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Gary v. Federal Bureau of Prisons

April 20, 2010


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


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. (Court Docs. 4, 6.)


Petitioner is a federal prisoner serving a 141 month aggregate sentence. Petitioner's sentence is comprised of several smaller sentences, including a 12 month sentence imposed on November 19, 2002, by the Western District of Missouri, for violation of supervised release (the original sentence, for Escape from Federal Custody, in violation of 18 U.S.C. § 751(a), was imposed on February 22, 1999); a 105 months sentence, also imposed on November 19, 2002, by the Western District of Missouri, for Felon in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (date of offense November 15, 2001); and a 24 month sentence imposed by the Eastern District of Kentucky on August 22, 2005, for Possession of Methamphetamine by a Federal Inmate, in violation of 18 U.S.C. § 1791(a)(2) (date of offense January 24, 2004). See Answer, Attachment 1, Judgment & Commitment Orders; see also, Attachment 2, Public Information Inmate Data. At the time of the challenged incident report, Petitioner was housed at the United States Penitentiary in Lee County (USP Lee), Virginia. Petitioner is currently housed at the United States Penitentiary in Atwater (USP Atwater), California. Petitioner's projected release date is November 14, 2010-via good conduct time release.

In the instant petition, Petitioner challenges the sanctions he received for three different prison rule violations. He claims he was denied due process and the hearing officer was not authorized to forfeit Non-Vested Good Conduct Time as a sanction.


I. Subject Matter Jurisdiction and Venue

Writ of habeas corpus relief extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. Writ of habeas corpus relief is available if a federal prisoner can show he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Whether the Court has subject matter to hear Petitioner's claims pursuant to 28 U.S.C. § 2241 will be discussed below. In addition, pursuant to § 2241, venue is proper in this case because Petitioner was confined at the United States Penitentiary in Atwater, California, at the time he filed the instant petition. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir.2000).

II. Exhaustion of Administrative Remedies

Before filing a petition for writ of habeas corpus, a federal prisoner challenging any circumstance of imprisonment must first exhaust all administrative remedies. Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir. 1984); Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). The requirement that federal prisoners exhaust administrative remedies before filing a habeas corpus petition was judicially created; it is not a statutory requirement. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990). Thus, "because exhaustion is not required by statute, it is not jurisdictional." Id. If Petitioner has not properly exhausted his claims, the district court, in its discretion, may either "excuse the faulty exhaustion and reach the merits or require the petitioner to exhaust his administrative remedies before proceeding in court."

If the petitioner did not properly exhaust his administrative remedies, and such remedies are no longer available, he may have procedurally defaulted on his claims. See Francis v. Rison, 894 F.2d 353, 354-55 (9th Cir.1990) (applying procedural default rules to administrative appeals); see generally Murray v. Carrier, 477 U.S. 478, 485 (1986); Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977); Tacho v. Martinez, 862 F.2d 1376, 1378 (9th Cir.1988). If a claim is procedurally defaulted, the court may require the petitioner to demonstrate cause for the procedural default and actual prejudice from the alleged constitutional violation. See Francis, 894 F.2d at 355 (suggesting that the cause and prejudice test is the appropriate test); Murray, 477 U.S. at 492 (cause and prejudice test applied to procedural defaults on appeal); Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 906-08 (9th Cir.1986) (cause and prejudice test applied to pro se litigants).

The Bureau of Prisons has established an administrative remedy procedure governing prisoner complaints. The procedure is set forth at 28 C.F.R. § 542.10 et. seq. First, an inmate must attempt to resolve the issue informally by presenting it to staff before submitting a Request for Administrative Remedy. 28 C.F.R. § 542.13 (1999). If dissatisfied with the response, the prisoner may proceed with the formal filing of an Administrative Remedy Request. 28 C.F.R. § 542.14 (1999). Upon denial by the institution, the prisoner may appeal the decision by filing a complaint with the Regional Director of the Bureau of Prisons. 28 C.F.R. § 542.15 (1999). The Regional Director's decision may be appealed to the General Counsel in Washington, D.C. Id. Appeal to the General Counsel is the final step in the administrative remedy process. Id.

With regard to incident report 1619034, Petitioner submitted an appeal to the Regional Director on August 9, 2007. However, it was rejected because Petitioner did not submit three copies of his continuation page. He was advised he must resubmit his appeal within ten days. Petitioner failed to do so. However, Petitioner did submit an administrative appeal to the Warden at USP Atwater challenging both incident reports 1619034 and 1647130, which was denied on January 25, 2010. See Amendment to Original Petition, at 3-5. Petitioner did not appeal this decision. See Answer, Attachment 3, Declaration of Jennifer Vickers. Therefore, Petitioner has not exhausted his administrative remedies with respect to these incident reports.

With regard to incident report 1793099, Petitioner filed a Regional Administrative Remedy Appeal with the Mid-Atlantic Regional Office, on February 18, 2009. Id., see also Attachment 4, Administrative Remedy Appeal 531143-R1; Petition at 11. The Regional Director responded to Petitioner's appeal on May 6, 2009. Id., see also Petition at 10. On June 2, 2009, the BOP's central officer received a Central Officer Administrative Appeal. Id., see also Petition at 5-9. On June 18, 2009, the appeal was rejected because Petitioner exceeded the allowable continuation page limit. Id., see also, Petition at 4. Petitioner was instructed that he could re-file the appeal within fifteen days, but he failed to do so. Accordingly, Petitioner has not exhausted the administrative remedies with respect to this claim as well. Notwithstanding Petitioner's failure to exhaust, for the reasons explained below, his claims fail on the merits.

IV. Applicable Law

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). The "some evidence" standard is "minimally stringent," and a decision must be upheld if there is any reliable evidence in the record that could support the conclusion reached by the fact finder. Hill, 472 U.S. at 455-456; see also Barnsworth v. Gunderson, 179 F.3d 771, 779 (9th Cir. 1990); Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir. 1987). Determining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or the weighing of evidence. Hill, 472 U.S. at 455; Toussaint v. McCarthy, 801 F.2d 1080, 1105 (9th Cir. 1986).

V. Analysis of Petition

A. Incident Report 161903

On July 11, 2007, Officer D. Compton, Special Investigative Tech., wrote an incident report charging Petitioner with a violation of Code 197, Use of the Telephone to Further Criminal Activity, and Code 203, Threatening Another With Bodily Harm or Any Other Offense. See Attachment 5, DHO File 1619034 at 5.

On July 12, 2007, the Unit Disciplinary Committee (UDC) conducted a hearing and referred the incident report to be heard by the Discipline Hearing Officer (DHO). Id. at 10. Petitioner signed the form indicating that he had been advised of his rights, and he did not request a Staff Representative or to call witnesses. Id. at 11.

The DHO held a hearing on July 19, 2007. Petitioner did not submit any documentary evidence, but he made the following statement: "I said what I said. I'm not denying it. I was mad. I called her three times since. I made the threat." Id. After considering all of the evidence, including Petitioner's statements and the information set forth in the incident report, ...

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