Phillips v. Zuniga

Filing 6

ORDER signed by Magistrate Judge Edmund F. Brennan on 7/2/14 ORDERING that the petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2241, is DISMISSED and the Clerk is directed to close the case.CASE CLOSED. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TONY PHILIPS,

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No. 2:14-cv-646-EFB P
Petitioner,

v.

ORDER

REFAEL ZUNIGA,

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Respondent.

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Petitioner is a federal prisoner housed at the Herlong Federal Correctional Institution. He

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is proceeding without counsel on a petition seeking a writ of habeas corpus pursuant to 28 U.S.C.

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§ 2241.1 He has paid the filing fee.

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Habeas corpus relief extends to a person in custody under the authority of the United

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States. See 28 U.S.C. § 2241(c)(1). Claims concerning the manner and execution of a prisoner’s

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sentence are properly asserted under section 2241. See, e.g., Tucker v. Carlson, 925 F.2d 330,

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331 (9th Cir. 1991) (stating that a challenge to the execution of a sentence is “maintainable only

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in a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241”). The Rules Governing

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Section 2254 Cases in the United States District Courts also apply to petitions filed under section

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2241. Rule 1(b), Rules Governing Section 2254 Cases. Under Rule 4, the court may dismiss a

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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
§ 636(b)(1) and is before the undersigned pursuant to the parties’ consent. E.D. Cal. Local Rules,
Appx. A, at (k).
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petition if it “plainly appears from the face of the petition and any attached exhibits that the

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petitioner is not entitled to relief . . . .” See also Advisory Committee Notes to Rule 8 of the

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Rules Governing Section 2254 Cases. However, the court should not dismiss a petition without

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leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave

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granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

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On November 13, 2012, petitioner was charged through prison disciplinary proceedings

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with assault and refusing an order from a staff member. ECF No. 1 at 1-2, 14. He received

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written notice of the charges that day. Id. at 22. The matter was heard by a disciplinary hearing

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officer on January 10, 2013. Id. at 2. Petitioner was advised of his rights by the disciplinary

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hearing officer on November 26, 2012. Id. at 22. Petitioner was appointed a staff representative,

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who appeared with petitioner at the hearing. Id. At the hearing, petitioner provided his version of

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the incident, submitted documentary evidence, and his requested witnesses testified on his behalf.

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Id. at 2, 23-24. The disciplinary hearing officer considered the evidence and found petitioner

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guilty of both charges. Id. at 3, 24-26 (including a written statement of the evidence relied upon).

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Petitioner was sanctioned through a loss of good time credits. Id. at 26. He requests that the

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court vacate the disciplinary sanction and restore his lost credits. Id. at 6, 9.

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Petitioner contends that his procedural rights to due process, as provided for in Wolff v.

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McDonnell, 418 U.S. 539 (1974), were violated because (1) the officer who investigated the

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incident was not properly certified, as required by the Code of Federal Regulations, and (2) that

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the disciplinary hearing officer credited evidence showing that petitioner was the aggressor, even

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though there was more evidence showing that petitioner was not the aggressor. Id. at 3-9.

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In the context of a disciplinary proceeding where a liberty interest is at stake, due process

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requires that “some evidence” support the disciplinary decision. Superintendent v. Hill, 472 U.S.

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445, 455 (1985). The inmate must also receive: “(1) advance written notice of the disciplinary

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charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to

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call witnesses and present documentary evidence in his defense; and (3) a written statement by

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the factfinder of the evidence relied on and the reasons for the disciplinary action.” Id. at 454

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(citing Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974)).
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The petition itself demonstrates that the Wolff requirements were met in this case, as

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petitioner received advance written notice of the charges, was able to call witnesses and present

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documentary evidence in his defense, and received a written statement by the hearing officer of

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the evidence relied upon and the reasons for the disciplinary action.

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In addition, the determination of guilt was supported by “some evidence.” According to

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petitioner, one officer provided the following summary of the incident prompting the charges of

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assault and refusing an order:

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I was directing the inmates into the chow hall for lunch. I told inmate Phillips to
go to the other line, and he continued to stare at me, and refuse[d] to move. I then
told Phillips that if he didn’t go to the other line he could leave the chow hall. At
this time Phillips yelled “get out of my face” and swung a closed fist at me.

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ECF No. 1 at 6. Petitioner claims that another officer described the incident in similar terms. Id.

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at 6-7. The hearing officer cited to these officers’ written reports as evidence supporting his

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finding of petitioner’s guilt. Id. at 24-25. This clearly is “some evidence” that petitioner

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committed an assault and refused an order.

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Petitioner’s contention that the officer who investigated the incident was not properly

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certified, as required by the Code of Federal Regulations, does not amount to a due process

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violation. The relevant inquiry is not “whether the prison complied with its own regulations,” but

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whether petitioner was “provided with process sufficient to meet the Wolff standard.” Walker v.

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Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994). In Wolff, the Supreme Court specifically set forth

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the minimal requirements that the Constitution requires to comply with federal due process

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standards. Petitioner’s focus on an alleged violation of a federal regulation does not implicate

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due process concerns.
Because the petition plainly demonstrates that petitioner was provided all the process he

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was due, the petition must be dismissed without leave to amend.

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Accordingly, IT IS HEREBY ORDERED that the petition for writ of habeas corpus,

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pursuant to 28 U.S.C. § 2241, is dismissed and the Clerk is directed to close the case.

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DATED: July 2, 2014.

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