Kuykendoll v. Smith

Filing 24

ORDER Petitioner's Petition for Writ of Habeas Corpus 1 is denied. The Report and Recommendation 19 is accepted. The Clerk of Court is directed to terminate this action. Signed by Judge G Murray Snow on 7/9/12. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV-11-1564-PHX-GMS

Calvin Kuykendoll,

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Petitioner,

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v.

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ORDER

Dennis R. Smith,

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Respondent.

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Pending before the Court is a Petition for Writ of Habeas Corpus filed by

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Petitioner Calvin Kuykendoll. (Doc. 1). Magistrate Judge Metcalf has issued a Report

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and Recommendation (“R & R”) in which he recommended the Court deny the petition.

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(Doc. 19). Petitioner objected to the R & R. (Doc. 22). Because objections have been

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filed, the Court will review the petition de novo. See United States v. Reyna-Tapia, 328

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F.3d 1114, 1121 (9th Cir. 2003) (en banc). For the following reasons, the Court accepts

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the R & R and denies the petition.

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BACKGROUND

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Petitioner alleges that procedures used in prison disciplinary proceedings, resulting

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in the loss of good time credits, violated his constitutional right to due process. The facts

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of the proceedings are aptly explained in the R & R and only briefly summarized here.

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On February 4, 2009, while Petitioner was incarcerated in the Federal Correctional

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Institution in Milan, Michigan, he told Correction Officer Raymond Tuberville he would

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report Tuberville’s smoking in the bathroom unless Tuberville “looked out for”

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Petitioner. Two days later, Petitioner told Tuberville to deliver him tobacco in exchange

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for one-hundred dollars, or else he would get Tuberville fired. On February 7, 2009,

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Tuberville reported the incidents to an evening watch lieutenant, Lieutenant Downing.

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The following proceedings ensued.

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On February 7, 2009, Petitioner was placed in administrative detention

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(“segregation”). During the investigatory process, Tuberville’s Incident Report (“IR”)

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was re-written twice in order to edit the name of the violation and the date of the incident.

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(Administrative Record (“AR”) at 6, 8). On April 15, 2009, upon completion of the

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investigation, Disciplinary Hearing Officer (“DHO”), Belinda Auterson, conducted

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Petitioner’s hearing, and Iris Guidry served as his staff representative. Auterson’s

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consequent report found Tuberville’s Incident Report credible and a lack of prejudice

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from any delay in the proceedings. (AR at 18–19).

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After Petitioner’s first appeal, the matter was remanded by the Regional Director

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because a procedural error was found.

(AR at 20).

The “lieutenant who initially

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investigated the incident report was involved in the incident.” (AR at 27). Auterson

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conducted another hearing on August 26, 2009, again finding Petitioner guilty and

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recommending the same loss of good time credits and other privileges. (AR at 28).

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On January 14, 2010, Petitioner filed his second appeal to the Regional Director,

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raising five grounds for relief, two of which are relevant to the current petition. (AR at

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30). Namely, he asserted there was insufficient evidence presented in his hearing and

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that the DHO’s involvement in rewriting the IR precluded her from acting as an impartial

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decision-maker. The appeal was denied. (AR at 31). Petitioner then filed an appeal with

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the General Counsel’s Office asserting similar arguments. (AR at 33). On December 27,

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2010, the General Counsel’s Office denied his appeal.

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On August 9, 2011, Petitioner filed a pro se petition under 28 U.S.C. § 2241 for a

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Writ of Habeas Corpus by a Person in Federal Custody. (Doc. 1). In it he alleges similar

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grounds for relief, namely: (1) he was denied a fair and impartial disciplinary hearing
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officer, in violation of his due process rights; (2) the denial of his request to have staff

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representation for his hearing violated his due process rights; and (3) there was

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insufficient evidence to find him guilty of the disciplinary infractions. Petitioner seeks

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restoration of lost good time credits and expungement of the infraction from his record.

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(Doc. 1).
DISCUSSION

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I.

Legal Standard

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The writ of habeas corpus affords relief to persons in custody in violation of the

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Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3) (2006).

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Habeas corpus jurisdiction is available under § 2241 for a prisoner’s claims that he has

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been denied good time credits without due process of law. Bostic v. Carlson, 884 F.2d

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1267, 1269 (9th Cir. 1989) (citing Preiser v. Rodriguez, 411 U.S. 475, 487–88 (1973)).

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Habeas corpus jurisdiction also exists when a petitioner seeks expungement of a

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disciplinary finding from his record if expungement is likely to accelerate the prisoner’s

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eligibility for parole. Id. (citations omitted).

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In Wolff v. McDonnell, the Supreme Court held prisoners are entitled to

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protections guaranteed by the Due Process Clause. 418 U.S. 539, 563 (1974). However,

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such protections are “fashioned to fit comfortably with the exigencies of prison

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management.” Clardy v. Levi, 545 F.2d 1241, 1245 (9th Cir. 1976). Hence, only the

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“minimum requirements” of procedural due process need be satisfied in a prison

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disciplinary proceeding. Wolff, 418 U.S. at 563. “These are advance written notice of the

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claimed violation and a written statement of the factfinders as to the evidence relied upon

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and the reasons for the disciplinary action taken.” Id. Additionally, unless a DHO’s

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findings are supported by “some evidence in the record,” the revocation of good-time

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credits does not comport with the requirements of due process.

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Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985).

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II.

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Superintendent,

Analysis
The R & R recommends denying Grounds One, Two and Three on the merits.
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Petitioner has filed objections to Magistrate Judge Metcalf’s analysis on all three claims.

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This Court has conducted a de novo review, and adopts Magistrate Judge Metcalf’s R &

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R. The following discussion addresses each of Petitioner’s objections in turn.

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A.

Ground One: Impartial Decision-Maker

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The Ninth Circuit has held that basic to a prisoner’s guarantee of an accurate fact-

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finding determination is the right to be heard by an impartial disciplinary committee. See

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Clutchette v. Procunier, 497 F.2d 809, 820 (9th Cir. 1974) modified, 510 F.2d 613 (9th

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Cir. 1974) rev’d on other grounds sub nom. Baxter v. Palmigiano, 425 U.S. 308 (1976).

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“[P]rovided that no member of the disciplinary committee has participated or will

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participate in the case as an investigating or reviewing officer, or either is a witness or

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has personal knowledge of material facts related to the involvement of the accused

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inmate in the specific alleged infraction (or is otherwise personally interested in the

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outcome of the disciplinary proceeding), a hearing board comprised of prison officials

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will satisfy the due process requirement of a ‘neutral and detached hearing body.’” Id.

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Petitioner objects to Magistrate Judge Metcalf’s finding that the DHO was

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impartial by insisting that: (1) Auterson assisted in re-writing the IR and that the re-write

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changed the name of the charges brought against him; and (2) Auterson misrepresented

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the reason the Regional Director remanded the matter after Petitioner’s first appeal.

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(Doc. 22 at 1, 3, 5).

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First, even if Auterson assisted in re-writing the IR by editing the name of the
charge alleged, this would not suffice to show bias or partiality.

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On February 24, 2009, the first IR was delivered to Petitioner, listing the charges

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as follows: (1) “Extortion, blackmail, protection: Demanding or receiving money or

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anything of value in return for protection against others, to avoid bodily harm, or under

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threat of informing;” (2) “Giving or offering an official or staff member a bribe, or

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anything of value.” (AR at 2). On February 27, a second IR was delivered to Petitioner.

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The new IR amended the first charge to: “Threatening another with bodily harm or any

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other offense.” (AR at 6). On March 28, 2007, the final IR listed both charges in an
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identical manner as found in the first. (AR at 8). The “date of incident” was first

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described as “04 February 2009 to 23 February 2009,” but was noted as “04 February

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2009” in the final IR. (AR at 3, 6, 8). The substance of the description of the incident

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remained unchanged. Id.

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Supposing, arguendo, Auterson did adjust the names of the violations mentioned

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in the IR, this does not demonstrate bias on her part. Petitioner failed to demonstrate how

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a DHO’s involvement in clarifying an IR’s charges creates bias or prevents an inmate

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from adequately defending himself. “The function of a [] judge includes intervention in

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order to clarify issues, insure the orderly presentation of evidence and expedite the trial.”

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U.S. v. Trotter, 529 F.2d 806, 814 (3d Cir. 1976). Impartiality is not lost by intervention

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of this sort.

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Further, due process does not preclude prison management from re-naming the

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violations alleged in the IR. One purpose of the IR is to provide inmates with adequate

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notice regarding the charges against which they will have to provide a defense. See

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Wolff, 418 U.S. at 563–64 (stating that “the function of notice [of an alleged infraction] is

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to give the charged party a chance to marshal the facts in his defense”). In this case, any

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of the three IRs delivered served to notify Petitioner that he would be charged with

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approaching an officer in a manner he ought not. See Bostic v. Carlson, 884 F.2d 1267,

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1270–71 (9th Cir. 1989) (finding that an adjustment in the IR to say “possession of

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contraband” instead of “stealing” did not violate due process under Wolff).

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Petitioner makes a general objection to Magistrate Judge Metcalf’s finding that

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there “is no due process right to a fair and impartial decision-maker” in a prison

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disciplinary hearing.

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recommendation in the R & R. To the contrary, Magistrate Judge Metcalf stated the

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DHO must be “sufficiently impartial.” (Doc. 19 at 10) (citing Wolff, 418 U.S. at 571).

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This requisite level of impartiality does not preclude a DHO from intervening in the

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manner Petitioner alleges occurred in his hearing.

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(Doc. 22 at 5).

However, this objection misconstrues the

Second, Petitioner accuses Auterson of fabricating the reason his case was
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remanded from the Regional Director. He insists the fabrication “regarding the remand

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on procedural error ... is tantamount, if not worse, to suppressing evidence.” (Doc. 22 at

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6). There is no reason to believe Auterson misrepresented the finding by the Regional

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Director. The Court finds no evidence suggesting a fabrication, aside from Petitioner’s

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raw accusation, and will therefore not infer bias from Auterson’s statement that the case

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was remanded because the “lieutenant who initially investigated the incident report was

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involved in the incident.” (R. at 27).

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B.

Ground Two: Lack of Representation

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Magistrate Judge Metcalf recommended dismissing claim two because “[t]he

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record reflects that Petitioner waived any right to staff representation” in his second

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hearing, upon learning Guidry was not available.

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surrounding whether Petitioner actually waived the offer for staff representation remain

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in dispute. In any respect, inmates do not “have a right to either retained or appointed

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counsel in disciplinary hearings.” Baxter v. Palmigiano, 425 U.S. 308, 315 (citation

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omitted); but see Wolff, 418 U.S. at 570 (suggesting a right to “substitute aid in the form

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of help from staff” might exist where an illiterate inmate is involved); cf. Bostic v.

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Carlson, 884 F.2d 1267, 1274 (9th Cir. 1989) (holding “an inmate has no claim for

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ineffective assistance of counsel at a disciplinary hearing” in response to Petitioner’s

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claim he was denied effective assistance by a staff representative). Guidry’s

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unavailability to assist Petitioner during his second hearing does not amount to a

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violation of Petitioner’s due process rights.

(Doc. 19 at 11–12).

The facts

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C.

Ground Three: Insufficient Evidence

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Petitioner objected to Magistrate Judge Metcalf’s recommendation that the DHO

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findings be upheld because they are supported by “some evidence.” (Doc. 19 at 14; Doc.

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22 at 7–8). The Supreme Court has held that, unless a DHO’s findings are supported by

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“some evidence in the record,” the revocation of good-time credits does not comport with

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the minimum requirements of due process. Hill, 472 U.S. at 454. Petitioner contends,

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“[t]o hold that the ‘some evidence’ standard [supersedes] [] due process violations would
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eviscerate any due process protections [] incarcerated persons might have.” (Doc. 22 at

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8). However, Magistrate Judge Metcalf did not suggest the some evidence standard

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displaces inmates’ due process rights. Rather, the R & R states that “‘Hill in no way

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abrogated the due process requirements enunciated in Wolff, but simply held that in

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addition to those requirements, revocation of good-time credits does not comport with

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‘the minimum requirements of procedural due process,’ unless the findings are supported

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by some evidence in the record.’” (Doc. 19 at 13) (citing Edwards v. Balisok, 520 U.S.

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641, 648 (1997)).

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There is evidence which supports the DHO’s revocation of Petitioner’s good-time

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credits. For instance, Tuberville submitted an affidavit describing incidents during which

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Petitioner attempted to bribe and compromise Tuberville. See Bostic, 884 F.2d at 1271

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(“The reporting officer’s testimony constituted sufficient evidence to support the finding

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of guilty.”). Petitioner, meanwhile, fails to proffer any evidence that the revocation of

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good-time credits did not comport with the minimum requirements of due process. The

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R & R therefore correctly concluded Petitioner’s Petition is without merit.
CONCLUSION

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As Magistrate Judge Metcalf noted in the R & R, Petitioners grounds for relief–the

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lack of an impartial hearing officer, denial of representation and assertion of insufficient

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evidence–are all unsupported by the evidence in the record. Accordingly, the Court

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denies the Petition and accepts the R & R. For the reasons outlined in the R & R, the

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Court will not rule on a Certificate of Appealability.

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IT IS THEREFORE ORDERED:

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1.

Petitioner’s Petition for the Writ of Habeas Corpus (Doc. 1) is denied.

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2.

The Report and Recommendation (Doc. 19) is accepted.

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3.

The Clerk of Court is directed to terminate this action.

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Dated this 9th day of July, 2012.

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