1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Roberto Antoine Darden, No. CV-18-00541-TUC-JGZ
10 Petitioner, ORDER
11 v.
12 B. Von Blanckensee,
13 Respondent. 14 15 Before the Court is Magistrate Judge Jacqueline Rateau’s Report and 16 Recommendation (R&R) recommending that the District Court deny Petitioner’s 28 17 U.S.C. § 2241 Petition for Writ of Habeas Corpus. Petitioner has filed an objection and, 18 relatedly, a 28 U.S.C. § 2247 Motion asking the Court to accept as true that Petitioner 19 owns a master lock purchased in 2013. After reviewing the record, the Court will 20 overrule Petitioner’s objections and adopt Judge Rateau’s R&R. The Court will also 21 deny Petitioner’s Motion filed pursuant to 28 U.S.C. § 2247. 22 STANDARD OF REVIEW 23 When reviewing a Magistrate Judge’s Report and Recommendation, this Court 24 “may accept, reject, or modify, in whole or in part, the findings or recommendations 25 made by the magistrate judge.” 28 U.S.C. § 636(b)(1). “[T]he district judge must review 26 the magistrate judge’s findings and recommendations de novo if objection is made, but 27 not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en 28 banc) (emphasis omitted). District courts are not required to conduct “any review at all . . 1 . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 2 (1985). See also 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. 3 DISCUSSION 4 As stated in the R&R,1 Petitioner is currently serving a 600-month sentence for 5 Conspiracy to Produce Child Pornography and Tampering with a Witness, Victim, or 6 Informant. On December 29, 2017, a Bureau of Prisons officer found a homemade 7 weapon—a “lock-n-sock”—in the back compartment of Petitioner’s secured locker. 8 Petitioner was notified of his charge for possessing an instrument that might be used as a 9 weapon that same day. The case was referred to a Discipline Hearing Officer (DHO). In 10 advance of Petitioner’s hearing before the DHO, he was advised of the rights he would 11 have at the hearing, and he indicated that he understood those rights. Although he was 12 advised that the DHO might call witnesses who were reasonably available and had 13 information relevant to the charges, Petitioner waived his right to call witness and his 14 right to have staff representation. 15 At the disciplinary hearing on January 10, 2018, the DHO considered the report 16 prepared by the officer, as well as a photograph taken of the weapon, a memorandum 17 prepared by a senior correctional officer describing the search, and a memorandum 18 detailing chain of custody. The record reflects that Petitioner made no statements 19 denying that the weapon was his or indicating that someone else might have placed it in 20 his locker. At the conclusion of the hearing, the DHO found that Petitioner had 21 committed the charged act, and Petitioner was sanctioned with the loss of 41 days of 22 good time credit. Petitioner was advised of the findings, specific evidence relied on, and 23 reason for the disciplinary action, as well as of his appeal rights. Petitioner then 24 exhausted his administrative remedies and brought this action before the Court. 25 The R&R concluded that the hearing before the DHO and outcome did not violate 26 Petitioner’s due process rights. A prisoner has the right to five procedural safeguards in a 27 proceeding that might result in the loss of good time credits: 1) the right to receive 28 1 All facts contained in this summary appear in the R&R, as well as in Doc. 12-2. 1 written notice of the charges at least 24 hours before the disciplinary hearing; 2) the right 2 to call witnesses, unless it would be unduly hazardous; 3) the right to assistance in 3 preparing and presenting a defense to the charges; 4) the right to a copy of the 4 disciplinary findings; and 5) the right to a hearing before a sufficiently impartial decision 5 maker. Wolff v. McDonnell, 418 U.S. 539, 556-57 (1974). Due process requirements are 6 satisfied where the DHO relies on “some evidence in the record” to decide to revoke 7 good time credits. Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 8 (1985). “Ascertaining whether this standard is satisfied does not require examination of 9 the entire record, independent assessment of the credibility of witnesses, or weighing of 10 the evidence. Instead, the relevant question is whether there is any evidence in the record 11 that could support the conclusion reached by the disciplinary board.” Id. at 455-56; see 12 also Lane v. Salazar, 911 F.3d 942, 951 (9th Cir. 2018). 13 Petitioner first objects to Magistrate Judge Rateau’s finding that he received 14 adequate notice, required under Wolff, of the charges against him, because the report did 15 not “divulge any fact that revealed how he [the officer] determined that the Petitioner and 16 not his cell mate constructively possessed the purported locker.” (Doc. 22, pg. 2.) The 17 record reflects that Petitioner received a copy of the incident report, just hours after the 18 weapon was discovered. Petitioner knew, at the very least, that the officer had recovered 19 the weapon from Petitioner’s locker, and despite having the opportunity to present 20 witnesses and contest the evidence presented to the DHO, Petitioner provided no 21 explanation as to why the weapon might belong to anyone else. And Petitioner now 22 points to no evidence presented to the DHO that he was unprepared to defend against by 23 virtue of having received only the officer’s report and no more. 24 Petitioner next objects to the Magistrate Judge’s finding that the DHO’s decision 25 to revoke his good time credits was supported by “some evidence.” Petitioner’s main 26 arguments supporting this objection are that the decision made in his case was supported 27 by less evidence than was presented in Superintendent, and that the officer who searched 28 his locker never explained why he expected to find a weapon inside. The “some 1 evidence” standard, however, is flexible, and the report provided by the officer of a 2 weapon found inside of Petitioner’s locker, as well as the memoranda describing the 3 search and detailing the chain of custody, satisfied that standard. Petitioner does not 4 describe what additional evidence might reasonably have been presented in a case such as 5 this, short of video surveillance monitoring all activity around the locker or a fingerprint 6 test run on the weapon—either of which might have provided stronger evidence in either 7 direction but neither of which was required in light of what was presented. As for 8 Petitioner’s second argument, the officer was not obligated to provide a reason for having 9 searched Petitioner’s locker. Petitioner does not assert that he had a cognizable privacy 10 interest in the space.
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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Roberto Antoine Darden, No. CV-18-00541-TUC-JGZ
10 Petitioner, ORDER
11 v.
12 B. Von Blanckensee,
13 Respondent. 14 15 Before the Court is Magistrate Judge Jacqueline Rateau’s Report and 16 Recommendation (R&R) recommending that the District Court deny Petitioner’s 28 17 U.S.C. § 2241 Petition for Writ of Habeas Corpus. Petitioner has filed an objection and, 18 relatedly, a 28 U.S.C. § 2247 Motion asking the Court to accept as true that Petitioner 19 owns a master lock purchased in 2013. After reviewing the record, the Court will 20 overrule Petitioner’s objections and adopt Judge Rateau’s R&R. The Court will also 21 deny Petitioner’s Motion filed pursuant to 28 U.S.C. § 2247. 22 STANDARD OF REVIEW 23 When reviewing a Magistrate Judge’s Report and Recommendation, this Court 24 “may accept, reject, or modify, in whole or in part, the findings or recommendations 25 made by the magistrate judge.” 28 U.S.C. § 636(b)(1). “[T]he district judge must review 26 the magistrate judge’s findings and recommendations de novo if objection is made, but 27 not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en 28 banc) (emphasis omitted). District courts are not required to conduct “any review at all . . 1 . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 2 (1985). See also 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. 3 DISCUSSION 4 As stated in the R&R,1 Petitioner is currently serving a 600-month sentence for 5 Conspiracy to Produce Child Pornography and Tampering with a Witness, Victim, or 6 Informant. On December 29, 2017, a Bureau of Prisons officer found a homemade 7 weapon—a “lock-n-sock”—in the back compartment of Petitioner’s secured locker. 8 Petitioner was notified of his charge for possessing an instrument that might be used as a 9 weapon that same day. The case was referred to a Discipline Hearing Officer (DHO). In 10 advance of Petitioner’s hearing before the DHO, he was advised of the rights he would 11 have at the hearing, and he indicated that he understood those rights. Although he was 12 advised that the DHO might call witnesses who were reasonably available and had 13 information relevant to the charges, Petitioner waived his right to call witness and his 14 right to have staff representation. 15 At the disciplinary hearing on January 10, 2018, the DHO considered the report 16 prepared by the officer, as well as a photograph taken of the weapon, a memorandum 17 prepared by a senior correctional officer describing the search, and a memorandum 18 detailing chain of custody. The record reflects that Petitioner made no statements 19 denying that the weapon was his or indicating that someone else might have placed it in 20 his locker. At the conclusion of the hearing, the DHO found that Petitioner had 21 committed the charged act, and Petitioner was sanctioned with the loss of 41 days of 22 good time credit. Petitioner was advised of the findings, specific evidence relied on, and 23 reason for the disciplinary action, as well as of his appeal rights. Petitioner then 24 exhausted his administrative remedies and brought this action before the Court. 25 The R&R concluded that the hearing before the DHO and outcome did not violate 26 Petitioner’s due process rights. A prisoner has the right to five procedural safeguards in a 27 proceeding that might result in the loss of good time credits: 1) the right to receive 28 1 All facts contained in this summary appear in the R&R, as well as in Doc. 12-2. 1 written notice of the charges at least 24 hours before the disciplinary hearing; 2) the right 2 to call witnesses, unless it would be unduly hazardous; 3) the right to assistance in 3 preparing and presenting a defense to the charges; 4) the right to a copy of the 4 disciplinary findings; and 5) the right to a hearing before a sufficiently impartial decision 5 maker. Wolff v. McDonnell, 418 U.S. 539, 556-57 (1974). Due process requirements are 6 satisfied where the DHO relies on “some evidence in the record” to decide to revoke 7 good time credits. Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 8 (1985). “Ascertaining whether this standard is satisfied does not require examination of 9 the entire record, independent assessment of the credibility of witnesses, or weighing of 10 the evidence. Instead, the relevant question is whether there is any evidence in the record 11 that could support the conclusion reached by the disciplinary board.” Id. at 455-56; see 12 also Lane v. Salazar, 911 F.3d 942, 951 (9th Cir. 2018). 13 Petitioner first objects to Magistrate Judge Rateau’s finding that he received 14 adequate notice, required under Wolff, of the charges against him, because the report did 15 not “divulge any fact that revealed how he [the officer] determined that the Petitioner and 16 not his cell mate constructively possessed the purported locker.” (Doc. 22, pg. 2.) The 17 record reflects that Petitioner received a copy of the incident report, just hours after the 18 weapon was discovered. Petitioner knew, at the very least, that the officer had recovered 19 the weapon from Petitioner’s locker, and despite having the opportunity to present 20 witnesses and contest the evidence presented to the DHO, Petitioner provided no 21 explanation as to why the weapon might belong to anyone else. And Petitioner now 22 points to no evidence presented to the DHO that he was unprepared to defend against by 23 virtue of having received only the officer’s report and no more. 24 Petitioner next objects to the Magistrate Judge’s finding that the DHO’s decision 25 to revoke his good time credits was supported by “some evidence.” Petitioner’s main 26 arguments supporting this objection are that the decision made in his case was supported 27 by less evidence than was presented in Superintendent, and that the officer who searched 28 his locker never explained why he expected to find a weapon inside. The “some 1 evidence” standard, however, is flexible, and the report provided by the officer of a 2 weapon found inside of Petitioner’s locker, as well as the memoranda describing the 3 search and detailing the chain of custody, satisfied that standard. Petitioner does not 4 describe what additional evidence might reasonably have been presented in a case such as 5 this, short of video surveillance monitoring all activity around the locker or a fingerprint 6 test run on the weapon—either of which might have provided stronger evidence in either 7 direction but neither of which was required in light of what was presented. As for 8 Petitioner’s second argument, the officer was not obligated to provide a reason for having 9 searched Petitioner’s locker. Petitioner does not assert that he had a cognizable privacy 10 interest in the space. 11 Petitioner further argues that his due process rights were violated when he was 12 denied access to his central file, which might have contained exculpatory information. 13 Petitioner makes this argument for the first time in his 28 U.S.C. § 2241 motion, without 14 actually submitting any of the documents he alleges were contained within the file. The 15 record does not reflect that he made any argument at his DHO hearing to the effect that 16 the locker did not belong to him, or that his cell mate had open access to the locker even 17 if it was in Petitioner’s name. The record also does not reflect that Petitioner asserted at 18 any point that he had been denied critical documents that might have been used in his 19 defense—nor does Petitioner argue even now that he made such an assertion, reflected in 20 the record or otherwise. 21 Finally, Petitioner argues, by way of a 28 U.S.C. § 2247 motion, that the Court 22 should accept a 2013 receipt of purchase for a master lock, and a 2015 inventory 23 reflecting a master lock, as “irrefutable evidence of the fact that petitioner still owns the 24 master lock that he purchased in 2013,” which he argued at the DHO hearing did not look 25 like the lock presented to the DHO. (Doc. 24.) 28 U.S.C. § 2247 states that “[o]n 26 application for a writ of habeas corpus documentary evidence, transcripts of proceedings 27 upon arraignment, plea and sentence and a transcript of the oral testimony introduced on 28 any previous similar application by or in behalf of the same petitioner, shall be 1 admissible in evidence.” Even accepting Petitioner’s submission, the receipt and 2 inventory from years preceding the incident do not negate the finding that a “lock-n- 3 sock” weapon was recovered in his locker. As argued by Responded, “[t]he Bureau was 4 not required to establish that Petitioner purchased the items to make the ‘lock-n-sock,’ 5 merely that he possessed it.” (Doc. 25, pg. 2.) 6 Before Petitioner can appeal this Court’s judgment, a certificate of appealability 7 (COA) must issue. See 28 U.S.C. §2253(c); Fed. R. App. P. 22(b)(1); Rule 11(a) of the 8 Rules Governing Section 2254 Cases. “The district court must issue or deny a 9 certification of appealability when it enters a final order adverse to the applicant.” Rule 10 11(a) of the Rules Governing Section 2254 Cases. Pursuant to 28 U.S.C. § 2253(c)(2), a 11 COA may issue only when the petitioner “has made a substantial showing of the denial of 12 a constitutional right.” The court must indicate which specific issues satisfy this 13 showing. See 28 U.S.C. §2253(c)(3). With respect to claims rejected on the merits, a 14 petitioner “must demonstrate that reasonable jurists would find the district court’s 15 assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 16 U.S. 473, 484 (2000). For procedural rulings, a COA will issue only if reasonable jurists 17 could debate whether the petition states a valid claim of the denial of a constitutional 18 right and whether the court’s procedural ruling was correct. Id. Applying these 19 standards, the Court concludes that a certificate should not issue, as the resolution of the 20 petition is not debatable among reasonable jurists. 21 CONCLUSION 22 Accordingly, 23 IT IS ORDERED that the Report and Recommendation (Doc. 21) is ADOPTED. 24 IT IS FURTHER ORDERED that Petitioner’s Petition for a Writ of Habeas 25 Corpus (Doc. 1) is DISMISSED. 26 IT IS FURTHER ORDERED that Petitioner’s Motion under 28 U.S.C. § 2247 27 (Doc. 24) is GRANTED. 28 IT IS FURTHER ORDERED that a Certificate of Appealability in this case is 1 || DENIED. 2 The Clerk of the Court shall enter judgment accordingly and close the file in this 3 || action. 4 Dated this 30th day of October, 2019. 5 6 7 □□□ Seppe g Honorable Jennifer’(¥ 7fpps 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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