Butler v. Gill

Filing 19

ORDER DENYING PETITION for Writ of Habeas Corpus and ORDER DECLINING to Issue a Certificate of Appealability signed by Magistrate Judge Barbara A. McAuliffe on 6/26/2015. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RODNEY BUTLER,

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Case No. 1:14-cv-00022-BAM HC

Petitioner,

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ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS

v.

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AUDREY GILL, Warden,

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Respondent.

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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241.1 He contends that the Bureau of Prisons ("BOP") violated his right
to due process by denying him access to a videotape of Unit C-1 Housing or a screen shot of its
inmate bulletin board, which Petitioner alleges would reveal that an April 17, 2012 order of Warden
P. Copenhaver, on which Petitioner's disciplinary sanctions were partially premised, was never
posted. Petitioner contends that denial of the videotape or a screenshot denied his right to present
evidence in a disciplinary hearing.
I.

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Background
On July 19, 2007, the U.S. District Court for the Eastern District of California sentenced

Petitioner to 240 months' imprisonment after he pleaded guilty to conspiracy to possess cocaine
with intent to distribute (21 U.S.C. § 846).

At the time of the alleged disciplinary infractions,

Petitioner, who remains in the custody of the BOP, was incarcerated at the Federal

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Pursuant to 28 U.S.C. § 636(c)(1), both parties consented, in writing, to the jurisdiction of a United States Magistrate
Judge to conduct all further proceedings in this case, including the entry of final judgment.

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Correctional Institution, Mendota, California. His projected release date is January 31, 2022, with

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good conduct time.

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On April 17, 2012, Warden Paul Copenhaver issued a memorandum for the inmate

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population, advising them that the Court Security Act had added two provisions: (1) a criminal

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offense for filing, attempting to file, or conspiring to file a false lien or encumbrance against the

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real or personal property of a federal judge or federal law enforcement officer (18 U.S.C. § 1521),

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and (2) making publicly available "restricted personal information" about a "covered person" with

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the intent to threaten, intimidate, or incite a crime of violence against such person (18 U.S.C. §

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119). "Covered persons," explained the warden, include court officers, jurors, witnesses,

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informants, and federal law enforcement officers, including BOP employees. Filing a lien against a

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"covered person" can constitute a violation of these statutes. Warden Copenhaver announced that

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beginning one week from the memorandum's date, all inmates would be prohibited from obtaining,

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possessing, or creating UCC filing statements. Inmates would also be prohibited from possessing

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the personal information of any "covered person" or their immediate family member, including but

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not limited to home address, home telephone number, social security number, personal email

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address, or home fax number. An inmate with a legitimate reason for possessing such information,

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such as because a "covered person" was his or her relative, was directed to advise unit staff.

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Inmates were warned that possession of UCC documents or the personal information of a "covered

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person" would result in confiscation of the prohibited matter and disciplinary charges.

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Incident Report No. 2304325, dated May 15, 2012, charged Petitioner with possession of

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anything unauthorized (Code 305), use of the mail for abuses other than criminal activity (Code

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296), and use of the telephone for abuses other than illegal activity (Code 297). SIS Technician B.

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Bragan described the incident:

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On May 15, 2012, at 10:00 a.m. SIS completed review of Inmate Rodney
Butler['s] Reg. No. 91084-012 property which contained multiple Uniform
Commercial Code forms which inmates are not allowed to possess in accordance
with [the] Implementation of Court Security Act.

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Inmate Butler sent out a letter on May 1, 2012 to [redaction] San Jose, CA 95127.
Inside the envelope contained two unauthorized Uniform Commercial Code forms
that were filled out by inmate Butler. Inmate Butler provided a frivolous address
of 1623 Darwin Street, Seaside, CA 93955 on the forms as well. Inmate Butler
abused the mail by directing others to send in unauthorized forms for him with a
fictitious return address.

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Inmate Butler placed a phone call on 5/5/2012 at 4:58 p.m. to phone number 916710-5825. During this call inmate Butler asks the individual to download and fill
out a Uniform Commercial Code Financing Statement form from SOS.SA.GOV.
On May 7, 2012, at 5:25 p.m., Butler also placed a call to this number. During
this call inmate Butler directs the individual how to fill out the Uniform
Commercial Code Financing Statement Amendment form using inmate Butler's
info. The content of these calls is prohibited due to the fact that inmate Butler had
his outside contact fill out unauthorized Uniform Commercial Code forms using
erroneous information, such as incorrect address, and use of Butler's information.
Doc. 15-1 at 34.

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Prison staff became aware of Petitioner's actions when the Post Office returned the letter,
which had been sent certified, because the intended recipient's address was vacant. The envelope

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contained the UCC statements, which sought to vacate Petitioner's driver's license, judgment and

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commitment, or social security number. The specified debtor was "John Henry Doe," whose

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address was "[in] care of: Post Office Box 9999, Los Angeles 90010 California." Doc. 15-1 at 45.

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When contacted by Lt. E. Torres, who investigated the incident, Petitioner stated, "First,
1623 Darwin is not a frivolous address and second, I did not violate any finance statements." Doc.

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15-1 at 35. The Unit Disciplinary Committee referred the matter to the Disciplinary Hearing
Officer, recommending maximum punishment.
DHO J. De Vore heard conducted a disciplinary hearing on May 21, 2012. Petitioner
declined the assistance of a staff representative.

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Butler claimed the memorandum indicating UCC forms were contraband was
never posted. He claimed the UCC form was submitted to delete his Social
Security Number and Driver's License number. He said he did use another
address to have correspondence routed through and it was his home.

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Doc. 15-1 at 30.

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The DHO considered the following documentary evidence: the incident report and

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investigation, Warden Copenhaver's memorandum, the envelope sent by Petitioner, and eight pages

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of UCC filing statements. Petitioner requested no witnesses or evidence. Nothing in the DHO's

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report indicates that Petitioner requested that Respondent provide him or the DHO with any

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evidence.

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The DHO concluded that Petitioner had committed the three code violations of which he

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was accused. The DHO made the following findings and conclusions:
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The DHO relied on the following: The summary of the review of your outgoing
correspondence that was conducted on 5-15-2012. During this review staff found
you, Inmate Butler, Reg. No. 91084-012, were sending out a letter through the US
Postal Service that contained several Uniform Commercial Code (UCC) forms.
These forms were sent to an individual in the public with the intention of having
them forwarded to another address. Additionally, you provided a return address
with your name but not the institution's address where you are currently
incarcerated. A review of your phone records indicated that you had placed a
phone call to 916-710-5825 on 5-5-2012. During the phone call, you had
discussed having the individual download and prepare UCC forms. On 5-7-2012
you placed another call to the same number and instructed the individual to utilize
the address of 1623 Darwin on the forms. A review of the UCC forms indicated
that the address of 1623 Darwin was listed as your address in block B "SEND
ACKNOWLEDGEMENT TO (NAME AND ADDRESS)." You utilized the
phone to arrange, facilitate and further the abuse of the mail by masking your true
address which is "RODNEY BUTLER, Reg. No. 910840012, Unit C, PO Box 9,
Mendota, CA 93640." The UCC forms indicated the information contained on
the forms directly related to you yet you used a return address that indicated you
were masking your true location to the recipient of the UCC forms. The UCC
forms contained information that you were attempting to have your Judgment and
Commitment deleted. You intentionally used a third party to forward the UCC
forms and utilized a false return address in an effort to not allow the recipient and
reviewer of the documents to know you were incarcerated. You used the phone to
further that act of misconduct.
The DHO reviewed the memorandum from the Warden to the inmate population
at the facility you were incarcerated. This memorandum dated 4-17-2012 put the
inmate population on notice that the possession of UCC forms was prohibited
effective one week from the dated memorandum. The envelope with the UCC
forms was postmarked 5-1-2012, more than one week from the posting of the
memorandum. The DHO took into consideration your claim the memorandum
was not distributed to the inmate population, however, the SHU Lieutenant,
Lieutenant Marlow, who was present at the hearing examined the memorandum
and said the memo was in fact posted for the inmate population on the date the
memorandum was dated. The DHO finds you have received notice that the
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document was not authorized for retention. You have an incentive to avoid the
consequences of your actions where Lieutenant Marlow had no motive to
misrepresent the posting of the memorandum.
The DHO also considered your statement that the UCC form was filled out by you
to delete your driver's license and social security numbers. However, the DHO
read the UCC filing and found you were attempting to have your Judgment and
Commitment deleted.
The DHO noted that you did not deny or refute the facts contained in section 11
of the incident report regarding the mail, the address used or the phone call. You
claimed you were using your home address as the address you would receive
mail. The DHO read a handwritten note include in the UCC filing envelope you
were sending out. The note was addressed to the Secretary of State of California
and requested that the UCC documents be filed and a copy sent to the above
address, which was "Rodney Butler, c/o 1623 Darwin Street, Seaside, CA 93955."
Inmates are required to directly correspond with individuals in the community
using their inmate institutional address.

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Based on the greater weight of the evidence you possessed the UCC forms you
had placed in the envelope on 5-1-2012, the DHO finds you had committed the
prohibited act of Code 305.
Based on the greater weight of the evidence you utilized a third party address in
the community to send and receive mail for you, the DHO finds you committed
the prohibited act of Code 296.

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Based on the greater weight of the evidence you utilized the phone to facilitate
and further the use of a third party to forward your US mail (a violation of Code
296), the DHO finds you committed Code 297, by using the phone to further a
high severity act of misconduct.

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Doc. 15-1 at 31-32.

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For violation of code 297, the DHO sanctioned Petitioner with three months' loss of telephone and
disallowed 27 days of good conduct time; for code 296, three months' loss of email and

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disallowance of 27 days of good conduct time; for code 305, thirty days' disciplinary segregation
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and three months' loss of commissary items.
On January 6, 2014, Petitioner filed the petition for writ of habeas corpus in this Court. The

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parties do not dispute venue, personal service, subject matter jurisdiction, or exhaustion of

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remedies.

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II.

Due Process Right to Present Evidence
Under the Due Process Clause, inmates have a right to call witness and to present evidence

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in a disciplinary hearing so long as doing so is not "unduly hazardous to institutional safety or

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correctional goals." Ponte v. Real, 471 U.S. 491, 499 (1985); Wolff v. McDonnell, 418 U.S. 539,

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566 (1974). Nonetheless, determining an inmate's right to present witnesses and relevant

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documentary evidence requires the court to balance the individual inmate's interest in avoiding loss

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of good conduct time against the institution's need to keep the hearing within reasonable limits and
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to limit witnesses that may create a risk of reprisal or undermine authority. Wolff, 418 U.S. at 566.
Weighing competing interests in this case is nearly impossible. Petitioner's vague grounds

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fail to explain the nature or source of the alleged videotape, assuming that it even exists. To the

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extent that Petitioner refers to generalized video surveillance of a common area of his housing unit,

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for example, the Court could reasonably find it unduly burdensome to require prison personnel to
screen many hours of video surveillance in the hope of spotting a shot of the common bulletin

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board sufficiently detailed to demonstrate that the Warden's memorandum was or was not posted
there at a single point in time.

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Further, nothing in the record even suggests that Petitioner ever sought such video or

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photographic evidence before bringing his habeas petition. He declined to discuss the incident with

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the unit investigator and the unit disciplinary committee, stating that he would wait until the DHO

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hearing. The DHO's report includes nothing tending to suggest that Petitioner ever requested the

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videotape or screen shot. The evidence demonstrates that at the hearing, Petitioner presented his
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defense that the Warden’s memo was never posted. Although a staff witness testified that the

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Warden's memorandum was posted, Petitioner declined to present any witnesses, including one

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who might have testified that the memorandum never appeared on the bulletin board.

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The Court finds Petitioner's vague and unsupported claim to lack credibility. Broad,

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conclusive claims of unconstitutionality are insufficient to state a cognizable claim. Jones v.

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Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995). The Court declines to grant the petition on a single

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vague and unsupported ground.

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IV.

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Certificate of Appealability
A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district

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court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. Cockrell,
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537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate
of appealability is 28 U.S.C. § 2253, which provides:
(a) In a habeas corpus proceeding or a proceeding under section 2255 before a
district judge, the final order shall be subject to review, on appeal, by the court of
appeals for the circuit in which the proceeding is held.

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(b) There shall be no right of appeal from a final order in a proceeding to test the
validity of a warrant to remove to another district or place for commitment or trial
a person charged with a criminal offense against the United States, or to test the
validity of such person's detention pending removal proceedings.

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(c)

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(1) Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court; or

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(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a constitutional
right.
(3) The certificate of appealability under paragraph (1) shall indicate which
specific issues or issues satisfy the showing required by paragraph (2).
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If a court denies a petitioner's petition, the court may only issue a certificate of appealability

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"if jurists of reason could disagree with the district court's resolution of his constitutional claims or

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that jurists could conclude the issues presented are adequate to deserve encouragement to proceed

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further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the

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petitioner is not required to prove the merits of his case, he must demonstrate "something more than

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the absence of frivolity or the existence of mere good faith on his . . . part." Miller-El, 537 U.S. at

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338.

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In the present case, the Court finds that reasonable jurists would not find the Court's
determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or

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deserving of encouragement to proceed further. Petitioner has not made the required substantial
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showing of the denial of a constitutional right. Accordingly, the Court declines to issue a certificate

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of appealability.

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IV.

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Conclusion and Order
The Court hereby ORDERS that:
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The petition for writ of habeas corpus is DENIED;

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The Clerk of Court is DIRECTED to enter judgment for Respondent; and

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The Court DECLINES to issue a certificate of appealability.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

June 26, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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