2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 JOEL GONZALEZ, Case No. 1:21-cv-01149-SKO (HC)
12 Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATION TO 14 DISMISS PETITION FOR WRIT OF HABEAS CORPUS 15 A. CIOLLI, Warden, [30-DAY OBJECTION DEADLINE] 16 Respondent.
17 18 Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition 19 for writ of habeas corpus pursuant to 28 U.S.C. § 2241. He is currently in the custody of the 20 Bureau of Prisons (“BOP”) at the United States Penitentiary in Atwater, California. He 21 challenges a disciplinary hearing in which he was found guilty of violating BOP Code 296 for 22 email abuse for which he was sanctioned with 27 days loss of good time credits, 30 days of 23 disciplinary segregation, and loss of privileges. (Doc. 1 at 2.) 24 Petitioner appears to claim that because he offered “no comment” in response to the 25 charges, a “case or controversy” did not exist, and therefore the Disciplinary Hearing Officer 26 (“DHO”) lacked jurisdiction. Because it is clear that Petitioner fails to state a cognizable federal 27 claim for relief, the Court will recommend the petition be DISMISSED with prejudice. 1 I. BACKGROUND 2 On November 6, 2020, an incident report was created concerning an incident which took 3 place on October 28, 2020. The description of the incident is as follows:
4 On November 6, 2020, at approximately 8:50 a.m., at the conclusion of a review of an outgoing electronic mail (e-mail) message to e-mail address 5 publiteOa@gmail.com Inmate Gonzalez, Joel Reg. No. 79653-053 account, I discovered the e-mail being used by inmate Gonzalez is a third party text service. 6 On October 28, 2020, at approximately 11:19 a.m., an e-mail message was sent to 7 publiteOa@gmail.com stating, “what u talking about me lady anyways how u doing how the kids?” The subject line of the e-mail contained the number (5703286434). 8 On October 29, 2020, at approximately 9:44 a.m., an e-mail was sent to 9 publiteOa@gmail.com stating “that’s how I got to this program a puertorican from Mcreary u.s.p. medijo go to the program and atwater u.s.p. and from there go a FCI 10 so a I when I don’t run with nobody since day one you herrr I don’t need them shit they need me so dolo solo kid!:)”. The subject line of the e-mail contained the 11 number (8132300356).
12 Further investigation of the e-mail address and the numbers contained in the body of the e-mail address was generated by a third party text service. The ten numbers 13 (5703286434) and (8132300356) contained in the subject line of the e-mail are actually phone numbers which the messages are forwarded to. A search of 14 TRULINCS revealed phone number (570) 328-6434 and (813) 230-0356 are solely used and contacted by Inmate Gonzalez who is currently housed at USP Atwater. 15 Inmate Gonzalez utilizing a third party text and email service inhibited my ability 16 to monitor the frequency of his electronic mail use, the e-mail address contacted, and circumvents monitoring of his communications. This is a violation of Program 17 Statement 4500.12 (Section 14 Trust Fund Limited Inmate Computer System) and jeopardizes the safety, security and orderly operations of the institution. Inmate 18 Gonzalez, Joel Reg. No. 79653-053 was identified using Sentry, BOPWARE and TRULINCS. 19 20 (Doc. 1 at 14.) 21 On November 6, 2020, at approximately 9:51 a.m., the incident report was delivered to 22 Petitioner charging him with “Mail Abuse (Electronic Mail)” in violation of BOP Offense Code 23 296, thereby giving him advanced written notice of the charge. (Doc. 1 at 14.) He was advised 24 of his rights on November 7, 2020, but he refused to sign the form. (Doc. 1 at 15.) A disciplinary 25 hearing was held on November 10, 2020. (Doc. 1 at 17.) He declined his right to a staff 26 representative, declined to call any witnesses, and declined to present any documentary evidence. 27 (Doc. 1 at 17.) Petitioner did not admit or deny the charges and did not make a statement. (Doc. 1 Petitioner guilty of committing the prohibited act of Mail Abuse. (Doc. 1 at 18.) The DHO 2 sanctioned Petitioner with 27 days loss of good time credits, 30 days of disciplinary segregation, 3 and loss of privileges. (Doc 1 at 2.) Petitioner was provided a copy of the decision on November 4 18, 2020. (Doc. 1 at 20.) 5 II. DISCUSSION 6 A. Jurisdiction 7 Writ of habeas corpus relief extends to a person in custody under the authority of the United 8 States. See 28 U.S.C. § 2241. While a federal prisoner who wishes to challenge the validity or 9 constitutionality of his conviction must bring a petition for writ of habeas corpus pursuant to 28 10 U.S.C. § 2255, a petitioner challenging the manner, location, or conditions of that sentence's 11 execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. See, e.g., 12 Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990); Capaldi v. Pontesso, 135 F.3d 1122, 13 1123 (6th Cir. 1998); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United 14 States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991). To receive relief under 28 U.S.C. § 2241 15 a petitioner in federal custody must show that his sentence is being executed in an illegal, but not 16 necessarily unconstitutional, manner. See, e.g., Clark v. Floyd, 80 F.3d 371, 372, 374 (9th Cir. 17 1995) (contending time spent in state custody should be credited toward federal custody); Jalili, 18 925 F.2d at 893-94 (asserting petitioner should be housed at a community treatment center); 19 Barden, 921 F.2d at 479 (arguing Bureau of Prisons erred in determining whether petitioner could 20 receive credit for time spent in state custody); Brown, 610 F.2d at 677 (challenging content of 21 inaccurate pre-sentence report used to deny parole). 22 In this case, Petitioner challenges the execution of his sentence. Therefore, the Court has 23 jurisdiction to consider the petition pursuant to 28 U.S.C. § 2241. 24 B. Venue 25 A petitioner filing a petition for writ of habeas corpus under 28 U.S.C. § 2241 must file the 26 petition in the judicial district of the petitioner's custodian. Brown, 610 F.2d at 677. Petitioner 27 is in the custody of the Bureau of Prisons at USP-Atwater, which is located within the jurisdiction 1 C. Exhaustion 2 Before filing a petition for writ of habeas corpus, a federal prisoner challenging any 3 circumstance of imprisonment must first exhaust all administrative remedies. Martinez v. 4 Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Chua Han Mow v. United States, 730 F.2d 1308, 5 1313 (9th Cir.
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2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 JOEL GONZALEZ, Case No. 1:21-cv-01149-SKO (HC)
12 Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATION TO 14 DISMISS PETITION FOR WRIT OF HABEAS CORPUS 15 A. CIOLLI, Warden, [30-DAY OBJECTION DEADLINE] 16 Respondent.
17 18 Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition 19 for writ of habeas corpus pursuant to 28 U.S.C. § 2241. He is currently in the custody of the 20 Bureau of Prisons (“BOP”) at the United States Penitentiary in Atwater, California. He 21 challenges a disciplinary hearing in which he was found guilty of violating BOP Code 296 for 22 email abuse for which he was sanctioned with 27 days loss of good time credits, 30 days of 23 disciplinary segregation, and loss of privileges. (Doc. 1 at 2.) 24 Petitioner appears to claim that because he offered “no comment” in response to the 25 charges, a “case or controversy” did not exist, and therefore the Disciplinary Hearing Officer 26 (“DHO”) lacked jurisdiction. Because it is clear that Petitioner fails to state a cognizable federal 27 claim for relief, the Court will recommend the petition be DISMISSED with prejudice. 1 I. BACKGROUND 2 On November 6, 2020, an incident report was created concerning an incident which took 3 place on October 28, 2020. The description of the incident is as follows:
4 On November 6, 2020, at approximately 8:50 a.m., at the conclusion of a review of an outgoing electronic mail (e-mail) message to e-mail address 5 publiteOa@gmail.com Inmate Gonzalez, Joel Reg. No. 79653-053 account, I discovered the e-mail being used by inmate Gonzalez is a third party text service. 6 On October 28, 2020, at approximately 11:19 a.m., an e-mail message was sent to 7 publiteOa@gmail.com stating, “what u talking about me lady anyways how u doing how the kids?” The subject line of the e-mail contained the number (5703286434). 8 On October 29, 2020, at approximately 9:44 a.m., an e-mail was sent to 9 publiteOa@gmail.com stating “that’s how I got to this program a puertorican from Mcreary u.s.p. medijo go to the program and atwater u.s.p. and from there go a FCI 10 so a I when I don’t run with nobody since day one you herrr I don’t need them shit they need me so dolo solo kid!:)”. The subject line of the e-mail contained the 11 number (8132300356).
12 Further investigation of the e-mail address and the numbers contained in the body of the e-mail address was generated by a third party text service. The ten numbers 13 (5703286434) and (8132300356) contained in the subject line of the e-mail are actually phone numbers which the messages are forwarded to. A search of 14 TRULINCS revealed phone number (570) 328-6434 and (813) 230-0356 are solely used and contacted by Inmate Gonzalez who is currently housed at USP Atwater. 15 Inmate Gonzalez utilizing a third party text and email service inhibited my ability 16 to monitor the frequency of his electronic mail use, the e-mail address contacted, and circumvents monitoring of his communications. This is a violation of Program 17 Statement 4500.12 (Section 14 Trust Fund Limited Inmate Computer System) and jeopardizes the safety, security and orderly operations of the institution. Inmate 18 Gonzalez, Joel Reg. No. 79653-053 was identified using Sentry, BOPWARE and TRULINCS. 19 20 (Doc. 1 at 14.) 21 On November 6, 2020, at approximately 9:51 a.m., the incident report was delivered to 22 Petitioner charging him with “Mail Abuse (Electronic Mail)” in violation of BOP Offense Code 23 296, thereby giving him advanced written notice of the charge. (Doc. 1 at 14.) He was advised 24 of his rights on November 7, 2020, but he refused to sign the form. (Doc. 1 at 15.) A disciplinary 25 hearing was held on November 10, 2020. (Doc. 1 at 17.) He declined his right to a staff 26 representative, declined to call any witnesses, and declined to present any documentary evidence. 27 (Doc. 1 at 17.) Petitioner did not admit or deny the charges and did not make a statement. (Doc. 1 Petitioner guilty of committing the prohibited act of Mail Abuse. (Doc. 1 at 18.) The DHO 2 sanctioned Petitioner with 27 days loss of good time credits, 30 days of disciplinary segregation, 3 and loss of privileges. (Doc 1 at 2.) Petitioner was provided a copy of the decision on November 4 18, 2020. (Doc. 1 at 20.) 5 II. DISCUSSION 6 A. Jurisdiction 7 Writ of habeas corpus relief extends to a person in custody under the authority of the United 8 States. See 28 U.S.C. § 2241. While a federal prisoner who wishes to challenge the validity or 9 constitutionality of his conviction must bring a petition for writ of habeas corpus pursuant to 28 10 U.S.C. § 2255, a petitioner challenging the manner, location, or conditions of that sentence's 11 execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. See, e.g., 12 Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990); Capaldi v. Pontesso, 135 F.3d 1122, 13 1123 (6th Cir. 1998); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United 14 States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991). To receive relief under 28 U.S.C. § 2241 15 a petitioner in federal custody must show that his sentence is being executed in an illegal, but not 16 necessarily unconstitutional, manner. See, e.g., Clark v. Floyd, 80 F.3d 371, 372, 374 (9th Cir. 17 1995) (contending time spent in state custody should be credited toward federal custody); Jalili, 18 925 F.2d at 893-94 (asserting petitioner should be housed at a community treatment center); 19 Barden, 921 F.2d at 479 (arguing Bureau of Prisons erred in determining whether petitioner could 20 receive credit for time spent in state custody); Brown, 610 F.2d at 677 (challenging content of 21 inaccurate pre-sentence report used to deny parole). 22 In this case, Petitioner challenges the execution of his sentence. Therefore, the Court has 23 jurisdiction to consider the petition pursuant to 28 U.S.C. § 2241. 24 B. Venue 25 A petitioner filing a petition for writ of habeas corpus under 28 U.S.C. § 2241 must file the 26 petition in the judicial district of the petitioner's custodian. Brown, 610 F.2d at 677. Petitioner 27 is in the custody of the Bureau of Prisons at USP-Atwater, which is located within the jurisdiction 1 C. Exhaustion 2 Before filing a petition for writ of habeas corpus, a federal prisoner challenging any 3 circumstance of imprisonment must first exhaust all administrative remedies. Martinez v. 4 Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Chua Han Mow v. United States, 730 F.2d 1308, 5 1313 (9th Cir. 1984); Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). The requirement that 6 federal prisoners exhaust administrative remedies before filing a habeas corpus petition was 7 judicially created; it is not a statutory requirement. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 8 1990). Thus, “because exhaustion is not required by statute, it is not jurisdictional.” Id. If 9 Petitioner has not properly exhausted his claims, the district court, in its discretion, may either 10 “excuse the faulty exhaustion and reach the merits or require the petitioner to exhaust his 11 administrative remedies before proceeding in court.” Id. 12 The first step in seeking administrative remedies is a request for informal resolution. 28 13 C.F.R. § 542.13. When informal resolution procedures fail to achieve sufficient results, the BOP 14 makes available to inmates a formal three-level administrative remedy process: (1) a Request for 15 Administrative Remedy (“BP-9”) filed at the institution where the inmate is incarcerated; (2) a 16 Regional Administrative Remedy Appeal (“BP-10”) filed at the Regional Office for the 17 geographic region in which the inmate’s institution is located; and (3) a Central Office 18 Administrative Remedy Appeal (“BP-11”) filed with the Office of General Counsel. 28 C.F.R. 19 § 542.10 et seq. 20 Based on the exhibits attached to the petition, it appears that Petitioner has exhausted his 21 administrative remedies. (Doc. 1 at 13.) 22 D. Review of Petition 23 Prisoners cannot be entirely deprived of their constitutional rights, but their rights may be 24 diminished by the needs and objectives of the institutional environment. Wolff v. McDonnell, 25 418 U.S. 539, 555 (1974). Prison disciplinary proceedings are not part of a criminal prosecution, 26 so a prisoner is not afforded the full panoply of rights in such proceedings. Id. at 556. Thus, a 27 prisoner’s due process rights are moderated by the “legitimate institutional needs” of a prison. 1 v. Hill, 472 U.S. 445, 454-455 (1984)). 2 In the context of prison disciplinary proceedings, due process requires that the prisoner 3 receive the following procedural guarantees: (1) advance written notice of at least 24 hours of 4 the disciplinary charges; (2) an impartial hearing body; (3) an opportunity, when consistent with 5 institutional safety and correctional goals, to call witnesses and present documentary evidence in 6 his defense; and (4) a written statement by the factfinder of the evidence relied on and the reasons 7 for the disciplinary action. Hill, 472 U.S. at 454; Wolff, 418 U.S. at 563-567. Petitioner does 8 not dispute that he received all of the above procedural due process guarantees. Nor does 9 Petitioner contend that the charges were not supported by evidence. Therefore, all due process 10 guarantees were fulfilled, and Petitioner fails to state a federal claim for relief. 11 Petitioner’s sole argument is that because he offered no comment at the hearing, there was 12 no case or controversy, and therefore the DHO lacked jurisdiction to find him guilty. This 13 argument is frivolous. Petitioner was charged with the offense of mail abuse. The charge was 14 the “case or controversy” at issue. He was found guilty of the offense based on the DHO’s review 15 of the evidence. Petitioner simply did not offer a defense or contest the charge. 16 In summary, it is undisputed that Petitioner was provided all due process guarantees. The 17 petition should be dismissed. 18 III. ORDER 19 IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign a District 20 Judge to this case. 21 IV. RECOMMENDATION 22 The Court HEREBY RECOMMENDS that the petition for writ of habeas corpus be 23 DISMISSED WITH PREJUDICE. 24 This Findings and Recommendation is submitted to the assigned District Judge pursuant to 25 the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the 26 United States District Court, Eastern District of California. Within thirty (30) days after service 27 of the proposed Findings and Recommendation, Petitioner may file written objections with the 1 Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 2 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within the specified 3 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 4 (9th Cir. 1991). 5 IT IS SO ORDERED. 6
7 Dated: August 9, 2021 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 8
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