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 [Doc. 1]
Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.*fn1 Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States magistrate judge. Local Rule 305(b).
Petitioner filed the instant petition for writ of habeas corpus on April 19, 2012. Petitioner challenges disciplinary action taken against him for violating Bureau of Prison (BOP) disciplinary rules. More specifically, he claims that 1) he is actually innocent of the disciplinary infraction; 2) his due process rights were violated in relation to the disciplinary procedures; and 3) he has been the subject of racial discrimination and acts of reprisal by BOP staff.
Respondent filed an answer to the petition on August 1, 2012. Petitioner filed a reply on October 26, 2012.
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 United States Penitentiary in Atwater, 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. 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." Id.
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); 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 v. Carrier, 477 U.S. 478, 492 (1986) (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 BOP has established an administrative remedy procedure governing prisoner complaints. With regard to disciplinary matters, in order to exhaust administrative remedies, an inmate must raise his or her complaint first to the Regional Director. If relief is denied, an inmate may appeal to the National Inmate Appeals Administrator in the Central Office of the BOP. 28 C.F.R. §§ 542, et seq. No administrative remedy appeal is considered to have been finally exhausted until it is reviewed by the BOP's Central Office.
Respondent submits that Petitioner has not exhausted the administrative remedies as to his challenge to the disciplinary action at issue in this case. See Ex. 1, Declaration of Jennifer Vickers, Attachment 3, Administrative Remedy Generalized Retrieval.
Petitioner did file an administrative appeal complaining about Officer Smith's alleged misconduct against him; however, Petitioner did not file an administrative appeal challenging the propriety of the disciplinary action itself. Ex. 1, Attachment 3, Administrative Remedy Generalized Retrieval. Petitioner's claim that prison officials failed to explain the administrative exhaustion process is vague and contrary to the record in this case. In response to Petitioner's complaint regarding Officer Smith's alleged misconduct, the BOP specifically informed Petitioner that a challenge to the disciplinary infraction must be submitted separately from the allegation of staff misconduct. Id. at 5-6. Petitioner was further advised that a challenge to the disciplinary proceedings, should be submitted to the Regional Disciplinary Hearing Administrator in the Western Regional Office of the BOP. Id. Petitioner failed to heed the instruction, and did not file a separate administrative appeal challenging the ...