as well as
of his appeal rights. Petitioner then exhausted his
administrative remedies and brought this action before the
Court.
The
R&R concluded that the hearing before the DHO and outcome
did not violate Petitioner's due process rights. A
prisoner has the right to five procedural safeguards in a
proceeding that might result in the loss of good time
credits: 1) the right to receive written notice of the
charges at least 24 hours before the disciplinary hearing; 2)
the right to call witnesses, unless it would be unduly
hazardous; 3) the right to assistance in preparing and
presenting a defense to the charges; 4) the right to a copy
of the disciplinary findings; and 5) the right to a hearing
before a sufficiently impartial decision maker. Wolff v.
McDonnell, 418 U.S. 539, 556-57 (1974). Due process
requirements are satisfied where the DHO relies on
“some evidence in the record” to decide to revoke
good time credits. Superintendent, Mass. Corr. Inst.,
Walpole v. Hill, 472 U.S. 445, 454 (1985).
“Ascertaining whether this standard is satisfied does
not require examination of the entire record, independent
assessment of the credibility of witnesses, or weighing of
the evidence. Instead, the relevant question is whether there
is any evidence in the record that could support the
conclusion reached by the disciplinary board.”
Id. at 455-56; see also Lane v. Salazar,
911 F.3d 942, 951 (9th Cir. 2018).
Petitioner
first objects to Magistrate Judge Rateau's finding that
he received adequate notice, required under Wolff,
of the charges against him, because the report did not
“divulge any fact that revealed how he [the officer]
determined that the Petitioner and not his cell mate
constructively possessed the purported locker.” (Doc.
22, pg. 2.) The record reflects that Petitioner received a
copy of the incident report, just hours after the weapon was
discovered. Petitioner knew, at the very least, that the
officer had recovered the weapon from Petitioner's
locker, and despite having the opportunity to present
witnesses and contest the evidence presented to the DHO,
Petitioner provided no explanation as to why the weapon might
belong to anyone else. And Petitioner now points to no
evidence presented to the DHO that he was unprepared to
defend against by virtue of having received only the
officer's report and no more.
Petitioner
next objects to the Magistrate Judge's finding that the
DHO's decision to revoke his good time credits was
supported by “some evidence.” Petitioner's
main arguments supporting this objection are that the
decision made in his case was supported by less evidence than
was presented in Superintendent, and that the
officer who searched his locker never explained why he
expected to find a weapon inside. The “some
evidence” standard, however, is flexible, and the
report provided by the officer of a weapon found inside of
Petitioner's locker, as well as the memoranda describing
the search and detailing the chain of custody, satisfied that
standard. Petitioner does not describe what additional
evidence might reasonably have been presented in a case such
as this, short of video surveillance monitoring all activity
around the locker or a fingerprint test run on the
weapon-either of which might have provided stronger evidence
in either direction but neither of which was required in
light of what was presented. As for Petitioner's second
argument, the officer was not obligated to provide a reason
for having searched Petitioner's locker. Petitioner does
not assert that he had a cognizable privacy interest in the
space.
Petitioner
further argues that his due process rights were violated when
he was denied access to his central file, which might have
contained exculpatory information. Petitioner makes this
argument for the first time in his 28 U.S.C. § 2241
motion, without actually submitting any of the documents he
alleges were contained within the file. The record does not
reflect that he made any argument at his DHO hearing to the
effect that the locker did not belong to him, or that his
cell mate had open access to the locker even if it was in
Petitioner's name. The record also does not reflect that
Petitioner asserted at any point that he had been denied
critical documents that might have been used in his
defense-nor does Petitioner argue even now that he made such
an assertion, reflected in the record or otherwise.
Finally,
Petitioner argues, by way of a 28 U.S.C. § 2247 motion,
that the Court should accept a 2013 receipt of purchase for a
master lock, and a 2015 inventory reflecting a master lock,
as “irrefutable evidence of the fact that petitioner
still owns the master lock that he purchased in 2013, ”
which he argued at the DHO hearing did not look like the lock
presented to the DHO. (Doc. 24.) 28 U.S.C. § 2247 states
that “[o]n application for a writ of habeas corpus
documentary evidence, transcripts of proceedings upon
arraignment, plea and sentence and a transcript of the oral
testimony introduced on any previous similar application by
or in behalf of the same petitioner, shall be admissible in
evidence.” Even accepting Petitioner's submission,
the receipt and inventory from years preceding the incident
do not negate the finding that a “lock-n-sock”
weapon was recovered in his locker. As argued by Responded,
“[t]he Bureau was not required to establish that
Petitioner purchased the items to make the
‘lock-n-sock,' merely that he possessed it.”
(Doc. 25, pg. 2.)
Before
Petitioner can appeal this Court's judgment, a
certificate of appealability (COA) must issue. See
28 U.S.C. §2253(c); Fed. R. App. P. 22(b)(1); Rule 11(a)
of the Rules Governing Section 2254 Cases. “The
district court must issue or deny a certification of
appealability when it enters a final order adverse to the
applicant.” Rule 11(a) of the Rules Governing Section
2254 Cases. Pursuant to 28 U.S.C. § 2253(c)(2), a COA
may issue only when the petitioner “has made a
substantial showing of the denial of a constitutional
right.” The court must indicate which specific issues
satisfy this showing. See 28 U.S.C.
§2253(c)(3). With respect to claims rejected on the
merits, a petitioner “must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). For procedural
rulings, a COA will issue only if reasonable jurists could
debate whether the petition states a ...