1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Christopher G. White, No. CV-23-0180-TUC-JCH (EJM)
10 Petitioner, REPORT AND RECOMMENDATION 11 v. 12 M. Gutierrez, Warden, 13 Respondent. 14 Currently pending before the Court is Petitioner Christopher G. White’s pro se 15 Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal 16 Custody (“Petition”) (Doc. 1). Respondent has filed a Return and Answer to Petition 17 Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus (“Response”) (Doc. 12) and 18 Petitioner replied (Doc. 17). The Petition is ripe for adjudication. 19 Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter 20 was referred to Magistrate Judge Markovich for Report and Recommendation. The 21 Magistrate Judge recommends that the District Court deny the Petition (Doc. 1). 22 23 I. BACKGROUND 24 A. Confinement History and Claim for Relief 25 At the time Petitioner filed his Petition (Doc. 1), Petitioner was an inmate 26 incarcerated at the United States Penitentiary in Tucson, Arizona (“USP–Tucson”). See 27 Petition (Doc. 1). Currently, Petitioner is incarcerated at USP Coleman II in Sumterville, 28 Florida. See Fed. Bureau of Prisons (“BOP”) Inmate Locater, 1 https://www.bop.gov/inmateloc/ (last visited May 20, 2024). In light of Petitioner’s 2 incarceration at USP–Tucson at the time of the Petition’s filing, this Court retains 3 jurisdiction to consider the Petition. See Francis v. Rison, 894 F.2d 353 (9th Cir. 1990) 4 (“jurisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed 5 by a transfer of the petitioner and the accompanying custodial change.”) (citation 6 omitted). Petitioner is serving a 360-month sentence for six (6) counts of coercion and 7 enticement of a minor in violation of Section 2422(b), Title 18, United States Code. See 8 Response (Doc. 12) Estrada Decl. (Exh. “A”), Inmate Data (Attach. “1”) at 3; see also 9 United States v. White, No. 1:15-CR-00468-RBJ-1, Judgment (D. Colo. June 26, 2017).1,2 10 Petitioner’s projected release date is January 4, 2042. See Fed. BOP Inmate Locater, 11 https://www.bop.gov/inmateloc/ (last visited May 20, 2024). On April 14, 2023, 12 Petitioner filed a Petitioner Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a 13 Person in Federal Custody. See Petition (Doc. 1). Petitioner challenges a disciplinary 14 conviction that resulted in his loss of good time credits. See id. Petitioner alleges that he 15 is innocent of the charge of tattooing/self-mutilation because he was attempting suicide. 16 Id. at 4. The disciplinary process resulted in the disallowance of twenty-seven (27) days 17 of good time credits. See id. at 7. Petitioner urges that Special Housing Unit (“SHU”) 18 “Psychologist K. Hermosillo wrote that the Central Office does not support finding a [sic] 19 inmate that trys [sic] to commit suicide should be charged [sic] with a Code 228.” Id. at 20 4. Petitioner requests this Court order Respondent to reverse the finding of guilt 21 regarding a violation of Code 228, expunge the disciplinary violation, and return the 22 twenty-seven (27) days of good time credits. Id. at 7. 23
24 1 Page citations refer to the Case Management/Electronic Case Files (“CM/ECF”) page 25 number for ease of reference. 2 “The court may judicially notice a fact that is not subject to reasonable dispute because 26 it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately 27 and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). United States District Court (“USDC”) for the District of Colorado orders and 28 proceedings are proper material for judicial notice. See Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006) (taking judicial notice of orders and proceedings before another tribunal). 1 B. Incident Report No. 3646378 2 On June 30, 2022, Petitioner met with his psychologist due to worsening 3 depression. Petition (Doc. 1) at 4. Other members of his unit team were present during 4 the meeting. Id. Petitioner alleges that his “Psychologist told [him] to stop reaching out 5 for help with her, because [his] attempts were making her ‘uncomfortable.’” Id. 6 Petitioner further alleges that “[a]fter the meeting [he] was extremely depressed and 7 while being escorted back to [his] cell by J. Tate, [his] case manager, [he] yelled to the 8 Locked Down Unit of E-1, ‘Don’t trust Psychology Department they will only harm 9 you!’” Id. This occurred at approximately 9:17 a.m., after which Petitioner “was 10 escorted to the Special Housing Unit [(“SHU”)] and placed into a holding cell.” 11 Response (Doc. 12), Estrada Decl. (Exh. “A”), Incident Rpt. No. 3646378 (Attach. “2”) 12 (Doc. 16) at 6; see also Petition (Doc. 1) at 4. “While in the holding cell inmate White 13 banged his head against the cement wall creating a laceration to his forehead.” Response 14 (Doc. 12), Exh. “A,” Attach. “2” (Doc. 16) at 6; see also Petition (Doc. 1) at 4. Petitioner 15 contends that he was having suicidal thoughts, “NOT trying to tattoo or mutilate my skin, 16 but trying to kill myself.” Petition (Doc. 1) at 4 (emphasis in original). “A SHU LT 17 passed by and saw what [he was] doing, told [him] to stop and transferred him to Suicide 18 Watch.” Id.; see also Response (Doc. 12), Exh. “A,” Attach. “2” (Doc. 16) at 6. Later 19 the same date, Lieutenant T. Kehl drafted an incident report, charging Petitioner with 20 Disruptive Conduct–High Most Like 228 – Tattooing or Self-Mutilation in violation of 21 Codes 228 and 299. Response (Doc. 12), Exh. “A,” Attach. “2” (Doc. 16) at 6. 22 C. Disciplinary Proceedings 23 On July 3, 2022, Acting Lieutenant J. Espinoza delivered the incident report to 24 Petitioner. Response (Doc. 12), Estrada Decl. (Exh. “A”), Incident Rpt. No. 3646378 25 (Attach. “2”) (Doc. 16) at 6. Lt. Espinoza also investigated the incident and advised 26 Petitioner of his rights. Id. at 8. Lt. Espinoza indicated that Petitioner did not make any 27 statement and found “the staff’s report of [the] incident to support the incident report 28 code.” Id. 1 On July 5, 2022, Petitioner underwent a psychological evaluation “to determine 2 his competency to undergo pending disciplinary hearing, and to determine responsibility 3 at the time of the alleged incident.” Response (Doc. 12), Estrada Decl. (Exh. “A”), BOP 4 Psych. Svcs. Inst. Disciplinary Process Rpt. (Attach. “2”) (Doc. 16) at 12. K. Hermosillo, 5 Psy.D. noted that Petitioner “is currently diagnosed with Unspecified Personality 6 Disorder and Alcohol Use Disorder, which remain applicable at this time.” Id. at 13. Dr. 7 Hermosillo found that Petitioner was competent and “d[id] not have a mental disease of 8 defect that would impede his ability to understand and assist in the disciplinary process.” 9 Id. Dr. Hermosillo further found that Petitioner was responsible and “d[id] not have a 10 mental disease or defect that would render him unable to appreciate the wrongfulness of 11 his acts.” Id. at 14. Dr. Hermosillo recommended that Petitioner “proceed with the 12 disciplinary process and receive sanctions deemed appropriate by the [Disciplinary 13 Hearing Officer (“DHO”)].” Id. Dr. Hermosillo noted that the “Central Office 14 Psychology Services Branch does not support the use of sanctions for self-injurious 15 behavior, and recommends the use of treatment interventions to address behavior.” Id. 16 On July 7, 2022, Warden M. Gutierrez issued an Advisement of Incident Report 17 Delay(s) to Petitioner, which was also signed by Unit Discipline Committee (“UDC”) 18 member, Correctional Counselor B. Byler, and the Unit Manager. Response (Doc. 12), 19 Estrada Decl. (Exh. “A”), Advisement of Incident Rpt. Delay (Attach. “2”) (Doc. 16) at 20 9. The Advisement notified Petitioner that Incident Report No. 3646378 had been 21 suspended on the date that it was written, June 30, 2022, because of his placement on 22 Suicide Watch. Id. It further noted that the UDC received the Incident Report on July 6, 23 2022, the same day that Petitioner was removed from Suicide Watch. Id. On July 12, 24 2022, Correctional Counselor B. Byler provided Petitioner with a copy of the Advisement 25 of Delay. Id. 26 On July 12, 2022, the UDC conducted its hearing on the incident. Response (Doc. 27 12), Estrada Decl. (Exh. “A”), Incident Rpt. No. 3646378 (Attach. “2”) (Doc. 16) at 7. 28 The UDC advised Petitioner of his rights. Id. Petitioner provided a written statement. 1 Id. Petitioner’s statement urged that the incident report be expunged. Response (Doc. 2 12), Estrada Decl. (Exh. “A”), Petr.’s DHO Stmt. (Attach. “2”) (Doc. 16) at 15. 3 Petitioner outlined his history with BOP mental health services, specifically the June 30, 4 2022, incident and the events which preceded it. Id. Petitioner confirmed that “[t]he 5 incident report tells the rest.” Id. Petitioner noted that he “was let down by staff[,] [and 6 felt he] shouldn’t be punish[ed] for staff neglect of [his] mental health [and] ignoring 7 [his] cries for help.” Id. The UDC referred the matter to the DHO for further disposition 8 and noted that “[t]he alleged violation (s) is serious and warrants consideration for 9 sanctions other than those available to the UDC[.]” Response (Doc. 12), Estrada Decl. 10 (Exh. “A”), Incident Rpt. No. 3646378 (Attach. “2”) (Doc. 16) at 7. The UDC 11 recommended that if the DHO found Petitioner committed the prohibited act, s/he should 12 impose sanctions including a monetary fine, disciplinary segregation, and loss of 13 commissary privileges. Id. The UDC also provided Petitioner with a Notice of 14 Discipline Hearing Before the (DHO) and his rights at that hearing. Id. at 10–11. 15 Petitioner indicated that he did not wish to have a staff representative at his DHO hearing 16 or have any witnesses. Id. at 11. 17 On July 19, 2022, Petitioner had a DHO Hearing before DHO A. Estrada. See 18 Response (Doc. 12), Estrada Decl. (Exh. “A”), Discipline Hr’g Officer Rpt.—Incident 19 Rpt. No. 3646378 (Attach. “2”) (Doc. 16) at 2–5. DHO Estrada noted that on July 12, 20 2022, Correctional Counselor B. Byler had advised Petitioner of his rights before the 21 DHO. Id. at 2, 10. DHO Estrada further noted that Petitioner waived his right to a staff 22 representative. Id. at 2–3, 11. DHO Estrada confirmed that Petitioner had not requested 23 any witnesses. Id. at 3. The DHO noted that Petitioner stated, “I did bang my head[,]” 24 and that his “[w]ritten statement was also provided that eluded [sic] to admitting the 25 charge.” Id. at 2. 26 DHO Estrada noted that Petitioner did not “offer any justification” regarding how 27 the delay in processing the incident report “negatively affected his ability to defend 28 himself at the hearing. Response (Doc. 12), Estrada Decl. (Exh. “A”), Discipline Hr’g 1 Officer Rpt.—Incident Rpt. No. 3646378 (Attach. “2”) (Doc. 16) at 3. DHO Estrada 2 considered the facts presented in the body of the written report; Petitioner’s statement 3 that he had “no comment” during the investigation; Petitioner’s written statement 4 provided during the UDC hearing; Petitioner’s admission to the charge stating, “I did 5 bang my head”; and Petitioner’s mental health evaluation. Id. at 4. DHO Estrada found 6 the staff member’s account of the incident contained in the Incident Report to be credible. 7 Id. DHO Estrada also found that in addition to his other admissions, Petitioner “admitted 8 the charge to the DHO and to the psychologist conducting the [Mental Health 9 Evaluation.]” Id. Accordingly, DHO Estrada determined that Petitioner “committed the 10 prohibited act of tattooing or self-mutilation or any other offense, Code 228.” Id. DHO 11 Estrada imposed sanctions of twenty-seven (27) days disallowed good conduct time 12 (“GCT”); ninety (90) days loss of commissary privileges; and ninety (90) days loss of 13 visiting privileges. Response (Doc. 12), Estrada Decl. (Exh. “A”), DHO Rpt.—Incident 14 No. 3646378 (Attach. “2”) (Doc. 16) at 4–5. On August 9, 2022, DHO Estrada signed 15 the DHO report, and on August 17, 2022, Officer Fellows delivered it to Petitioner. Id. at 16 5. 17 D. Administrative Appeals 18 On August 23, 2022, Petitioner filed his Regional Administrative Remedy Appeal 19 regarding Incident Report No. 3646378. Petition (Doc. 1) at 12. On November 15, 2022, 20 Petitioner’s requested relief was denied. Id. at 11. On January 10, 2023, Petitioner filed 21 a Central Office Administrative Remedy Appeal to the Director. Id. at 13–14. On March 22 28, 2023, Petitioner’s requested relief was denied as untimely. Id. at 9. The Central 23 Office’s rejection gave Petitioner the opportunity to provide staff verification that 24 Petitioner’s untimely filing was not his fault. Id. 25 E. The Instant Habeas 26 On April 14, 2023, Petitioner filed his pro se Petition Under 28 U.S.C. § 2241 for 27 a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1). Petitioner asserts a 28 single ground for relief arising from Incident Report No. 3646378. See Petition (Doc. 1). 1 Petitioner claims that he was innocent of the tattooing/self-mutilation code violation, 2 because he was “NOT trying to tattoo or mutilate [his] skin, but trying to kill [him]self.” 3 Id. at 4 (emphasis in original). Petitioner alleges that his “Psychology Record reflects 4 that on 7/5/2022, SHU Psychologist K. Hermosillo, wrote that the Central Office does not 5 support finding a [sic] inmate that trys [sic] to commit suicide should be charged [sic] 6 with a Code 228.” Id. Petitioner urges that “because my intent was to kill myself 7 because of untreated mental state, and I had no intention to tattoo my body or 8 superficiously [sic] cut myself, I am innocent of Code 228, Tattooing/Self-Mutilation.” 9 Id. Petitioner seeks restoration of the twenty-seven (27) days good conduct time and 10 expungement of Incident Report No. 3646378. Id. at 7. 11 12 II. ANALYSIS 13 A. Jurisdiction—In General 14 “Federal courts are always ‘under an independent obligation to examine their own 15 jurisdiction,’ . . . and a federal court may not entertain an action over which it has no 16 jurisdiction.” Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (quoting 17 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)). “Generally, motions to 18 contest the legality of a sentence must be filed under § 2255 in the sentencing court, 19 while petitions that challenge the manner, location, or conditions of a sentence’s 20 execution must be brought pursuant to § 2241 in the custodial court.” Id. at 864. 21 Therefore, before proceeding to any other issue a court must establish whether a habeas 22 petition is filed pursuant to § 2241 or § 2255 to determine whether jurisdiction is proper. 23 Id. at 865. 24 Here, Petitioner does not claim that the sentencing court imposed an illegal 25 sentence; rather he seeks relief with respect to disciplinary proceedings while 26 incarcerated at a federal facility. As such, Petitioner is challenging the manner, location, 27 or condition of the execution of his sentence. See e.g., Rogers v. United States, 180 F.3d 28 349 (1st Cir. 1999) (Section 2241 petition is appropriate vehicle to challenge the 1 correctness of a jail-time credit determination, once administrative remedies have been 2 exhausted); Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc), 3 (“[c]hallenges to the validity of any confinement or to the particulars affecting its 4 duration are the province of habeas corpus[.]” (quoting Muhammad v. Close, 540 U.S. 5 749, 750 (2004)); Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1991) (a prisoner’s 6 challenge to the “manner in which his sentence was executed . . . [is] maintainable only 7 in a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241”). Such a challenge 8 must be brought pursuant to § 2241 in the custodial court. At the time of filing the 9 Petition, Petitioner was incarcerated at USP – Tucson in Arizona. Accordingly, this 10 Court has jurisdiction over this matter. Francis v. Rison, 894 F.2d 353 (9th Cir. 1990). 11 B. Exhaustion 12 1. In General 13 The Ninth Circuit Court of Appeals has stated: 14 [28 U.S.C. § 2241] does not specifically require petitioners to exhaust 15 direct appeals before filing petitions for habeas corpus. [Footnote omitted.] However, we require, as a prudential matter, that habeas petitioners exhaust 16 available judicial and administrative remedies before seeking relief under § 17 2241. 18 Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds 19 by Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006). “The requirement that federal 20 prisoners exhaust administrative remedies before filing a habeas corpus petition was 21 judicially created; it is not a statutory requirement.” Brown v. Rison, 895 F.2d 533, 535 22 (9th Cir. 1990), overruled on other grounds by Reno v. Koray, 515 U.S. 50, 54–55 23 (1995). “Nevertheless, ‘[p]rudential limits like jurisdictional limits and limits on venue, 24 are ordinarily not optional.’” Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007) 25 (alterations in original) (quoting Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 26 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30 27 (2006)). 28 “Courts may require prudential exhaustion if ‘(1) agency expertise makes agency 1 consideration necessary to generate a proper record and reach a proper decision; (2) 2 relaxation of the requirement would encourage the deliberate bypass of the administrative 3 scheme; and (3) administrative review is likely to allow the agency to correct its own 4 mistakes and to preclude the need for judicial review.’” Id. (quoting Noriega-Lopez v. 5 Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003)). “When a petitioner does not exhaust 6 administrative remedies, a district court ordinarily should either dismiss the petition 7 without prejudice or stay the proceedings until the petitioner has exhausted remedies, 8 unless exhaustion is excused.” Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 9 2011) (citations omitted). Exhaustion may be excused if pursuing an administrative 10 remedy would be futile. Fraley v. United States Bureau of Prisons, 1 F.3d 924, 925 (9th 11 Cir. 1993). 12 If a prisoner is unable to obtain an administrative remedy because of his failure to 13 appeal in a timely manner, then the petitioner has procedurally defaulted his habeas 14 corpus claim. See Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994) (citing Francis, 15 Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990); Martinez v. Roberts, 804 F.2d 570, 16 571 (9th Cir. 1986)). If a claim is procedurally defaulted, the court may require the 17 petitioner to demonstrate cause for the procedural default and actual prejudice from the 18 alleged constitutional violation. See Francis, 894 F.2d at 355 (suggesting that the cause 19 and prejudice test is the appropriate test); Murray v. Carrier, 477 U.S. 478, 492 (1986) 20 (cause and prejudice test applied to procedural defaults on appeal); Hughes v. Idaho State 21 Bd. of Corrections, 800 F.2d 905, 906–08 (9th Cir. 1986) (cause and prejudice test 22 applied to pro se litigants). 23 2. BOP Administrative Procedures 24 The BOP has established an administrative remedy process permitting an inmate 25 to seek review of an issue relating to “any aspect of his/her own confinement.” 28 C.F.R. 26 § 542.10(a). Under that process, an inmate seeking to appeal a DHO decision shall 27 submit the appeal “initially to the Regional Director for the region where the inmate is 28 currently located.” 28 C.F.R. § 542.14(d)(2). “An inmate who is not satisfied with the 1 Regional Director’s response may submit an Appeal on the appropriate form (BP-11) to 2 the General Counsel within 30 calendar days of the date the Regional Director signed the 3 response.” 28 C.F.R. § 542.15(a). The deadlines contained within this process may be 4 extended upon request by the inmate and a showing of a valid reason for delay. 28 5 C.F.R. § 542.15(a); 28 C.F.R. § 542.14(b). An appeal is considered filed on the date it is 6 logged in the Administrative Remedy Index as received. 28 C.F.R. § 542.18. Once an 7 appeal is filed, a Regional Director shall respond within 30 days; General Counsel shall 8 respond within 40 calendar days. Id. “If the inmate does not receive a response within 9 the time allotted for reply, including extension, the inmate may consider the absence of a 10 response to be a denial at that level.” Id. 11 3. Exhaustion in the Instant Case 12 Here, Respondent does not contest Petitioner’s exhaustion of his administrative 13 remedies. Response (Doc. 12) at 2. Petitioner began the administrative appeal process 14 after the DHO decision regarding the incident report. Petitioner received a response from 15 the Regional Director denying relief. See Petition (Doc. 1) at 2, 11–12. Petitioner 16 subsequently filed a Central Office Administrative Remedy Appeal, which was denied as 17 untimely. Id. at 2, 9, 13–14. Accordingly, the Court finds the Petitioner’s claims 18 exhausted; however, even if the exhaustion is faulty, it shall be excused, and the Court 19 will reach the merits. 20 C. Ground One: Actual Innocence 21 Petitioner asserts that “because my intent was to kill myself because of untreated 22 mental state, and I had no intention to tattoo my body or superficiously [sic] cut myself, I 23 am innocent of Code 228, Tattooing/Self-Mutilation.” Petition (Doc. 1) at 4. 24 Conversely, Respondent argues that “Petitioner received the limited due process the 25 Supreme Court requires in disciplinary matters.” Response (Doc. 12) at 6. 26 In the criminal trial context, “[c]laims of actual innocence based on newly 27 discovered evidence have never been held to state a ground for federal habeas relief 28 absent an independent constitutional violation occurring in the underlying state criminal 1 proceeding.” Herrera v. Collins, 506 U.S. 390, 400 (1993). In other circumstances, the 2 Supreme Court of the United States “ha[s] not resolved whether a prisoner may be 3 entitled to habeas relief based on a freestanding claim of actual innocence.” McQuiggin 4 v. Perkins, 569 U.S. 383, 392 (2013) (citing Herrera v. Collins, 506 U.S. 390, 404–405 5 (1993)). “In Herrera, the Supreme Court did not specify what showing would be 6 required for a habeas petitioner to make out a successful freestanding claim of actual 7 innocence[;] [t]he Court stated only that the threshold would be ‘extraordinarily high,’ 8 and that the showing would have to be ‘truly persuasive.’” Carriger v. Stewart, 132 F.3d 9 463, 476 (9th Cir. 1997) (citing Herrera, 506 U.S. at 417, accord id. at 426 (O’Connor, J. 10 concurring)). “[A] petitioner’s claim of actual innocence in the disciplinary habeas 11 context should equate with the claim of actual innocence in the criminal context[,] . . . 12 [with] the standard for an ‘actual innocence’ claim [which] is extremely high.” Napoleon 13 v. Babcock, 2012 WL 1639881, at *8 (E.D. Cal. May 9, 2012) (citing Carriger, 132 F.3d 14 at 476–77). 15 Here, Petitioner’s actual innocence claim relies on a misinterpretation of Dr. 16 Hermosillo’s pre-disciplinary hearing mental health evaluation report. See Petition (Doc. 17 1); Reply (Doc. 17). Petitioner admits that he was banging his head against the wall, but 18 asserts that he was “NOT trying to tattoo or mutilate my skin, but trying to kill myself.” 19 Petition (Doc. 1) at 4 (emphasis in original). Petitioner points to Dr. Hermosillo’s 20 evaluation to urge that “the Central Office does not support finding a [sic] inmate that 21 trys [sic] to commit suicide should be charged [sic] with a Code 228.” Id. This is not 22 what Dr. Hermosillo’s report says. In the Recommendations Regarding Sanctions 23 section, Dr. Hermosillo stated: 24 WHITE has been deemed competent and responsible. It is recommended he proceed with the disciplinary process and receive sanctions deemed 25 appropriate by the DHO. Of note, Central Office Psychology Services 26 Branch does not support the use of sanctions for self-injurious behavior, and recommends the use of treatment interventions to address behavior. 27 28 Reply (Doc. 17) at 4; See also Response (Doc. 12), Estrada Decl. (Exh. “A”), BOP 1 Psych. Svcs. Inst. Disciplinary Process Rpt. (Attach. “2”) (Doc. 16) at 14 (emphasis in 2 original). Although Dr. Hermosillo indicates that the “Central Office Psychology 3 Services Branch does not support the use of sanctions for self-injurious behavior,” he 4 recommends that Petitioner “proceed with the disciplinary process and receive sanctions 5 deemed appropriate by the DHO.” Id. Contrary to Petitioner’s assertion, nothing in Dr. 6 Hermosillo’s report suggests that a suicide attempt bars disciplinary action. See, e.g., 7 Williams v. Thomas, 492 Fed. Appx. 732 (9th Cir. 2012) (reviewing disciplinary hearing 8 on incident reports arising from prisoner’s suicide attempt). Neither has Petitioner 9 presented any BOP policies or other law barring disciplinary actions which arise from a 10 suicide attempt. Accordingly, Petitioner’s actual innocence claim must fail.3 11 D. Due Process 12 Petitioner did not specifically allege a due process violation regarding his 13 disciplinary hearing. See Petition (Doc. 1). Respondent interpreted his claim as one of 14 sufficiency of the evidence and analyzed it under the Due Process Clause. See Response 15 (Doc. 12) at 5–8. The Court finds Respondent’s construction a reasonable interpretation 16 of Petitioner’s claim for relief and will analyze it accordingly. 17 1. Legal Standard 18 “Due process in a prison disciplinary hearing is satisfied if the inmate receives 19 written notice of the charges, and a statement of the evidence relied on by the prison 20 officials and the reasons for disciplinary action.” Zimmerlee v. Keeny, 831 F.2d 183, 186 21 (9th Cir. 1987) (citing Wolff v. McDonnell, 418 U.S. 539, 563–66 (1974)). Additionally, 22 “[t]he inmate has a limited right to call witnesses and to present documentary evidence 23 when permitting him to do so would not unduly threaten institutional safety and goals.” 24 Id. (citations omitted). “Where an illiterate inmate is involved . . . [or] the complexity of 25 the issue makes it unlikely that the inmate will be able to collect and present the evidence 26 necessary for an adequate comprehension of the case, he should be free to seek the aid of 27 28 3 With this finding, the Court is not taking a position regarding the propriety of disciplining an inmate for attempting suicide. 1 a fellow inmate, or if that is forbidden to have adequate substitute aid in the form of help 2 from the staff or from a sufficiently competent inmate designated by the staff.” Wolff, 3 418 U.S. at 570. Finally, inmates have a right to an impartial decision maker. Id. at 571. 4 “Prison disciplinary proceedings[, however,] are not part of a criminal prosecution, and 5 the full panoply of rights due a defendant in such proceedings do[] not apply.” Wolff, 418 6 U.S. at 556. 7 Once the minimal procedural requirements of Wolff are met, the district court must 8 ask “whether there is any evidence in the record that could support the conclusion 9 reached by the disciplinary board.” Superintendent, Mass. Corrections Inst. v. Hill, 472 10 U.S. 445, 455–56 (1985). “[T]he requirements of due process are satisfied if some 11 evidence supports the decision by the prison disciplinary board to revoke good time 12 credits.” Id. “Ascertaining whether this standard is satisfied does not require 13 examination of the entire record, independent assessment of the credibility of witnesses, 14 or weighing of the evidence.” Id. Indeed, “[t]he standard is ‘minimally stringent’ only 15 requiring ‘any evidence in the record that could support the conclusion reached by the 16 disciplinary board.’” Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987) (citing Hill, 472 17 U.S. at 454–56) (emphasis added in Cato). 18 2. Petitioner’s Disciplinary Proceedings 19 The record indicates and Petitioner does not contest that he received written notice 20 of the charges, a statement of the evidence relied on by the prison officials, and the 21 reasons for disciplinary action. See Response (Doc. 12), Estrada Decl. (Exh. “A”), 22 Incident Rpt. No. 3646378 & Discipline Hr’g Officer Rpt. (Attach. “2”) (Doc. 12) at 2, 23 6–8, 10–11. Petitioner did not request any witnesses or seek to present documentary 24 evidence beyond his written statement. Id., Exh. “A,” Attach. “3” at 2–3, 11, 15. Finally, 25 DHO Estrada did not take part in the investigation and Petitioner has not challenged that 26 she was an impartial decision maker. Wolff v. McDonnell, 418 U.S. 538, 571 (1974). 27 BOP Regulations instruct that “[t]he DHO’s decision will be based on at least 28 some facts and, if there is conflicting evidence, on the greater weight of the evidence.” 1 28 C.F.R. § 541.8(f). As discussed in Section II.D.1., supra, the “some evidence” 2 standard is “minimally stringent.” Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987). 3 Here, the DHO indicated that her decision was “based on the facts, evidence, and 4 [Petitioner’s] own admission.” Response (Doc. 12), Estrada Decl. (Exh. “A”), Discipline 5 Hr’g Officer Rpt.—Incident Rpt. No. 3646378 (Attach. “2”) (Doc. 16) at 4. 6 The Court finds that the DHO’s decision was supported by the “greater weight of 7 the evidence” as she stated in her report. Id. Petitioner does not deny that he banged his 8 head against a wall, only that its purpose was not for self-mutilation or tattooing. 9 Furthermore, Lieutenant T. Kehl charged Petitioner with Disruptive Conduct–High Most 10 Like 228 – Tattooing or Self-Mutilation in violation of Codes 228 and 299. Response 11 (Doc. 12), Exh. “A,” Incident Rpt. No. 3646378 (Attach. “2”) (Doc. 16) at 6. Prohibited 12 Act Code 299 states: 13 Conduct which disrupts or interferes with the security or orderly running of the institution or the Bureau of Prisons most like another High severity 14 prohibited act. This charge is to be used only when another charge of 15 High severity is not accurate. The offending conduct must be charged as “most like” one of the listed High severity prohibited acts. 16 17 BOP Program Statement 5270.09, Table 1—Prohibited Acts and Available Sanctions 18 (emphasis added), available at https://www.bop.gov/policy/progstat/5270_009.pdf (last 19 visited May 24, 2024). Thus, the charges levied against Petitioner contemplated that his 20 conduct was not precisely tattooing or self-mutilation, but that was the prohibited act 21 most like the conduct he exhibited. The Court finds that Petitioner’s claim is without 22 merit and his Petition (Doc. 1) will be denied. 23 24 III. CONCLUSION 25 Based on the foregoing, the Court finds that the due process requirements as 26 delineated by Wolff were met in this case. The Court further finds that the DHO findings 27 were supported by “some evidence” as required by Hill. Additionally, the Court finds 28 Petitioner did not meet his burden to demonstrate an actual innocence claim. IV. RECOMMENDATION 2 For the reasons delineated above, the Magistrate Judge recommends that the || District Judge enter an order DENYING Petitioner’s Petition Under 28 U.S.C. § 2241 for 4|| a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1). 5 Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Federal Rules of Civil || Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to 8 || another party’s objections within fourteen (14) days after being served with a copy. Fed. R. Civ. P. 72(b)(2). No replies shall be filed unless leave is granted from the District 10 || Court. If objections are filed, the parties should use the following case number: 11 CV-23-0180-TUC-JCH. 12 Failure to file timely objections to any factual or legal determination of the 13} Magistrate Judge may result in waiver of the right of review. The Clerk of the Court 14]| shall send a copy of this Report and Recommendation to all parties. 15 Dated this 28th day of May, 2024.
17 Hare Eric J. Matkovich 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28
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