Weakley v. Wynn

Filing 18

ORDER: J.T. Shartle, Warden, is SUBSTITUTED as Respondent for Louis W. Winn, Jr.. Petitioner's Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1 ) is DENIED. The Clerk of the Court shall enter judgment and close its file in this matter. Signed by Magistrate Judge Bruce G Macdonald on 9/15/2017. (DPS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Paul Raymond Weakley,

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Petitioner,

No. CV-14-02230-TUC- BGM
ORDER

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v.
J. T. Shartle, Warden,

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Respondent.

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Currently pending before the Court is Petitioner Paul Raymond Weakley’s pro se
Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal

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Custody (“Petition”) (Doc. 1). Respondent has filed his Return and Answer to Petition

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Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus and Motion to Dismiss Petition

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(“Response”) (Doc. 12). Petitioner filed his Response to Defendant’s Motion to Dismiss

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(Doc. 14).

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As an initial matter, Petitioner named Louis Winn, Warden of the United States

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Penitentiary–Tucson (“USP–Tucson”) as the Respondent. See Amended Petition (Doc.

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10). The Court takes judicial notice, however, that Louis Winn is no longer warden of
USP–Tucson. As such, the Court will substitute the new Warden of USP–Tucson, J. T.

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Shartle, as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

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I.

PROCEDURAL BACKGROUND
Petitioner is currently incarcerated at the United States Penitentiary (“USP”) in

Tucson, Arizona.

See Fed. Bureau of Prisons (“BOP”) Inmate Locater,

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https://www.bop.gov/inmateloc/ (last visited September 5, 2017). Petitioner is serving a

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one hundred twenty (120) month sentence from the Middle District of Pennsylvania for

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being a Felon in Possession of Firearms in violation of 18 U.S.C. §922(g)(1) and a

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concurrent life sentence for Conspiracy Relating to Racketeer Influenced and Corrupt

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Organizations in violation of 18 U.S.C. § 1962(d). See Answer (Doc. 12), Huband Decl.

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(Exh. “A”), United States District Court (“USDC”) M.D. Pa., Case No. 3:CR-04-161,

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Judgment in a Criminal Case (Attach. “2”) & USDC M.D. Pa., Case No. 3:CR-08-038,

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Judgment in a Criminal Case (Attach. “4”). In light of Petitioner’s life sentence, he has
no projected release date. See Answer (Doc. 12), Huband Decl. (“Exh. “A”), Public
Information Inmate Data (Attach. “1”).

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Petitioner challenges a disciplinary conviction that resulted in his loss of good

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time credits. Petitioner alleges twenty-two (22) grounds for relief as follows: (1) the

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incident report was rewritten, and as such was not reviewed with him within twenty-four

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(24) hours after staff became aware of the incident, in violation of Petitioner’s due

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process rights. Additionally, there is no policy or statute which authorizes a “rewrite”;

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(2) the rewritten incident report was reviewed with Petitioner allegedly nine (9) days late,

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in violation of his due process rights; (3) the Bureau of Prisons (“BOP”) allegedly
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violated its own policy by failing to notify Petitioner “immediately” regarding a delay in
his Unit Discipline Committee (“UDC”) hearing, in violation of his due process rights;

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(4) Petitioner’s UDC hearing was allegedly held thirty-five (35) days late, in violation of
his due process rights; (5) Petitioner’s staff representative informed him, at the time of
the Discipline Hearing Officer (“DHO”) hearing, that the video Petitioner requested was

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not available, as did DHO Petricka. Petitioner alleges that this denial of his right to

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present evidence in his defense, violated his due process rights; (6) after the denial of

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Petitioner’s request for the video evidence, he complained to DHO Petricka that his staff

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representative was ineffective, and requested a new representative. This request was

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denied, and Petitioner alleges that it violated his due process rights; (7) Petitioner was

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allegedly not allowed to present the evidence he sought to introduce, in violation of his

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due process rights; (8) surveillance video is recorded over every thirty (30) days, and due

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to the delays in the disciplinary process Petitioner did not go before the DHO prior to the
video being destroyed, in violation of his to process right; (9) Petitioner requested at the
DHO hearing to review, or have his staff representative review, the “investigating

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officer’s report.” DHO Petricka denied this request, allegedly in violation of Petitioner’s

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due process rights; (10) the Alco-Sensor was used to analyze the suspected liquid, which

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Petitioner asserts is only a breathalyzer, and its use in this case violated his due process

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rights; (11) DHO Petricka allegedly spoke with the special investigations section, and

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conducted her own investigation. Allegedly Petitioner and his staff representative were

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not allowed to review this evidence, thereby violating his due process rights; (12) because

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statute and policy for bid that DHO from acting as an “investigator,” which DHO
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Petricka allegedly did, Petitioner alleges his due process rights were violated; (13) DHO
Petricka did not properly consider Petitioner’s arguments regarding accessibility of the

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closet and his proclaimed innocence, depriving him of a fair and impartial hearing; (14)
Petitioner’s cellmate was given an identical incident report, but found “not guilty,”
demonstrating that Petitioner did not receive a “fair and impartial” hearing; (15)

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Petitioner filed a BP-10 regarding the DHO’s alleged refusal to issue a report, but

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allegedly did not receive a receipt or timely response, in violation of his due process

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rights; (16) Petitioner filed a second BP-10 and alleges that the regional office sent a

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backdated response, in violation of his due process rights; (17) because the regional

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office did not respond to Petitioner’s allegedly properly filed BP-10, DHO appeal, his

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due process rights were violated; (18) also because the regional office did not timely

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respond, Petitioner asserts that his BP-11 was denied in violation of his due process

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rights; (19) because D.C. allegedly did not timely respond to Petitioner’s BP-11 DHO
appeal, Petitioner alleges a due process violation; (20) because the Central Office did not
respond to Petitioner’s BP-11 DHO appeal, petitioner alleges a due process violation;

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(21) because both the Western Region and Central Office administrative remedy

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coordinators failed to respond to Petitioner’s appeals, his due process rights were

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violated; and (22) the BOP is unlawfully collecting restitution from Petitioner via the

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Inmate Financial Responsibility Program (“IFRP”). See Petition (Doc. 1). Petitioner

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seeks an order directing the BOP to stop collecting IFRP payments from Petitioner,

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change his IFRP status from “refused” to “exempt,” to expunge Incident Report No.

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2349546, and to remove all associated sanctions. Petition (Doc. 1) at 9.
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II.

FACTUAL BACKGROUND
A.

Incident Report No. 2349546

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On September 10, 2012, at approximately 10:30 a.m., Senior Officer (“SO”) Hart
was contacted by Special Investigative Support (“SIS”) “to check the pipe chase areas
around cells 113 to 119.” Response (Doc. 12), Huband Decl. (Exh. “A”), Incident Report

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No. 2349546 (Attach. “6”) at 6; Petition (Doc. 1) Incident Report No. 2349546 9/12/2012

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(Exh. “2”). SO Hart reported that he “tried to open pipe chase door 158-G, located to the

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left of cell 114[;] [t]he pipe chase lock was blocked preventing the key from fully

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entering the lock.” Response (Doc. 12), Exh. “A,” Attach. “6” at 6; see also Petition

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(Doc. 1), Exh. “2.”

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contraband was found in the pipe[,] [and] . . . called the lock shop to have them come and

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SO Hart “secured cell 114 in order to secure the evidence if

open the lock on the pipe chase door.” Response (Doc. 12), Exh. “A,” Attach. “6” at 6;

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see also Petition (Doc. 1), Exh. “2.” Petitioner and his cellmate were identified as the
occupants of cell 114. Response (Doc. 12), Exh. “A,” Attach. “6” at 6; see also Petition
(Doc. 1), Exh. “2.”

SO Hart reported “approximately 25 gallons of Prison Made

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Intoxicants in that pipe chase.” Response (Doc. 12), Exh. “A,” Attach. “6” at 6; see also

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Petition (Doc. 1), Exh. “2.” SO Hart further reported “[t]he bags of intoxicants were tied

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to the hole protruding from the flush button located in cell 114.” Response (Doc. 12),

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Exh. “A,” Attach. “6” at 6; see also Petition (Doc. 1), Exh. “2.” SO Hart described the

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flush button plate as “bent and worn” and “[t]he screws holding the plate on were easy to

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unscrew and were stripped out.” Response (Doc. 12), Exh. “A,” Attach. “6” at 6; see

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also Petition (Doc. 1), Exh. “2.” SO Hart stated “[i]t was apparent the bags of intoxicants
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were put in there from the flush button in cell 114.” Response (Doc. 12), Exh. “A,”
Attach. “6” at 6; see also Petition (Doc. 1), Exh. “2.” “Prison made intoxicants were

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tested with ALCO Sensor #3 and tested over .400.” Response (Doc. 12), Exh. “A,”
Attach. “6” at 6; see also Petition (Doc. 1), Exh. “2.” SO Hart wrote an incident report
detailing the discovery of intoxicants and charging Petitioner with a violation of Code

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113, Possession of any narcotics, marijuana, drugs, alcohol, intoxicants, or related

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paraphernalia, not prescribed for the individual by medical staff. Response (Doc. 12),

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Exh. “A,” Attach. “6” at 6; see also Petition (Doc. 1), Exh. “2.” On September 22, 2012,

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Lieutenant F. Turner delivered the incident report to Petitioner. Response (Doc. 12),

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Exh. “A,” Attach. “6” at 8. Lieutenant Turner also investigated the incident, and advised

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Petitioner of his rights.

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Response (Doc. 12), Exh. “A,” Attach. “6” at 8.

During

Lieutenant Turner’s investigation, Petitioner chose not to make a statement, and

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displayed a fair attitude. Id. Lieutenant Turner forwarded the Incident Report to the Unit
Discipline Committee (“UDC”) for further disposition. Id.
On October 24, 2012, the UDC conducted its hearing. Response (Doc. 12),

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Huband Decl. (Exh. “A”), Discipline Hearing Report & Incident Rpt. No. 2349546

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(Attach. “6”) at 1, 6. At the hearing, Petitioner was advised of his rights, and received a

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copy of the advisement of rights form. Id., Exh. “A,” Attach. “6” at 1. At the UDC

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hearing Petitioner stated that “Due process was not followed” and that “[t]he delay notice

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was sent after the delay.” Id., Exh. “A,” Incident Rpt. No. 2349546 (Attach. “6”) at 6.

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Based on the severity of the alleged misconduct, the UDC referred the matter to the

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Discipline Hearing Officer (“DHO”) for final disposition, and if Petitioner was found
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guilty, recommended sanctions including loss of Good Conduct Time (“GCT”) and
disciplinary segregation.

Id.

The UDC Case Manager M. County also provided

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Petitioner his Advisement of Incident Report Delay, Notice of Discipline Hearing Before
the DHO, and Disciplinary Hearing Rights. Id., Exh. “A,” DHO Packet for Incident Rpt.
No. 2349546 (Attach. “6”) at 9–13. Petitioner indicated that he wished to have a staff

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representative at his DHO hearing. Response (Doc. 12), Huband Decl. (Exh. “A”),
Attach. “6” at 9, 11.
On November 1, 2012, Petitioner had a DHO hearing before DHO V. Petricka.
See Response (Doc. 12), Exh. “A,” Discipline Hearing Report (Attach. “6”) at 1–3. DHO

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Petricka noted that on October 24, 2012, Case Manager M. County had advised Petitioner

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of his rights before the DHO, and he had received a copy of those rights. Id., Exh. “A,”

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Attach. “6” at 1.

Petitioner had requested Counselor D. McMillan as his staff

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representative. Id., Exh. “A,” Discipline Hearing Report & Notice of Discipline Hearing
Before the DHO (Attach. “6”) at 1, 11. Petitioner did not request any witnesses, stated
that he understood his rights before the DHO, and denied guilt. Id., Exh. “A,” Discipline

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Hearing Report (Attach. “6”) at 2.

Petitioner stated that “[h]e was in the cell for

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approximately 4 months[;] Forrest was in there about a month prior to this incident[;]

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[and] [Petitioner] ha[d] issues with the time frames.” Id.

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DHO Petricka considered the Incident Report; Petitioner’s denial of guilt during

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the DHO proceeding; Petitioner’s staff representative’s statement regarding the lack of

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availability of video evidence; and location of the intoxicants. Response (Doc. 12), Exh.

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“A,” Discipline Hearing Report (Attach. “6”) at 2.
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DHO Petricka noted that she

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“addressed the time frame issues that inmate Weakley was concerned about.” Id. DHO
Petricka further noted “that although inmate Weakley denied the charges against him, the

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institution policy holds all inmates accountable for all items in their areas of
responsibility which includes any areas that are accessible through fixtures in the cell; in
this case the pipe chase that is accessible through the flush button.” Id. Accordingly,

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DHO Petricka determined, “[b]ased on the greater weight of the evidence,” that Petitioner

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“committed the prohibited act of Possession of any narcotics, marijuana, drugs, alcohol,

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intoxicants, or related paraphernalia, not prescribed for the individual by the medical

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staff, Code 113.”

Id.

DHO Petricka imposed sanctions totaling ninety (90) days

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Disciplinary Segregation, forty-one (41) days Disallowance of Good Conduct Time, one

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(1) year of lost commissary, and a $200.00 fine. Id. On December 7, 2012, DHO

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Petricka signed the DHO report and it was delivered to Petitioner on December 9, 2012.

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Response (Doc. 12), Exh. “A,” Discipline Hearing Report (Attach. “6”) at 3.
B.

Administrative Remedy Process for Incident Report No. 2349546

On November 22 2012, Petitioner filed his Regional Administrative Remedy

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Appeal (BP-10), which was received on November 23, 2012 and designated Case No.

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714567-R1. Petition (Doc. 1), Regional Administrative Remedy Appeal 11/22/2012

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(Doc. 1-1, Exh. “4”) at 4; see also Response (Doc. 12), Huband Decl. (Exh. “A”),

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Administrative Remedy Generalized Retrieval (Attach. “7”) at 45 & Regional Remedy

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Appeal 11/22/2012 (Attach. “8”). On January 30, 2013, Regional Director Juan D.

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Castillo issued a response to Administrative Remedy No. 714567-R1. See Response

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(Doc. 12), Huband Decl. (Exh. “A”), Admin. Remedy No. 714567-R1 Castillo Ltr.
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1/30/2013 (Attach. “9”). Regional Director Castillo recognized Petitioner’s claim that he
had not received a DHO Report, but noted that a copy of that report had been issued to

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Petitioner on December 9, 2012. Id., Exh. “A,” Attach. “9” at 1. Regional Director
Castillo further noted that Petitioner had not specified the relief sought. Id., Exh. “A,”
Attach. “9” at 1. Nevertheless, Regional Director Castillo reviewed the disciplinary

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actions of the UDC and DHO and determined that Petitioner’s allegation were without

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merit; however, correction of Section 7 of the DHO report was ordered corrected,

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because it indicated that Petitioner had been found guilty of possessing illegal narcotics

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rather than the actual finding of possession of intoxicants. Id., Exh. “A,” Attach. “9” at
1–2.
On December 20, 2012, Petitioner wrote a letter to the Administrative Remedy
Section, which was received on December 26, 2012. Petition (Doc. 1), Weakley Ltr.

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12/20/2012 (Exh. “5”). Petitioner stated that he had not received the DHO’s report and
was therefore unable to appeal the results of his disciplinary hearing. Id., Exh. “5.”
Petitioner further explained that he “borrowed” a BP-10 form from another inmate and

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sought relief on November 22, 2012. Id., Exh. “5.” On January 30, 2013, Petitioner

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again wrote a letter to the Administrative Remedy section. Petition (Doc. 1), Weakley

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Ltr. 1/30/2013 (Exh. “6”). Petitioner asserted that he had still not received his DHO

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report, nor had he received any response to his November 22, 2012 BP-10. Id., Exh. “6.”

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Petitioner further expressed frustration regarding his inability to appeal the DHO’s

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decision. Id., Exh. “6.”

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On February 8, 2013, Petitioner filed another Regional Administrative Remedy
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Appeal (BP-10), which was received on February 12, 2013 and designated Case No.
724481-R1. Petition (Doc. 1), Regional Administrative Remedy Appeal 2/8/2013 (Doc.

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1-1, Exh. “8”) at 7–13;1 see also Response (Doc. 12), Huband Decl. (Exh. “A”),

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Administrative Remedy Generalized Retrieval (Attach. “7”) at 46 & Regional Remedy

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Appeal 2/8/2013 (Attach. “10”) at 138–44.2 Petitioner asserted that he had not received a

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response to his November 1, 2012 BP-10, and was formally appealing Incident Report

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No. 2349546. Petition (Doc. 1), Exh. “8” at 7; see also Response (Doc. 12), Exh. “A,”

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Attach. “10” at 1. Petitioner alleged eighteen (18) grounds for relief. Petition (Doc. 1),

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Exh. “8” at 7; see also Response (Doc. 12), Exh. “A,” Attach. “10” at 1.

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On March 5, 2013, Petitioner filed a third Regional Administrative Remedy

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Appeal (BP-10), which was received on March 13, 2013 and designated Case No.

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714567-R2. Petition (Doc. 1), Regional Administrative Remedy Appeal 3/5/2013 (Doc.

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1-1, Exh. “9”) at 17–26;3 see also Response (Doc. 12), Huband Decl. (Exh. “A”),

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Administrative Remedy Generalized Retrieval (Attach. “7”) at 47 & Regional Remedy

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Appeal 3/5/2013 (Attach. “11”) at 2–11.4 Petitioner stated that on March 2, 2013 he had

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“received a fragmented response to BP-10 714567-R1 which also seem[ed] to address
some issues presented in the partial appeal of 2-18-2013[.]” Petition (Doc. 1), Exh. “9”

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1

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The page numbers correspond to the CM/ECF page numbering. Petitioner labeled the
pages A–G.
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The page numbers correspond to the CM/ECF page numbers of Attachments 1–10
(Doc. 12-3).
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The page numbers correspond to the CM/ECF page numbering. Petitioner labeled the
pages A–J.
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The page numbers correspond to the CM/ECF page numbers of Attachments 11–20
(Doc. 12-4).

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at 17; see also Response (Doc. 12), Exh. “A,” Attach. “11” at 2. Petitioner further
asserted that he wished to “void all of the existing administrative remedies concerning

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incident report #2349546, and the DHO’s refusal to issue a report into the enclosed
amended appeal of 2-8-13.” Petition (Doc. 1), Exh. “9” at 17; see also Response (Doc.
12), Exh. “A,” Attach. “11” at 2. Petitioner raised fifteen (15) counts in this appeal.

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Petition (Doc. 1), Exh. “9” at 17–26; see also Response (Doc. 12), Exh. “A,” Attach.

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Attach. “11” at 2–11. On March 29, 2013 the Western Regional Office Administrative

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Remedy Administrative Remedy Coordinator issued a Rejection Notice as to Remedy ID

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714567-R2. Petition (Doc. 1), Rejection Notice—Administrative Remedy 3/29/2013

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(Doc. 1-1, Exh. “14”) at 32; see also Response (Doc. 12), Exh. “A,” Rejection Notice—

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Administrative Remedy 3/29/2013 (Attach. “12”). The rejection indicated that Petitioner

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should have submitted his request to the Central Office level. Petition (Doc. 1), Exh.

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“14” at 32; Response (Doc. 12), Exh. “A,” Attach. “12.”
On April 24, 2013, Regional Director Juan D. Castillo responded to Petitioner’s
request for administrative relief contained in Administrative Remedy No. 724481-R1.

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Response (Doc. 12), Huband Decl. (Exh. “A”), Admin. Remedy No. 724481-R1, Castillo

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Ltr. 4/24/2013 (Attach. “13”).

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originally appealed the matter, and a response was given on January 30, 2013. Id., Exh.

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Regional Director Castillo stated that Petitioner had

“A,” Attach. “13.” Accordingly, Regional Director Castillo found Petitioner’s appeal

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repetitive, and indicated that his January 2013 response remained in effect. Id., Exh. “A,”

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Attach. “13.”

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On April 25, 2013, Petitioner filed his Central Office Administrative Remedy
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Appeal (BP-11), which was received on May 6, 2013 and given Case No. 714567-A1.
See Response (Doc. 12), Huband Decl. (Exh. “A”), Administrative Remedy Generalized

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Retrieval (Attach. “7”) at 48 & Central Office Admin. Remedy Appeal (Attach. “14”);
see also Petition (Doc. 1), Central Office Admin. Remedy Appeal (Exh. “12”). Petitioner
indicated that he had not received a response to his regional appeal, but had been

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instructed to file at the Central Office level. Response (Doc. 12), Exh. “A,” Attach. “14”

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at 18;5 see also Petition (Doc. 1), Exh. “12” at 30. Petitioner requested expungement of

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this misconduct report. Response (Doc. 12), Exh. “A,” Attach. 14 at 27. On May 9,

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2013, the Central Office Administrative Remedy Coordinator rejected Petitioner’s

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appeal. Id., Exh. “A,” Rejection Notice—Admin. Remedy 5/9/2013 (Attach. “15”). The

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Central Office’s reasons for the rejection included that the appeal was untimely;

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Petitioner failed to include either a copy of his BP-10 or a copy of the BP-10 response;

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and the appeal may only include one (1) continuation page. Id., Exh. “A,” Attach. “15.”
Petitioner was further directed to provide a staff memorandum stating the reasons that
Petitioner’s untimely filing was not his fault. Id., Exh. “A,” Attach. “15.”

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On September 9, 2013, Petitioner filed another Regional Administrative Remedy

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Appeal (BP-10), which was received on September 19, 2013 and given Case No. 714567-

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R3.

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See Response (Doc. 12), Huband Decl. (Exh. “A”), Administrative Remedy

Generalized Retrieval (Attach. “7”) at 50 & Regional Admin. Remedy Appeal (Attach.
“16”); see also Petition (Doc. 1), Regional Admin. Remedy Appeal (Exh. “15”) at 33–

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This reference is to the CM/ECF page number of Attachments 11–20 (Doc. 12-4).

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35.6 Petitioner reiterated much of his original regional appeal, and acknowledged the
Central Office’s reasons for rejecting his BP-11. See Response (Doc. 12), Exh. “A,”

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Attach. “16”; see also Petition (Doc. 1), Exh. “12.” Additionally, Petitioner included a
“Memorandum for Record” from Case Manager M. County indicating that Petitioner had
been in Pennsylvania pursuant to a writ from May 16, 2013 through August 23, 2013.

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Response (Doc. 12), Exh. “A,” Attach. “16” at 34; see also Petition (Doc. 1), Exh. “12.”

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On September 24, 2013, the Western Regional Office Administrative Remedy

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Coordinator rejected Petitioner’s regional appeal. Id., Exh. “A,” Rejection Notice—

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Admin. Remedy 9/24/2013 (Attach. “17”). The Western Regional Office’s reason for the

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rejection was that petitioner appealed to the wrong level, and should have filed with the

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Central Office level. Id., Exh. “A,” Attach. “17.”

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On November 16, 2013, Petitioner filed his second Central Office Administrative

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Remedy Appeal (BP-11), which was received on December 16, 2013 and given Case No.
714567-A2. See Response (Doc. 12), Huband Decl. (Exh. “A”), Administrative Remedy
Generalized Retrieval (Attach. “7”) at 53 & Central Office Admin. Remedy Appeal

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(Attach. “18”). Petitioner indicated that he had received “the attached returned and

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unanswered BP-10 DHO appeal from the Western Region with instructions to file it [at

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the Central Office level].” Response (Doc. 12), Exh. “A,” Attach. “18” at 38.7 Petitioner

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also complained of the BOP’s failure to consider his appeal. Response (Doc. 12), Exh.
“A,” Attach. “18” at 38. On December 30, 2013, the Central Office Administrative
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The page numbers correspond to the CM/ECF page numbering. Petitioner labeled the
pages A–C.
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This reference is to the CM/ECF page number of Attachments 11–20 (Doc. 12-4).

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Remedy Coordinator rejected Petitioner’s appeal. Id., Exh. “A,” Rejection Notice—

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Admin. Remedy 12/30/2013 (Attach. “19”).8

The Central Office’s reasons for the

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rejection included that the appeal was untimely; Petitioner failed to include either a copy
of his BP-10 or a copy of the BP-10 response from the Regional Director; and Petitioner
did not submit a complete set of the Request (BP-9) or Appeal (BP-10 or BP-11) form.

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Id., Exh. “A,” Attach. “19.”

Petitioner was again directed to provide a staff

memorandum stating the reasons that Petitioner’s untimely filing was not his fault. Id.,
Exh. “A,” Attach. “19.”

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On February 11, 2014, Petitioner’s third Central Office Administrative Remedy

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Appeal (BP-11) was received and given Case No. 714567-A3. See Response (Doc. 12),

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Huband Decl. (Exh. “A”), Administrative Remedy Generalized Retrieval (Attach. “7”) at

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56. On March 18, 2014, the Central Office Administrative Remedy Coordinator rejected

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Petitioner’s appeal.

Id., Exh. “A,” Rejection Notice—Admin. Remedy 3/18/2014

(Attach. “20”). The Central Office’s reasons for the rejection included that Petitioner
failed to include a copy of his BP-10 or a copy of the BP-10 response from the Regional

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21

Director and directed Petitioner to resubmit his appeal in proper form within fifteen (15)

22

days of the notice. Id., Exh. “A,” Attach. “20.” Petitioner did not perfect his appeal

23

regarding Incident Report No. 2349546. See id., Exh. “A,” Attach. “7” at 56–59.

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25

...

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27
28

8

David T. Huband’s declaration indicates that this occurred on December 16, 2013, but a
review of the notice indicates that it appears to be dated December 30, 2013. See Response
(Doc. 12), Huband Decl. (Exh. “A”) at ¶ 16 & Rejection Notice—Admin. Remedy 12/30/2013
(Attach. “19”).

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2

C.

Other Administrative Remedy Requests

On April 23, 2012, Petitioner filed a Request for Administrative Remedy alleging

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4
5
6

that Counselor Johannus was attempting “to subvert the Administrative Remedy Process
[by lying] on a BP-8 where he claimed that I requested from him a job.” Response (Doc.
12), Huband Decl. (Exh. “A”), Administrative Remedy Generalized Retrieval (Attach.

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8
9
10
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12

“7”) at 43 & Request for Admin. Remedy 4/23/2012 (Attach. “21”). Petitioner further
asserted that he had never requested a job, and had been trying to obtain “unassigned”
status to “pursue working on [his] legal woes.”

Id., Exh. “A,” Attach. “21.”

Accordingly, Petitioner sought investigation into Counselor Johannus’s behavior. Id.,

13

Exh. “A,” Attach. “21.” This request was assigned Case Number 691925-F1. See id.,

14

Exh. “A,” Attach “7” at 43 & Attach. “21.”

15

On October 5, 2012, Warden Winn

responded to Petitioner’s request noting that his “allegations regarding staff misconduct

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have been thoroughly reviewed.” Id., Exh. “A,” Response Re: Admin. Remedy No.
691925-F1 (Attach. “24”) at 9.9 Warden Winn denied Petitioner’s request, because
“inmates do not have any entitlements to be advised of the results of the investigation or

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21

whether any administrative action is taken against staff.” Id., Exh. “A,” Attach. “24” at

22

9. On October 26, 2012, Petitioner acknowledged receipt of the Administrative Remedy

23

Appeal. Id., Exh. “A,” Attach. “24” at 10.

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25

On July 19, 2012, Petitioner submitted a Regional Administrative Remedy Appeal

26

(BP-10), which was received on July 30, 2012 and given Case No. 700013-R1. See

27

Response (Doc. 12), Huband Decl. (Exh. “A”), Administrative Remedy Generalized

28
9

This reference is to the CM/ECF page number of Attachments 21–31 (Doc. 12-5).

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2

Retrieval (Attach. “7”) at 43 & Regional Admin. Remedy Appeal (Attach. “22”).
Petitioner alleged that his local administrative remedy coordinator barred him from

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6

participating in the administrative remedy process. See id., Exh. “A,” Attach. “22” at 4.10
On August 8, 2012, Petitioner’s Administrative Remedy No. 700013-R1 was rejected.
Id., Exh. “A,” Rejection Notice—Admin. Remedy 8/8/2012 (Attach. “23”). The notice

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8
9

indicated that Petitioner’s issue was rejected because it was not sensitive, and further
notified Plaintiff of his right to appeal the decision. Id., Exh. “A,” Attach. “23.”

10
11
12

On February 7, 2013, Petitioner filed a Central Office Administrative Remedy
Appeal (BP-11), which was received on February 19, 2013 and given Case No. 700013-

13

A1.

14

Generalized Retrieval (Attach. “7”) at 46 & Central Office Admin. Remedy Appeal

15

See Response (Doc. 12), Huband Decl. (Exh. “A”), Administrative Remedy

(Attach. “27”).

Petitioner alleged an ongoing issue with a denial of access to the

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19

administrative remedy process.

Response (Doc. 12), Exh. “A,” Attach. “27.”

On

February 25, 2013, the Central Office issued its rejection of Petitioner’s appeal. Id., Exh.
“A,” Rejection Notice—Admin. Remedy 2/25/2013 (Attach. “28”).

The Central

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21

Office’s reasons for the rejection included that Petitioner should have filed at the

22

institution and that Petitioner must first file a BP-9 request through the institution for the

23

Warden’s review. Id., Exh. “A,” Attach. “28.”

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25

On May 7, 2013, Petitioner filed a Central Office Administrative Remedy Appeal

26

(BP-11), which was received by the Western Regional Office on May 16, 2013 and given

27

Case No. 734552-R2. See Response (Doc. 12), Huband Decl. (Exh. “A”), Administrative

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10

This reference is to the CM/ECF page number of Attachments 21–31 (Doc. 12-5).

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1
2

Remedy Generalized Retrieval (Attach. “7”) at 49 & Central Office Admin. Remedy
Appeal (Attach. “29”).

Petitioner appealed his request for his Inmate Financial

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6

Responsibility Program (“IFRP”) status to be changed from “refusal” to “exempt.”
Response (Doc. 12), Exh. “A,” Attach. “29.” On May 16, 2013, the Central Office issued
its rejection of Petitioner’s appeal. Id., Exh. “A,” Rejection Notice—Admin. Remedy

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8

5/16/2013 (Attach. “30”).

The Central Office’s reasons for the rejection included that

9

Petitioner must first file a BP-9 request through the institution for the Warden’s review

10

and Petitioner did not submit his request or appeal on the proper form. Id., Exh. “A,”

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12

Attach. “30.”

13

On December 27, 2013, Petitioner submitted a Regional Administrative Remedy

14

Appeal (BP-10), which was received on January 14, 2014 and given Case No. 691925-

15

R1.

See Response (Doc. 12), Huband Decl. (Exh. “A”), Administrative Remedy

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19

Generalized Retrieval (Attach. “7”) at 55 & Regional Admin. Remedy Appeal (Attach.
“25”). Petitioner complained of “a serious problem with the administrative remedy
process[.]”

See id., Exh. “A,” Attach. “25.”

On January 28, 2014, Petitioner’s

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21

Administrative Remedy No. 691925-R1 was rejected. Id., Exh. “A,” Rejection Notice—

22

Admin. Remedy 1/28/2014 (Attach. “26”). The notice indicated that Petitioner’s appeal

23

was rejected because it was untimely. Id., Exh. “A,” Attach. “26.”

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III.

ANALYSIS
A. Jurisdiction
“Federal courts are always ‘under an independent obligation to examine their own
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2

jurisdiction,’ . . . and a federal court may not entertain an action over which it has no
jurisdiction.”

Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (quoting

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4
5
6

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603
(1990), overruled in part on other grounds by City of Littleton, Colo. v. Z.J. Gifts D-4,
L.L.C., 541 U.S. 774 (2004)). “Generally, motions to contest the legality of a sentence

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8

must be filed under § 2255 in the sentencing court, while petitions that challenge the

9

manner, location, or conditions of a sentence’s execution must be brought pursuant to §

10

2241 in the custodial court.” Id. at 864. Therefore, a proper characterization of the

11
12

petition is necessary to a determination of jurisdiction. Id.

13

Here, Petitioner does not claim that the sentencing court imposed an illegal

14

sentence, rather he seeks relief with respect to disciplinary proceedings while

15

incarcerated at a federal facility. As such, Petitioner is challenging the manner, location

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19

or condition of the execution of his sentence. See e.g., Rogers v. United States, 180 F.3d
349 (1st Cir. 1999) (section 2241 petition is appropriate vehicle to challenge the
correctness of a jail-time credit determination, once administrative remedies have been

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21

exhausted); Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc),

22

(“[c]hallenges to the validity of any confinement or to the particulars affecting its

23

duration are the province of habeas corpus[.]” (quoting Muhammad v. Close, 540 U.S.

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25

749, 750, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004)); Tucker v. Carlson, 925 F.2d 330, 332

26

(9th Cir. 1991) (a prisoner’s challenge to the “manner in which his sentence was executed

27

. . . [is] maintainable only in a petition for habeas corpus filed pursuant to 28 U.S.C. §

28

2241”); Weinstein v. U.S. Parole Comm’n, 902 F.2d 1451, 1452 (9th Cir. 1990) (“The
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2

district court had jurisdiction pursuant to 28 U.S.C. § 2241 to review a claim by a federal
prisoner challenging a decision of the United States Parole Commission”).

Such a

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6

challenge must be brought pursuant to § 2241 in the custodial court. At the time of filing
the Petition, Petitioner was incarcerated at USP–Tucson in Arizona. Accordingly, this
Court has jurisdiction over this matter. Francis v. Rison, 894 F.2d 353 (9th Cir. 1990).

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8

B. Exhaustion
1. In General

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10
11

The Ninth Circuit Court of Appeals has stated:

14

[28 U.S.C. § 2241] does not specifically require petitioners to exhaust
direct appeals before filing petitions for habeas corpus. [Footnote omitted.]
However, we require, as a prudential matter, that habeas petitioners exhaust
available judicial and administrative remedies before seeking relief under §
2241.

15

Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds

12
13

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17

by Fernandez-Vargas v. Gonzales, 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006).

18

“The requirement that federal prisoners exhaust administrative remedies before filing a

19

habeas corpus petition was judicially created; it is not a statutory requirement.” Brown v.

20

Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds by Reno v. Koray,

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22

515 U.S. 50, 54–55, 115 S.Ct. 2021, 2023–24, 132 L.Ed.2d 46 (1995). “Nevertheless,

23

‘[p]rudential limits like jurisdictional limits and limits on venue, are ordinarily not

24

optional.’” Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007) (alterations in original)

25
26

(quoting Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other

27

grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d

28

323 (2006)).
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2

“Courts may require prudential exhaustion if ‘(1) agency expertise makes agency
consideration necessary to generate a proper record and reach a proper decision; (2)

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4
5
6

relaxation of the requirement would encourage the deliberate bypass of the administrative
scheme; and (3) administrative review is likely to allow the agency to correct its own
mistakes and to preclude the need for judicial review.’” Puga, 488 F.3d at 815 (quoting

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8

Noriega-Lopez v. Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003)). “When a petitioner does

9

not exhaust administrative remedies, a district court ordinarily should either dismiss the

10

petition without prejudice or stay the proceedings until the petitioner has exhausted

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12

remedies, unless exhaustion is excused.” Leonardo v. Crawford, 646 F.3d 1157, 1160

13

(9th Cir. 2011) (citations omitted).

14

administrative remedy would be futile. Fraley v. United States Bureau of Prisons, 1 F.3d

15

Exhaustion may be excused if pursuing an

924, 925 (9th Cir. 1993).

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17
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19

If a prisoner is unable to obtain an administrative remedy because of his failure to
appeal in a timely manner, then the petitioner has procedurally defaulted his habeas
corpus claim. See Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994) (citing Francis v.

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21

Rison, 894 F.2d 353, 354 (9th Cir. 1990); Martinez v. Roberts, 804 F.2d 570, 571 (9th

22

Cir. 1986)). If a claim is procedurally defaulted, the court may require the petitioner to

23

demonstrate cause for the procedural default and actual prejudice from the alleged

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25

constitutional violation. See Francis, 894 F.2d at 355 (suggesting that the cause and

26

prejudice test is the appropriate test); Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct.

27

2639, 2647–48, 91 L.Ed.2d 397 (1986) (cause and prejudice test applied to procedural

28

defaults on appeal); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 906–08 (9th
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1
2

Cir. 1986) (cause and prejudice test applied to pro se litigants).
2. BOP Administrative Procedures

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6

The BOP has established an administrative remedy process permitting an inmate
to seek review of an issue relating to “any aspect of his/her own confinement.” 28 C.F.R.
§ 542.10(a). Under that process, an inmate seeking to appeal a DHO decision shall

7
8

submit the appeal “initially to the Regional Director for the region where the inmate is

9

currently located.” 28 C.F.R. § 542.14(d)(2). “An inmate who is not satisfied with the

10

Regional Director’s response may submit an Appeal on the appropriate form (BP-11) to

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12

the General Counsel within 30 calendar days of the date the Regional Director signed the

13

response.” 28 C.F.R. § 542.15(a). The deadlines contained within this process may be

14

extended upon request by the inmate and a showing of a valid reason for delay. 28

15

C.F.R. § 542.15(a); 28 C.F.R. § 542.14(b). An appeal is considered filed on the date it is

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19

logged in the Administrative Remedy Index as received. 28 C.F.R. § 542.18. Once an
appeal is filed, a Regional Director shall respond within 30 days; General Counsel shall
respond within 40 calendar days. Id. “If the inmate does not receive a response within

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25

the time allotted for reply, including extension, the inmate may consider the absence of a
response to be a denial at that level.” Id.
3. Exhaustion in the Instant Case
Here, Respondent avers that Petitioner has failed to exhaust his administrative

26

remedies. Response (Doc. 12) at 8–10. Respondent grouped Petitioner’s claims into

27

three (3) categories: (1) due process claims regarding the incident report (Grounds 1–14);

28

(2) due process claims regarding the administrative remedy process (Grounds 15–21);
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2

and (3) a claim regarding the IFRP (Ground 22). See Response (Doc. 12). Regarding the
first category of claims, Respondent asserts that despite BOP’s instructions regarding

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4
5
6

how to correct the deficiencies in Petitioner’s General Counsel appeal, Petitioner never
properly filed an appeal. Id. at 9. Regarding Petitioner’s claims about the administrative
process, Respondent again asserts that Petitioner “never properly filed an appeal with the

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8
9
10
11
12

General Counsel at the Central Office.” Id. Finally, Respondent failed to comply with
BOP’s instructions to present his IFRP claim to the institution. Id. at 10.
A review of the record confirms that Petitioner’s repetitive and uneven approach
to the administrative remedy process resulted in his failure to exhaust both categories of

13

due process claims. The Court notes, however, that the Government has only asserted

14

that Petitioner failed to exhaust his available administrative remedies, but has not asserted

15

that such claims are procedurally defaulted.

As such, the Government has waived

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Petitioner’s procedural default. Francis v. Rison, 894 F.2d 353, 355 (9th Cir. 1990).
Additionally, the Ninth Circuit Court of Appeals has recognized that:
the requirement of exhaustion of remedies [is to] aid judicial review by
allowing the appropriate development of a factual record in an expert
forum; conserve the court’s time because of the possibility that the relief
applied for may be granted at the administrative level; and allow the
administrative agency an opportunity to correct errors occurring in the
course of administrative proceedings.

24

Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). In this case, the factual record is

25

adequately developed, and nothing in the record suggests that further administrative

26

review would result in any changes. Furthermore, with regard to Petitioner’s IFRP claim,

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28

“[b]ecause of the existence of official BOP policy—the IFRP—exhaustion would be

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futile here[.]” Ward v. Chavez, 678 F.3d 1042, 1046 (9th Cir. 2012). Accordingly, the
Court finds that although the exhaustion is faulty, it shall be excused and the Court will

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6

reach the merits.
C. Due Process Regarding Incident Report No. 2349546
Petitioner challenges a disciplinary conviction that resulted in his loss of good

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8

time credits. Petitioner alleges fourteen (14) grounds for relief regarding the disciplinary

9

hearing process as follows: (1) the incident report was rewritten, and as such was not

10

reviewed with him within twenty-four (24) hours after staff became aware of the incident,

11
12

in violation of Petitioner’s due process rights. Additionally, there is no policy or statute

13

which authorizes a “rewrite”; (2) the rewritten incident report was reviewed with

14

Petitioner allegedly nine (9) days late, in violation of his due process rights; (3) BOP

15

allegedly violated its own policy by failing to notify Petitioner “immediately” regarding a

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18
19

delay in his UDC hearing, in violation of his due process rights; (4) Petitioner’s UDC
hearing was allegedly held thirty-five (35) days late, in violation of his due process
rights; (5) Petitioner’s staff representative informed him, at the time of the DHO hearing,

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21

that the video Petitioner requested was not available, as did DHO Petricka. Petitioner

22

alleges that this denial of his right to present evidence in his defense, violated his due

23

process rights; (6) after the denial of Petitioner’s request for the video evidence, he

24
25

complained to DHO Petricka that his staff representative was ineffective, and requested a

26

new representative. This request was denied, and Petitioner alleges that it violated his

27

due process rights; (7) Petitioner was allegedly not allowed to present the evidence he

28

sought to introduce, in violation of his due process rights; (8) surveillance video is
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recorded over every thirty (30) days, and due to the delays in the disciplinary process
Petitioner did not go before the DHO prior to the video being destroyed, in violation of

3
4
5
6

his to process right; (9) Petitioner requested at the DHO hearing to review, or have his
staff representative review, the “investigating officer’s report.” DHO Petricka denied this
request, allegedly in violation of Petitioner’s due process rights; (10) the Alco-Sensor

7
8

was used to analyze the suspected liquid, which Petitioner asserts is only a breathalyzer,

9

and its use in this case violated his due process rights; (11) DHO Petricka allegedly spoke

10

with the special investigations section, and conducted her own investigation. Allegedly

11
12

Petitioner and his staff representative were not allowed to review this evidence, thereby

13

violating his due process rights; (12) because statute and policy for bid that DHO from

14

acting as an “investigator,” which DHO Petricka allegedly did, Petitioner alleges his due

15

process rights were violated; (13) DHO Petricka did not properly consider Petitioner’s

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17
18
19

arguments regarding accessibility of the closet and his proclaimed innocence, depriving
him of a fair and impartial hearing; and (14) Petitioner’s cellmate was given an identical
incident report, but found “not guilty,” demonstrating that Petitioner did not receive a

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21
22
23
24
25

“fair and impartial” hearing. Petition (Doc. 12) at 4–12.
1. Legal Standard
“Due process in a prison disciplinary hearing is satisfied if the inmate receives
written notice of the charges, and a statement of the evidence relied on by the prison

26

officials and the reasons for disciplinary action.” Zimmerlee v. Keeny, 831 F.2d 183, 186

27

(9th Cir. 1987) (citing Wolff v. McDonnell, 418 U.S. 539, 563–66, 94 S.Ct. 2963, 2978–

28

79, 41 L.Ed.2d 935 (1974)). Additionally, “[t]he inmate has a limited right to call
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1
2

witnesses and to present documentary evidence when permitting him to do so would not
unduly threaten institutional safety and goals.”

Id. (citations omitted).

“Where an

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4
5
6

illiterate inmate is involved . . . [or] the complexity of the issue makes it unlikely that the
inmate will be able to collect and present the evidence necessary for an adequate
comprehension of the case, he should be free to seek the aid of a fellow inmate, or if that

7
8

is forbidden to have adequate substitute aid in the form of help from the staff or from a

9

sufficiently competent inmate designated by the staff.” Wolff, 418 U.S. at 570, 94 S.Ct.

10

at 2981. Finally, inmates have a right to an impartial decision maker. Id. at 571, 94 S.Ct.

11
12

at 2982.

“Prison disciplinary proceedings[, however,] are not part of a criminal

13

prosecution, and the full panoply of rights due a defendant in such proceedings do[] not

14

apply.” Wolff, 418 U.S. at 556, 94 S.Ct. at 2975.

15

Once the minimal procedural requirements of Wolff are met, the district court must

16
17
18
19

ask “whether there is any evidence in the record that could support the conclusion
reached by the disciplinary board.” Superintendent, Mass. Corrections Inst. v. Hill, 472
U.S. 445, 455–56, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985). “[T]he requirements of

20
21

due process are satisfied if some evidence supports the decision by the prison disciplinary

22

board to revoke good time credits.” Id. “Ascertaining whether this standard is satisfied

23

does not require examination of the entire record, independent assessment of the

24
25

credibility of witnesses, or weighing of the evidence.” Id. Indeed, “[t]he standard is

26

‘minimally stringent’ only requiring ‘any evidence in the record that could support the

27

conclusion reached by the disciplinary board.’” Cato v. Rushen, 824 F.2d 703, 705 (9th

28

Cir. 1987) (citing Hill, 472 U.S. at 454–56, 105 S.Ct. at 2774) (emphasis added in Cato).
- 25 -

1

2. Ground One: Rewritten Incident Report

2

Petitioner states that an incident “report was written on 9-10-12 the date of the

3
4
5
6

incident and properly reviewed with petitioner[,] however, this report was discarded and
a new report was issued.” Petition (Doc. 1) at 4. Petitioner further asserts that “there is
no provision in policy or statute that authorizes a ‘rewrite’ of a misconduct report under

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8
9

these circumstances, violating petitioners [sic] right of due process as this was more than
the 24 hour limit of [sic] after staff became aware of the incident.” Id.

10
11
12

Due process requires that Petitioner be notified of the charges, in writing, at least
twenty-four (24) hours before his hearing. Wolff v. McDonnell, 418 U.S. 539, 564, 94

13

S.Ct. 2963, 2979, 41 L.Ed.2d 935 (1974). Due process does not require notification

14

within twenty-four (24) hours of the incident. BOP policy states that inmates will

15

“ordinarily receive the incident report within 24 hours of staff becoming aware of [the

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17
18
19

inmate’s] involvement in the incident.” 28 C.F.R. 541.5(a); see also BOP Program
Statement 5270.09, Ch. 2 at § 541.5. “Program statements are internal agency guidelines
that may be altered by the BOP at will[.]” Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir.

20
21

2011) (quotations and citations omitted).

Moreover, “[a] habeas claim cannot be

22

sustained based solely upon the BOP’s purported violation of its own program statement

23

because noncompliance with a BOP program statement is not a violation of federal law.”

24
25

Id.

26

Here, Petitioner’s incident report was rewritten to add the results of the Alco-

27

Sensor tests. It is undisputed that the report was reviewed with Petitioner more than

28

twenty-four (24) hours prior to his hearing. Furthermore, DHO Petricka noted that
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“Inmate Weakley provided no evidence showing that the re-write impeded his ability to
present his defense.” Response (Doc. 12), Huband Decl. (Exh. “A”), Discipline Hr’g

3
4
5
6

Rpt. (Attach. “6”) at 2. Accordingly, Petitioner received all the process he was due.
3. Ground Two: Timeliness of Review
Petitioner asserts that “the incident report petitioner was heard on, the rewrite of 9-

7
8
9
10

12-12, was not reviewed with him until 9-22-12, nine days late[] in violation of his rights
to due process.” Petition (Doc. 1) at 5. As discussed in Section III.C.2., supra, this does
not constitute a due process violation.

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12

4. Ground Three: Failure to Notify of UDC Delay

13

Petitioner asserts that “in accordance with policy 5270.7 inmates are to be

14

‘notified immediately in writing’ of delays.” Petition (Doc. 1) at 5. Petitioner received

15

written notice of the Warden’s delay excuse within two (2) weeks of the excuse being

16
17
18
19

signed and six (6) weeks of the incident. Id. at 5–6. As discussed in Section III.C.2.,
supra, “[a] habeas claim cannot be sustained based solely upon the BOP’s purported
violation of its own program statement because noncompliance with a BOP program

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21
22
23
24
25

statement is not a violation of federal law.” Reeb v. Thomas, 636 F.3d 1224, 1227 (9th
Cir. 2011). As such, Petitioner has not alleged a due process violation.
5. Ground Four: Timeliness of UDC Hearing
Petitioner asserts that “on 10-24-12 a UDC hearing was held, 35 days late, and 33

26

days late beyond the wardens [sic] ‘forgiveness’ of 10-12-13[.]” Petition (Doc. 1) at 6.

27

Petitioner further asserts that he “is entitled by statute and policy to have his UDC

28

hearing within five work days, and because his right to a timely hearing was severely
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1
2

violated [and] his right of due process was injured.” Id. As discussed in Section III.C.2.,
supra, “[a] habeas claim cannot be sustained based solely upon the BOP’s purported

3
4
5
6

violation of its own program statement because noncompliance with a BOP program
statement is not a violation of federal law.” Reeb v. Thomas, 636 F.3d 1224, 1227 (9th
Cir. 2011). Moreover, Petitioner cannot point to any statutory authority mandating UDC

7
8
9
10
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12

hearings must occur within five (5) working days. As such, Petitioner has not alleged a
due process violation.
6. Ground Five: Unavailability of Video
Petitioner asserts that his staff representative Counselor McMillan refused his

13

request to obtain video evidence from “the D-1 unit cameras for a few days prior to the

14

discovery of the liquid in the closet, [which] would have shown several inmates, none of

15

which were petitioner, removing the screws from the closet locking device and placing

16
17
18
19

the liquid inside.” Petition (Doc. 1) at 7. Petitioner alleges that because of Counselor
McMillan’s refusal, he was denied due process in the disciplinary hearing. Id.
DHO Petricka noted that “the staff rep contacted the SIS department and verified

20
21

that there was no video available.” Response (Doc. 12), Huband Decl. (Exh. “A”),

22

Discipline Hr’g Rpt. (Attach. “6”) at 2. DHO Petricka further noted that “the institution

23

policy holds all inmates accountable for all items in their areas of responsibility which

24
25

includes any areas that are accessible through fixtures in the cell; in this case the pipe

26

chase that is accessible through the flush button.” Id., Exh. “A,” Attach. “6” at 2. Even

27

assuming, arguendo, that the video shows what Petitioner claims, it does not absolve him

28

of guilt. DHO Petricka found “the staff member’s statements and observations [were]
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1
2

credible and believable.” Id., Exh. “A,” Attach. “6” at 2. The Incident Report stated that
“[t]he bags of intoxicants were tied to the hole protruding from the flush button located in

3
4
5
6

cell 114[;] [i]t was apparent the bags of intoxicants were put in there from the flush
button in cell 114[;] [t]he flush button plate was bent and worn[;] [and] [t]he screws
holding the plate on were easy to unscrew and were stripped out.” Id., Exh. “A,” Attach.

7
8

“6” at 2, 6.

As such, even if other inmates accessed the closet and added liquid

9

contributing to the violation, this does not make DHO Petricka’s findings regarding

10

Petitioner’s guilt faulty. The requirements of due process are satisfied if “there was some

11
12

evidence from which the conclusion of the administrative tribunal could be deduced[.]”

13

Hill, 472 U.S. at 455, 105 S.Ct. at 2774 (quoting United States ex rel. Vajtauer v.

14

Commissioner of Immigration, 273 U.S. 103, 106, 47 S.Ct. 302, 303, 71 L.Ed. 560

15

(1927)). Petitioner’s inability to present non-exculpatory evidence is not a due process

16
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18
19

violation.
7. Ground Six: Denial of New Staff Representative
Petitioner asserts that “after the denial of petitioners [sic] request for the video

20
21

evidence petitioner told DHO patricka [sic] that his staff rep was ineffective in assisting

22

in his defense by failing to collect the requested, and required evidence as is his job . . .

23

and requested the appointment of another-effective-staff rep.” Petition (Doc. 1) at 8.

24
25
26
27
28

Petitioner further asserts that DHO Petricka denied this request depriving him of “a fair
and impartial hearing in violation of his rights of due process.” Id.
Due Process requires that “where an illiterate inmate is involved . . . or whe[re] the
complexity of the issue makes it unlikely that the inmate will be able to collect and
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1
2

present the evidence necessary for an adequate comprehension of the case, he should be
free to seek . . . help from the staff or from a sufficiently competent inmate designated by

3
4
5
6

the staff.” Wolff v. McDonnell, 418 U.S. 539, 570, 94 S.Ct. 2963, 2982, 41 L.Ed.2d 935
(1974). There is no evidence to suggest that Petitioner “is within the class of inmates
entitled to advice or help from others in the course of a prison disciplinary hearing.” Id.

7
8

Moreover, even if he were within the class of inmates, there is no right to request

9

multiple representatives. As such, Petitioner’s due process claim must fail.

10

8. Ground Seven: Denial of Video Evidence

11
12

Petitioner again asserts that the unavailability of his requested video evidence

13

violated his due process rights. Petition (Doc. 1) at 8. Petitioner further alleges that he

14

was not informed at the time of the DHO hearing that “saved surveillance video is

15

recycled by the recording system every thirty days.” Id.

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Due Process requires that “the inmate facing disciplinary proceedings should be
allowed to call witnesses and present documentary evidence in his defense when
permitting him to do so will not be unduly hazardous to institutional safety or

20
21

correctional goals.” Wolff v. McDonnell, 418 U.S. 539, 566, 94 S.Ct. 2963, 2979, 41

22

L.Ed.2d 935 (1974). As discussed in Section III.C.6., supra, Petitioner’s inability to offer

23

non-exculpatory evidence does not violate his due process rights. Even if the lack of

24
25
26
27
28

video were error, in light of the other evidence, such error would be harmless.
9. Ground Eight: Timeliness
Petitioner asserts that “it was because of all of the violations in the statute and
policy mandated time limits in the inmate discipline process that found petitioner before
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1
2

the DHO weeks after the video had been destroyed, and because of all these delays
petitioners [sic] ability to present a defense had been fatally impeded in violation of his

3
4
5
6

rights of due process.” Petition (Doc. 1) at 9.
As discussed in Section III.C.2., supra, “[a] habeas claim cannot be sustained
based solely upon the BOP’s purported violation of its own program statement because

7
8

noncompliance with a BOP program statement is not a violation of federal law.” Reeb v.

9

Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011). Furthermore, as discussed in Sections

10

III.C.6 & 8, Petitioner’s inability to present non-exculpatory video evidence does not

11
12
13
14
15

violate his due process rights.
10. Ground Nine: Investigating Officer’s Report
Petitioner asserts that “a request was made by petitioner at the hearing for the
review of the ‘investigating officers [sic] report’ by either himself, or his staff rep.”

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Petition (Doc. 1) at 9. Petitioner further alleges that DHO Petricka denied this request in
violation of his due process rights. Id.
Petitioner received the Incident Report in this matter on September 22, 2017 by Lt.

20
21

F. Turner, who was also the investigating officer. Response (Doc. 12), Huband Decl.

22

(Exh. “A”), Incident Rpt. No. 2349546 (Attach. “6”) at 6–8. DHO Petricka relied, inter

23

alia, on the contents of the incident report in making her determination. Id., Exh. “A,”

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25

Discipline Hr’g Rpt. (Attach. “6”) at 2. Due Process requires that “written notice of the

26

charges must be given to the disciplinary-action defendant in order to inform him of the

27

charges and to enable him to marshal the facts and prepare a defense” not less than

28

twenty-four hours before his UDC hearing. Wolff v. McDonnell, 418 U.S. 539, 564, 94
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1
2

S.Ct. 2963, 2979, 41 L.Ed.2d 935 (1974). This was done here. Petitioner’s due process
rights were not violated.

3
11. Ground Ten: Alco-Sensor

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6

Petitioner asserts that “a bogus test was used to determine petitioners [sic] guilt.”
Petition (Doc. 1) at 9.

Petitioner further asserts that “the ALCO-SENSOR is a

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8
9
10
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12

blood/alcohol (breathalyzer) analyzing device that is intended ONLY for determining the
blood-alcohol level of a human body by blowing into it, and not for liquid sample
analysis.” Id.
BOP Program Statement (“PS”) 6590.07 outlines the procedures for its Alcohol

13

Surveillance and Testing Program. As an initial matter “[t]he Alco-Sensor Model II, III

14

or IV, shall be used for testing.” PS 6590.07 ¶ 6. Although these instruments may be

15

used as a breathalyzer, “[t]he Alco-Sensor instrument shall be used to test liquids

16
17
18
19

suspected of containing alcohol following procedures outlined in the company brochure.”
Id. ¶ 9. Furthermore, “[l]iquids with a test reading of .02 or higher shall be considered
positive for alcohol.” Id.

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21

As such, Petitioner’s contention is without merit. The Incident Report documents

22

that the reading was over .400, which far exceeds the .02 limit, and the BOP procedures

23

document use of the Alco-Sensor for both testing individuals and suspect liquids. See

24
25
26
27
28

Response (Doc. 12), Huband Decl. (Exh. “A,”) Incident Rpt. No. 2349546 (Attach. “6”)
at 6; see also PS 6590.07.
12. Ground Eleven: DHO Petricka’s Investigation
Petitioner alleges that DHO Petricka “stated during the hearing that while she was
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1
2

investigating this incident she had talked to the special investigations section (SIS), and
learned that a large amount or hot chocolate was found in petitioners [sic] cell, and that

3
4
5
6

SIS suspected that the ‘suspected liquid’ may have contained some hot chocolate.”
Petition (Doc. 1) at 9–10. Petitioner asserts that “because [he] or his staff rep were not
allowed to review this evidence that was being used against him,” his due process rights

7
8

were violated.

9

There is no indication that DHO Petricka considered this evidence in reaching her

10

decision. See Response (Doc. 12), Huband Decl. (Exh. “A”), Discipline Hr’g Rpt.

11
12

(Attach. “6”) at 2. Moreover, as discussed in Section III.C.10., supra, Petitioner was

13

provided written notice of the charges against him in sufficient time to prepare his

14

defense. Due process does not require that Petitioner be allowed to review evidence not

15

considered by the DHO.

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19

13. Ground Twelve: Impartiality of DHO
Petitioner asserts that “statute and policy strictly forbid the DHO from acting as
“investigator” and require them to rely on evidence that has been presented to them, and

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21

because DHO patricka [sic] conducted her own investigation, complete with secret

22

reports, her hearing was contrary to statute and policy and has deprived petitioner of a

23

fair and impartial hearing and a hearing with the confines of statute and policy and has

24
25

violated his rights of due process.” Petition (Doc. 1) at 10.

26

“[D]ue process is satisfied as long as no member of the disciplinary board has

27

been involved in the investigation or prosecution of the particular case, or has had any

28

other form of personal involvement in the case.” Wolff v. McDonnell, 418 U.S. 539, 592,
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1
2

94 S.Ct. 2963, 2992, 41 L.Ed.2d 935 (1974) (Marshall, J. concurring in part and
dissenting in part). Here, DHO Petricka did not participate in the original incident or its

3
4
5
6

investigation, her only role was as the hearing officer. See Response (Doc. 12), Huband
Decl. (Exh. “A”), Discipline Hr’g Rpt. & Incident Rpt. No. 2349546 (Attach. “6”). As
discussed in Section III.C.12., supra, the DHO did not consider any of the evidence

7
8

Petitioner alleges she obtained improperly. Moreover, Petitioner has not demonstrated

9

any actual bias or impartiality on the part of the DHO, and there is no evidence before the

10

Court to suggest that the DHO’s decision was arbitrary. Accordingly, Petitioner’s claim

11
12
13
14
15

regarding DHO bias must fail.
14. Ground Thirteen: Consideration of Evidence
Petitioner asserts that “there were no facts supporting the DHO’s decision, and
that there were many facts to the contrary of petitioners [sic] guilt.” Petition (Doc. 1) at

16
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19

12. Petitioner further asserts that this deprived him of a fair and impartial hearing. Id.
As discussed in Section III.C.1., supra, “the requirements of due process are
satisfied if some evidence supports the decision by the prison disciplinary board to

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21

revoke good time credits.” Superintendent, Mass. Corrections Inst. v. Hill, 472 U.S. 445,

22

455–56, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985). Making this determination “does

23

not require examination of the entire record, independent assessment of the credibility of

24
25

witnesses, or weighing of the evidence.” Id. DHO Petricka weighed the evidence before

26

her and found that the staff member’s statements and observations were more credible

27

than Petitioner. Thus, there is sufficient evidence to support DHO Petricka’s decision,

28

and no due process violation occurred. See Cato v. Rushen, 824 F.2d 703, 705 (9th Cir.
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1
2

1987) (any evidence in the record is sufficient to meet the minimally stringent
requirement of Hill).

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5
6

15. Ground Fourteen: Petitioner’s Cellmate
Petitioner asserts that his “cellmate was given the exact same incident report . . .
and the exact same evidence and exact same circumstances . . . [and] was found ‘not

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8

guilty’.” Petition (Doc. 1) at 12. Petitioner alleges that DHO Petricka told his cellmate

9

that the closet was not in his area of control, there was no evidence of the cellmate

10

placing the liquid in the pipe chase, and because of all the delays there were issues of due

11
12
13
14
15

process. Id. Based on his cellmate’s experience, Petitioner claims that he did not receive
a fair and impartial hearing. Id.
Petitioner’s Discipline Hearing Report notes that Petitioner had been “in the cell
for approximately 4 months[;] Forrest was in there about a month prior to this incident.”

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19

Response (Doc. 12), Huband Decl. (Exh. “A”), Discipline Hr’g Rpt. (Attach. “6”) at 2.
This Court does not have any evidence, beyond Petitioner’s unsubstantiated assertions, of
what occurred in Petitioner’s cellmate’s disciplinary hearing; however, it is not

20
21

inconceivable that DHO Petricka found a finding of not guilty was warranted because of

22

the cellmate’s shorter time in the cell and that he was credible. As such, the Court finds

23

that Petitioner was not deprived of a fair and impartial hearing.

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25

D. Due Process in the Administrative Remedy Process

26

In Grounds Fifteen through Twenty-one, Petitioner alleges various violations of

27

his due process rights during the administrative remedy process. See Petition (Doc. 1) at

28

12–16. These include: (1) Petitioner filed a BP-10 regarding the DHO’s alleged refusal
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1
2

to issue a report, but allegedly did not receive a receipt or timely response, in violation of
his due process rights; (2) Petitioner filed a second BP-10 and alleges that the regional

3
4
5
6

office sent a backdated response, in violation of his due process rights; (3) because the
regional office did not respond to Petitioner’s allegedly properly filed BP-10, DHO
appeal, his due process rights were violated; (4) also because the regional office did not

7
8

timely respond, Petitioner asserts that his BP-11 was denied in violation of his due

9

process rights; (5) because D.C. allegedly did not timely respond to Petitioner’s BP-11

10

DHO appeal, Petitioner alleges a due process violation; (6) because the central office did

11
12

not respond to Petitioner’s BP-11 DHO appeal, petitioner alleges a due process violation;

13

and (7) because both the Western region in central office administrative remedy

14

coordinators failed to respond to Petitioner’s appeals, his due process rights were

15

violated.

16
As an initial matter, “inmates lack a separate constitutional entitlement to a

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18
19

specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.
2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). Furthermore, as

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21

discussed in Sections II.B. and III.B.3, supra, it appears that Petitioner’s repetitive

22

filings; failure to wait the requisite period for a response; failure to file instructions

23

provided by BOP; and failure to follow BOP policy contributed to his inability to

24
25

complete the administrative remedy process. Despite these shortcomings, Petitioner filed

26

his Petition and this Court has reviewed the merits of his claims. Accordingly, the Court

27

finds there was no denial of due process.

28

...
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E. Inmate Financial Responsibility Program (IFRP)
In Ground Twenty-two, Petitioner alleges that “the BOP has modified petitioners

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4
5
6

[sic] sentence in violation of law in an attempt to collect funds to pay petitioners
restitution assessed by the [M]iddle [D]istrict of Pennsylvania as the statutory duty to set
a restitution schedule belongs solely to the sentencing court and not the BOP.” Petition

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8
9
10
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12

(Doc. 1) at 17.
1. Statutory and Regulatory Background of the IFRP
a. Criminal Monetary Penalties
An inmate’s criminal monetary penalties are addressed by specific statutory

13

authority. The imposition of fines is governed generally by Section 3572, Title 18, United

14

States Code. Section 3572(d), 18 U.S.C., governs the time and method of payment,

15

stating in relevant part:

16

20

A person sentenced to pay a fine or other monetary penalty, including
restitution, shall make such payment immediately, unless, in the interest of
justice, the court provides for payment on a date certain or in installments.
If the court provides for payment in installments, the installments shall be
in equal monthly payments over the period provided by the court, unless
the court establishes another schedule.

21

18 U.S.C. § 3572(d). Section 3013(b), 18 U.S.C., states that special assessments “shall

17
18
19

22

be collected in the manner that fines are collected[.]”

Additionally, Section 3664, 18

23
24
25
26

U.S.C., delineates procedures for issuance and enforcement of orders of restitution.
The Ninth Circuit Court of Appeals has held that “the district court’s statutory
responsibility to set the restitution payment schedule is ‘non-delegable.’”

Ward v.

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Chavez, 678 F.3d 1042, 1046 (9th Cir. 2012) (citing United States v. Gunning (Gunning

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1
2

I), 339 F.3d 948, 949 (9th Cir. 2003); United States v. Gunning (Gunning II), 401 F.3d
1145, 1149 (9th Cir. 2005)).

Where the court has determined that a “defendant’s

3
4
5
6

financial resources are sufficient such that periodic payments are unwarranted, there is no
other entity the court delegates its responsibility to in ordering that restitution should be
paid immediately, and that restitution order is not unlawful[,] [b]ut where the defendant

7
8

has insufficient financial resources to make immediate repayment, the district court . . .

9

must set a repayment schedule in the judgment of conviction in order to discharge its

10

responsibilities under the MVRA.” Ward, 678 F.3d at 1049–50. The scheduling of

11
12
13
14
15

payment of fines, however, may be delegated to the BOP. Gunning II, 401 F.3d at 1150
(citing Montano-Figueroa v. Crabtree, 162 F.3d 548, 550 (9th Cir. 1998)).
b. Inmate Financial Responsibility Program (IFRP)
The BOP “encourages each sentenced inmate to meet his or her legitimate

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19

financial obligations” through the IFRP. See 28 C.F.R. § 545.10. “As part of the initial
classification process, [BOP] staff will assist the inmate in developing a financial plan for
meeting those obligations.” Id. The financial plan is designed to meet the inmate’s

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21

financial obligations in the following order of priority: (1) special assessment; (2) court-

22

ordered restitution; (3) fines and court costs; (4) state or local court obligations; and (5)

23

other federal government obligations.

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25
26
27
28

28 C.F.R. § 545.11(a).

Payments for the

aforementioned obligations may be made from institution resources, such as prison work
assignments, or from community resources. 28 C.F.R. § 545.11(b).
Through the IFRP, the BOP encourages inmates with financial obligations to
participate in the voluntary program, but does not force inmates to participate. United
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States v. Lemoine, 546 F.3d 1042, 1047 (9th Cir. 2008); see also 28 C.F.R. § 545.10. The
Ninth Circuit Court of Appeals has squarely addressed an inmate claims that the IFRP

3
4
5
6

was “involuntary and that he only assented to the terms of his financial plan ‘to avoid the
adverse consequences of not agreeing.’” Lemoine, 546 F.3d at 1049. The Lemoine court
held that the IFRP “does not implicate [an inmate’s] constitutional rights[,]” because an

7
8

inmate “ha[s] no entitlement, constitutional or otherwise, to any of the benefits agreeing

9

to participate in the IFRP would provide, such as work detail outside the prison

10

perimeter, a higher commissary spending limit, a release gratuity, or pay beyond the

11
12

maintenance pay level.” Id. Accordingly, “[t]he BOP . . . ha[s] the authority to create a

13

financial plan . . . through the IFRP and to impose penalties if [an inmate] fail[s] to accept

14

its terms.” Id.

15

2. Petitioner’s Restitution Is Being Lawfully Collected

16
17
18
19

Petitioner’s written judgment ordered that “[t]he defendant pay a special
assessment of $100 to the Clerk, U.S. District Court, due immediately . . . [and] shall pay
the balance of the restitution in minimum monthly installments of $100.” Response

20
21

(Doc. 12), Huband Decl. (Exh. “A”), USDC Middle Dist. of Pa., Case No. 3:CR-08-038,

22

Judgment in a Criminal Case (Attach. “4”) at 6. As such, the sentencing court met its

23

obligations under Ward by setting the restitution repayment schedule. See Ward v.

24
25

Chavez, 678 F.3d 1042, 1046 (9th Cir. 2012). Moreover, the repayment schedule set by

26

BOP for Petitioner to gain the benefits associated with IFRP compliance is $25.00 per

27

quarter. See Response (Doc. 12) at 17 n.4; see also United States v. Lemoine, 546 F.3d

28

1042, 1050 (9th Cir. 2008) (holding that “where the district court has properly set a
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1
2

restitution repayment schedule . . . the BOP has the authority to encourage voluntary
payments in excess of those required under the court’s judgment by conditioning the

3
4
5

receipt of certain privileges during the term of imprisonment on the inmate’s participation
in the IFRP.”)

6

Petitioner voluntarily enrolled in IFRP, and has participated in the program as

7
8
9
10
11
12

recently as 2014. Response (Doc. 12), Huband Decl. (Exh. “A”), Inmate Financial
Responsibility Financial Obligation Adjustments (Attach. “31”) at 3.

Petitioner’s

obligations under the IFRP are less than those mandated by the sentencing court. See id.,
Exh. “A,” Attach. “6” & Attach. “31.”

Additionally, Petitioner is free to stop

13

participating in the IFRP at any time and “did not have a preexisting right to receive any

14

of the benefits conditioned on his participation” in the IFRP, nor does he have any

15

constitutional rights to those privileges. Lemoine, 546 F.3d at 1046–49. Moreover, the

16
17
18
19

BOP is within its authority offer the IFRP, and Petitioner’s voluntarily participation
allows the BOP to collect and allocate Petitioner’s funds to his special assessments and
restitution. Accordingly, Petitioner’s claims are without merit and his Petition (Doc. 1)

20
21

shall be denied.

22
23
24
25

IV.

CONCLUSION
In light of the foregoing, the Court finds that the due process requirements as

26

delineated by Wolff were met in this case. Additionally, the Court finds that the DHO

27

was impartial and the DHO’s findings were supported by “some evidence” as required by

28

Hill. The Court further finds that Petitioner does not have any constitutional right to a
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1
2

specific administrative remedy process, and the BOP is properly collecting restitution
payments through Petitioner’s voluntary participation in the IFRP.

Therefore, the

3
4
5
6

Petitioner’s Petition (Doc. 1) shall be denied.
Finally, “the plain language of [28 U.S.C.] §2253(c)(1) does not require a
petitioner to obtain a [certificate of appealability] in order to appeal the denial of a §2241

7
8

petition.” Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008). “Nor is there any other

9

statutory basis for imposing a [certificate of appealability] requirement on legitimate

10

§2241 petitions. Although state prisoners proceeding under §2241 must obtain a

11
12

[certificate of appealability], see §2253(c)(1)(A), there is no parallel requirement for

13

federal prisoners.” Id. Accordingly, because Petitioner is a federal prisoner bringing a

14

legitimate §2241 petition, a certificate of appealability is not required.

15

Accordingly, IT IS HEREBY ORDERED that:

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19

(1)

J.T. Shartle, Warden, is SUBSTITUTED as Respondent for Louis W.

Winn, Jr., pursuant to Rule 25(d) of the Federal Rules of Civil Procedure and Rule
43(c)(2) of the Federal Rules of Appellate Procedure;

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21
22
23
24
25

(2)

Petitioner’s Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus

by a Person in Federal Custody (Doc. 1) is DENIED; and
(3)

The Clerk of the Court shall enter judgment and close its file in this matter.

Dated this 15th day of September, 2017.

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