United States District Court, E.D. California
RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS
MICHAEL J. SENG, 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.
Petitioner raises two claims challenging a disciplinary hearing in which he suffered a loss of good time credit. First, he asserts that the Disciplinary Hearing Officer ("DHO"), an employee of a privately-run correctional institution, did not have authority to discipline him. Second, he asserts that his right to due process was violated when discipline was imposed by the DHO since the DHO was not an independent and impartial decision-maker. (Pet. at 3, ECF No. 1.)
Petitioner filed his petition on April 29, 2013. Respondent filed an answer to the Petition on July 30, 2013. (Answer, ECF No. 13.) Petitioner filed a traverse to the answer on August 12, 2013. (Traverse, ECF No. 14.)
I. FACTUAL BACKGROUND
Petitioner is serving an aggregated 160-month term of imprisonment for possession and conspiracy to possess a controlled substance with intent to distribute originating from the Northern District of Texas. (See Decl. of Jennifer Vickers ("Vickers Decl.") ¶ 2, Attach. 1.) On March 4, 2008, Petitioner arrived at Taft Correctional Institution ("TCI") in Taft, California, for service of a federal term of imprisonment. (Id. ¶ 3, Attach. 3.) TCI is a "federal facility operated by a private company." On May 23, 2010, Petitioner was found to have commited the unauthorized acts of possession of a thing not authorized and stealing and was sanctioned a loss of 27 days of good conduct time. (Id. ¶ 4, Attachs. 4-7.)
Specifically, on April 23, 2010, a search of Petitioner's locker revealed six laundry issued shampoo bottles, 14 plastic bags, a bag of metal fasteners, 15 white t-shirts, five pillowcases, two sheets, four washcloths, two towels, a chowhall dish, three pairs of boxers, a pair of socks, tweezers, four nail clippers, and 18 bars of laundry soap. Petitioner was charged with possession of things not authorized and stealing. (Id. ¶ 4, Attachs. 4-7.) On May 13, 2010, a disciplinary hearing was held. Petitioner admitted that he took the items from the laundry and was found to have commited the prohibited acts. He was sanctioned a loss of 27 days good conduct time, 15 days of disciplinary segregation, and two months loss of commissary privlidges. (Id.)
The DHO's report and findings were reviewed by Bureau of Prisons ("BOP") staff, the findings were certified, and the recommended sanctions were imposed. Petitioner challenges the results of the hearing claiming that the DHO was not authortized to impose sanctions because regulations governing disciplinary hearings authorize only BOP staff to sanction inmates and also claiming that the DHO was not impartial.
II. STANDARD OF REVIEW
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). Petitioner's claims are proper under 28 U.S.C. § 2241 and not 28 U.S.C. § 2255 because they concern the manner, location, or conditions of the execution of Petitioner's sentence and not the fact of Petitioner's conviction or sentence. Tucker v. Carlson , 925 F.2d 330, 331 (9th Cir.1990) (stating that a challenge to the execution of a sentence is "maintainable only in a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241"); Montano-Figueroa v. Crabtree , 162 F.3d 548, 549 (9th Cir. 1998).
Further, Petitioner is challenging the execution of his sentence at TCI in Taft, California, which is within the Fresno Division of the Eastern District of California; therefore, the Court has jurisdiction over this petition. See Brown v. United States , 610 F.2d 672, 677 (9th Cir. 1990).
II. REVIEW OF THE PETITION
A. Exhaustion of Administrative Remedies
"As a prudential matter, courts require that habeas petitioners exhaust all available judicial and administrative remedies before seeking relief under § 2241." Ward v. Chavez , 678 F.3d 1042, 1045-1046 (9th Cir. 2012). The exhaustion requirement in § 2241 cases is not required by statute nor a "jurisdictional" prerequisite. It is a prudential limit on jurisdiction and can be waived "if pursuing those [administrative] remedies would be futile." Id .; Castro-Cortez v. INS , 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds, Fernandez-Vargas v. Gonzales , 548 U.S. 30 (2006); Fraley v. U.S. Bureau of Prisons , 1 F.3d 924, 925 (9th Cir. 1993).
Petitioner did not appeal and exhaust his administrative remedies regarding the disciplinary finding. Petitioner argues, however, that any administrative appeal would have been futile since the outcome was based on a BOP policy. (Traverse at 3.) A March 30, 2007, BOP memorandum regarding inmate discipline at private operated facilities authorized private prison employees to serve as DHOs and discipline inmates. (Decl. of Jennifer Vickers ("Vickers Decl.") ¶ 4, ex. 6.) Administrative appeals presenting a challenge to the authority of an employee of a private prison have been denied based on the 2007 memorandum. See e.g., Garcia v. Benov, E.D. Cal. Case No. 1:13-cv-00550-LJO-JLT, ECF No. 13-1 at 40-42; Torres-Sainz v. Benov, E.D. Cal. Case No. 1:13-cv-00896-LJO-SKO, ECF No. 14-1 at 32-36; Kasirem v. Benov, E.D. Cal. Case No. 1:13-cv-01026-LJO-MJS, ECF No. 13-1 at 35-38. Because any attempt to exhaust administrative remedies would be denied based on the BOP memorandum authorizing private prisons to conduct disciplinary proceedings, exhaustion is futile. Ward v. Chavez , 678 F.3d at 1045-1046 (citing, as examples, Fraley , 1 F.3d at 925; Sours v. Chavez, No. 2:08-cv-01903-SRB, Dkt. No. 22, 2009 U.S. Dist. LEXIS 76743 at *2 (D. Ariz. June 17, 2009)); see also McCarthy v. Madigan , 503 ...