Sanders v. Alpha House et al

Filing 9

ORDER DENYING PETITION. Motion for appointment of counsel 6 and motion to dismiss the criminal indictment 8 are MOOT. Any appeal from this disposition would not be taken in good faith. Signed by Judge Susan P. Watters on 9/21/2015. Mailed to Sanders with Fed.R. App. P. Form 4 (9th Cir.) (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
Cause No. CR 15-80-BLG-SPW

RICHARD BRUCE SANDERS,
Petitioner,

ORDER DENYING PETITION

vs.
ALPHA HOUSE; BUREAU OF
PRISONS; GIORGIANN DECKARD,
Respondents.

This case comes before the Court on Petitioner Sanders' petition for writ of
habeas corpus under 28 U.S.C. § 2241. Sanders states that he is currently detained
at the Yellowstone County Detention Center. He is a federal prisoner proceeding
pro se. The Court concludes that an Answer need not be filed. See Rule 1(b), 4,
Rules Governing § 2254 Cases.
On June 28, 2015, Sanders provided a urine sample that tested positive for
opiates, i.e., codeine and/or morphine. After a disciplinary hearing, he was
sanctioned by loss of30 days' good-conduct time, detention for 41 days, and
removal from the pre-release center where he had been living. He contends he
obtained evidence after the hearing that would have provided a reasonable
explanation for the positive result. He also claims that the charge against him was
altered after the hearing and that the positive result was "orchestrated" when staff
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at the pre-release center adulterated his blood-pressure medication. As a result of
the disciplinary violation, Sanders is serving more time under more restrictive
conditions thanhe would otherwise have served in the pre-release center. See Pet.
(Doc. 1) at 2-4; Supp. (Doc. 7 to 7-4).
Federal courts do not retry inmate disciplinary hearings; they only decide
whether an inmate was provided due process in a disciplinary hearing. Setting
aside the question of whether Sanders properly exhausted his administrative
remedies, the exhibits he submitted to show exhaustion demonstrate that he
received due process. He was notified of the alleged violation and of the
disciplinary hearing four days before it occurred. Notice of Hearing (Doc. 5 at 6).
He was advised that he could call witnesses or present documentary evidence at the
hearing. Id.; see also Inmate Rights (Doc. 5 at 5). He received a written statement
of the decision and the evidence and reasons supporting it. Center Discipline
Committee Report~~ IV-VIII (Doc. 5 at 3-4). That is what is required. See Woljfv.

McDonnell, 418 U.S. 539, 563, 564 (1974). It is clear that Sanders is not entitled to
relief on his allegations regarding the disciplinary hearing. Because Sanders is not
entitled to relief, his motion for the appointment of counsel is moot.
Sanders' petition also reiterates allegations regarding his treaty right to
possess firearms. See Pet. at 1-2. He recently filed a motion to dismiss the criminal
indictment. See Mot. to Dismiss (Doc. 8). Those allegations challenge the validity
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of Sanders' conviction. They can only be made in a motion under 28 U.S.C. §
2255. See generally Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012);

Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006). As Sanders well knows,
this Court lacks jurisdiction to hear those allegations unless and until Sanders
obtains leave from the Court of Appeals to file a second or successive§ 2255
motion. See Order (Doc. 155); Order & Am. Order (Docs. 159, 160). Therefore,
the Court simply disregards these allegations.
Sanders has not filed a motion under 28 U.S.C. § 2255. The Court has not
recharacterized his pleading or any portion of it as a § 2255 motion. Because a
certificate of appealability is inapposite where a federal prisoner files a petition
under 28 U.S.C. § 2241, see 28 U.S.C. § 2253(c)(1), the Court will neither grant
nor deny a certificate of appealability. However, should Sanders seek to appeal this
decision, he should be required to pay the full filing fee. Fed. R. App. P.
24(a)(4)(B), (5).
If Sanders wishes to appeal, he must file a notice of appeal in this Court. If
Sanders chooses to apply for forma pauperis status on appeal, he must complete
the Court of Appeals' standard form for motions to proceed in forma pauperis on
appeal and file it in the Court of Appeals after he receives a case number from that
court. The form will be provided to him with this Order.

Accordingly, IT IS HEREBY ORDERED as follows:
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1. Sanders' petition under 28 U.S.C. § 2241 is DENIED for lack of merit.

2. The motion for appointment of counsel (Doc. 6) and the motion to dismiss
the criminal indictment (Doc. 8) are MOOT due to dismissal of the petition.
3. The Clerk shall enter, by separate document, judgment in favor of
Respondents and against Petitioner.
4. Pursuant to Fed. R. App. P. 24(4)(B), the Court CERTIFIES that any
appeal from this disposition would not be taken in good faith.
5. With Sanders' service copy of this Order, the Clerk of Court shall include
the Ninth Circuit's standard form for motions to proceed in forma pauperis on
appeal.
~

DATED this

d£2 day of September, 2015.

usan P. Watters
United States District Court

enc: Fed.R. App. P. Form 4 (9th Cir.)

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