Pierre Clifton-Marshall v. Louis Milusnic

Filing 11

ORDER DISMISSING HABEAS CORPUS PETITION by Judge Beverly Reid O'Connell. See order for details. (jy)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

PIERRE CLIFTON MARSHALL,
Petitioner,

11
12

v.

13

LOUIS MILUSNIC, WARDEN,

14

Respondent.

)
)
)
)
)
)
)
)
)
)

CASE NO. CV 14-3649-BRO (PJW)
ORDER DISMISSING HABEAS CORPUS
PETITION

15
16

On May 13, 2014, Petitioner, who is currently incarcerated in the

17

Federal Correctional Complex in Adelanto, California, filed the

18

instant Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C.

19

§ 2241, alleging that, in August 2006, he was denied his right to

20

procedural due process after a private contractor, rather than a

21

federal Bureau of Prisons (“BOP”) employee, conducted a disciplinary

22

hearing, found him guilty of a rules violation, and sanctioned him to

23

a loss of 80 days good-time credits.

24

Points and Authorities at 2-3.)

25

contractor was not authorized to discipline him.

26

as a result, his good-time credits be restored and the disciplinary

27

report be expunged from his prison record.

28

Authorities at 10.)

(Petition at 3; Memorandum of

Petitioner argued that the private
He requested that,

(Memorandum of Points and

1

In response to the Petition, on June 25, 2014, the BOP vacated

2

the disciplinary findings and conducted a new hearing before a BOP

3

employee acting as the Hearings Officer.

4

Petitioner guilty and imposed the same sanctions that had been

5

originally imposed.

6

¶¶ 4-7; Exh. B.)

7

motion to dismiss the instant Petition on the ground that Petitioner’s

8

claim for relief was now moot.

That Hearings Officer found

(Motion to Dismiss at 1-2; Decl. of R.A. Byrd at

Thereafter, on June 27, 2014, Respondent filed a

9

Petitioner opposed the motion, arguing that the Petition was not

10

moot because his good-time credits had not been restored and the 2006

11

Hearing Officer’s findings and conclusions had not been expunged.

12

also argued that the BOP should not have held a new hearing because it

13

no longer had jurisdiction to conduct a hearing once he had filed the

14

Petition.

15

rejects these arguments.

(Opposition at 4-11.)

He

For the following reasons, the Court

16

The basis of the Petition was that the prison officer who

17

presided over his 2006 disciplinary hearing was not a BOP employee.

18

(Petition at 3.)

19

by the BOP’s decision to vacate the 2006 findings by the non-BOP

20

employee and to hold a new hearing with a BOP employee.

21

Petitioner’s claimed due process violation has been cured with the new

22

hearing, his complaint is moot.

23

(8th Cir. 1991) (holding due process violations cured where prisoner

24

granted new hearing); Batanic v. INS, 12 F.3d 662, 667 (7th Cir. 1993)

25

(“Generally speaking, procedural errors are cured by holding a new

26

hearing in compliance with due process requirements.”).

27
28

That error, assuming that it was error, was mooted

Because

See Harper v. Lee, 938 F.2d 104, 105

As to Petitioner’s claim that the BOP did not have jurisdiction
to hold a new hearing once he filed this Petition, the Court
2

1

disagrees.

There is no authority supporting that argument.

And, even

2

if there was, it is an issue that Petitioner must raise in a separate

3

challenge to the second hearing once he has exhausted his

4

administrative remedies as to that hearing.

5

Roberts, 804 F.2d 570, 571 (9th Cir. 1986); see also Ward v. Chavez,

6

678 F.3d 1042, 1045 (9th Cir. 2012) (“As a prudential matter, courts

7

require that habeas petitioners exhaust all available judicial and

8

administrative remedies before seeking relief under § 2241.”).

9

same holds true for his claims that he was denied his right to call

See, e.g., Martinez v.

The

10

witnesses, present evidence, or make a statement on his own behalf at

11

the June 2014 hearing.

12

at ¶¶ 12-14.)

13

these reasons the Petition is denied and the action is dismissed.

14
15

(Decl. of Petitioner, attached to Opposition,

Until such time, he may not proceed in this court.

IT IS SO ORDERED.
DATED:

August 5, 2014.

16
17
BEVERLY REID O’CONNELL
UNITED STATES DISTRICT JUDGE

18
19

Presented by:

20
21

PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28

C:\Temp\notesD30550\Order Dismissing.wpd

3

For