Burnam v. USP Lompoc et al

Filing 22

ORDER ADOPTING 19 Report and Recommendation. The amended habeas petition (Doc. 8 ) is DENIED and DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal is DENIED because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Senior Judge Paul G Rosenblatt on 10/7/13. (LSP)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Kenneth Burnam,
Petitioner,

10
11
12
13
14
15
16
17
18
19
20

v.
Dennis R. Smith, Warden,
Respondent.

)
)
)
)
)
)
)
)
)

No. 12-CV-128-PHX-PGR (MHB)

ORDER

Pending before the Court is Magistrate Judge Burns’ Report and Recommendation (“R
& R”) (Doc. 19), which recommends the denial of Petitioner’s amended petition for writ of
habeas corpus, filed March 16, 2012, pursuant to 28 U.S.C. § 2254 (Doc. 8). For the reasons
set forth below, the Court will adopt the R & R.
DISCUSSION
On February 23, 2011, while Petitioner was incarcerated at the United States
Penitentiary in Lompoc, California, an Incident Report was prepared charging him with

21
Making Sexual Proposals. Ultimately, the Disciplinary Hearing Officer (“DHO”) determined
22
23
24
25
26
27
28

that the evidence supported a different and lesser charge—Interfering with Staff in
Performance of Duty—and sanctioned Petitioner accordingly. Petitioner argues that his due
process rights were violated because he was not provided advance notice of the reduced
charge and therefore was unable to defend himself adequately.
The R & R found that Petitioner was afforded the due process rights to which he was
entitled under Wolff v. McDonnell, 418 U.S. 539, 563–67 (1974). (Doc. 19 at 4.) He was

1

provided a copy of the Incident Report; advised of, and waived, his right to call witnesses

2

and have the assistance of a staff representative; provided a copy of the disciplinary report;

3

and he appeared before a sufficiently impartial decision maker. (Id.) The R & R also found

4

that the decision of the DHO was supported by “some evidence” as required by

5

Superintendent v. Hill, 472 U.S. 445, 454–55 (1985). (Id. at 7.)

6

Having reviewed the matter de novo in the light of Petitioner’s objections (Doc. 20),

7

the Court agrees with Magistrate Judge Burns that Petitioner’s due process rights were not

8

violated. In concluding that Petitioner committed the lesser violation, the DHO’s detailed

9

findings took into account all of the evidence concerning to the incident, which included the

10
11
12
13
14
15
16

facts relevant to both violations. Petitioner was not deprived of the opportunity to present any
relevant evidence, and the evidence cited by the DOH was sufficient to support a finding of
Interference with Staff.
Accordingly,
IT IS HEREBY ORDERED that the Report and Recommendation (Doc. 19) is
ADOPTED IN FULL. The amended habeas petition (Doc. 8) is DENIED and DISMISSED
WITH PREJUDICE.

17
IT IS FURTHER ORDERED that a Certificate of Appealability and leave to proceed
18
19
20
21

in forma pauperis on appeal is DENIED because Petitioner has not made a substantial
showing of the denial of a constitutional right.
DATED this 7th day of October, 2013.

22
23
24
25
26
27
28
- 2 -