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Howell v. Rios

August 31, 2009

ROBERT NELSON HOWELL, PETITIONER,
v.
RIOS, WARDEN, ET.AL., RESPONDENTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT

Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge.

BACKGROUND

Petitioner is currently a federal inmates with a projected release date of May 14, 2024, via Good Conduct Time release. In the instant petition, Petitioner challenges a disciplinary violation he received for possession of a Hazardous Tool (cellular telephone) issued on January 22, 2007.

At the time Petitioner filed the instant federal petition on February 19, 2009, he was in custody at the United States Penitentiary ("USP") in Atwater, California. On March 13, 2009, Petitioner was transferred to a lower security institution, the Federal Correctional Institution ("FCI") in Forrest City, Arkansas. (See Declaration of L. Green, Attachment 1, to Answer, SENTRY Public Information Inmate Data.) Petitioner remains in custody at FCI Forrest City in Arkansas.

Respondent filed an answer to the petition on July 27, 2009, and Petitioner filed a response on August 18, 2009.*fn1 (Court Docs. 16, 17.)

DISCUSSION

I. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to a judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. Petitioner's claims for relief arise out of a disciplinary hearing. Petitioner is confined at the Taft Correctional Institution in Taft, California, which is located within the jurisdiction of this Court. 28 U.S.C. §§ 2254(a), 2241(d). If a constitutional violation has resulted in the loss of time credits, such violation affects the duration of a sentence, and the violation may be remedied by way of a petition for writ of habeas corpus. Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990).

II. Review of Petition

In the instant petition, Petitioner contends that he was issued a rules violation in retaliation and he was subjected to a flawed disciplinary proceeding on January 31, 2007, at the USP in Atlanta, Georgia. More specifically, Petitioner contends the rules violation was issued because he refused to "become an informant for the bureau or prisons staff" resulting in a violation of his Due Process rights under the Fifth Amendment. Petitioner further contends that there is no evidence to support the finding of guilt and the imposition of sanctions in retaliation constituted cruel and unusual punishment.

Prisoners cannot be entirely deprived of their constitutional rights, but their rights may be diminished by the needs and objectives of the institutional environment. Wolff v. McDonnell, 418 U.S. 539, 555 (1974). Prison disciplinary proceedings are not part of a criminal prosecution, so a prisoner is not afforded the full panoply of rights in such proceedings. Id. at 556. Thus, a prisoner's due process rights are moderated by the "legitimate institutional needs" of a prison. Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989), citing Superintendent, etc. v. Hill, 472 U.S. 445, 454-455 (1984).

However, when a prison disciplinary proceeding may result in the loss of good time credits, due process requires that the prisoner receive: (1) advance written notice of at least 24 hours of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action. Hill, 472 U.S. at 454; Wolff, 418 U.S. at 563-567. In addition, due process requires that the decision be supported by "some evidence." Hill, 472 U.S. at 455, citing United States ex rel. Vatauer v. Commissioner of Immigration, 273 U.S. 103, 106 (1927).

In this instance, Petitioner received advance written notice on January 23, 2007. He was afforded the ability to call witnesses of which he took advantage and declined to have a staff representative. He appeared at the Disciplinary Hearing on January 31, 2007, and was given the opportunity to provide a statement and present documentary evidence. He was also provided a written statement including the evidence and reasons for ...


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