Flores v. Thomas et al
Filing
41
OPINION AND ORDER. Based on the foregoing, petitioner's amended petition for writ of habeas corpus (#25) is DENIED, and this proceeding is DISMISSED, with prejudice. IT IS SO ORDERED. Signed on 01/05/2012 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
ARTURO FLORES,
Case No. 3:11-cv-355-MA
Petitioner,
v.
J.E. THOMAS, Warden, FCI
Sheridan, ROBERT McFADDEN,
KEVIN STRAIGHT,
Respondents.
ANTHONY D. BORNSTEIN
Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, OR 97204
Attorney for Petitioner
S. AMANDA MARSHALL
United States Attorney
District of Oregon
KEVIN C. DANIELSON
Assistant United States Attorney
United States Attorney's Office
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
Attorneys for Respondents
1 - OPINION AND ORDER
OPINION AND ORDER
MARSH, Judge
Petitioner
Arturo
Flores,
an
inmate
at
the
Federal
Correctional Institution in Sheridan, Oregon, brings this petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner
alleges that he received an inadequate and unnecessarily delayed
hearing and was denied due process when the Bureau of Prisons (BOP)
transferred him to a more secure facility after finding petitioner
had escaped from a residential reentry center (RRC).
For the
reasons set forth below, the petition is DENIED.
BACKGROUND
Petitioner
is
serving
a
63
month
sentence
for
unlawful
possession of a firearm in violation of 18 U. S. C. § 922(g)(1), to
be followed by three years of post-prison supervision.
Prior to
the events at issue in this case, petitioner’s projected release
date was May 21, 2011, via good conduct time (GCT) credits and the
Bureau
of
Prisons
drug
and
alcohol
program
(RDAP)
credit.
Petitioner’s current projected release date is February 16, 2012.
Petitioner completed the residential component of RDAP and was
transferred from FCI Sheridan to the Port of Hope Drug and Alcohol
Treatment Center, an RRC in Nampa, Idaho.
On January 9, 2011, at
some point between 11 and 11:15 p.m., RRC staff conducted a head
count and discovered that petitioner was not in bed as expected,
and that his bed was stuffed with clothes to appear as if he was in
bed.
RRC staff then conducted a more thorough search of the
2 - OPINION AND ORDER
facility
and
grounds
to
find
petitioner,
to
no
avail.
At
approximately 11:30 p.m., petitioner arrived at the front desk of
the RRC to let staff know he was on the premises.
Petitioner
indicated that he had been outside to meet with his ex-wife.
At
approximately 2:04 a.m. on January 10, petitioner provided a
urinalysis sample at the direction of RRC staff, and then he went
to sleep at the RRC.
Petitioner asserts that about 12 p.m. on January 10, the
director of Port of Hope RRC provided him with an Incident Report
for a Code 200 violation for Escape.
Petitioner submits that he
was then arrested by the United States Marshals and taken to Canyon
County Jail.
On January 18, 2011, petitioner received another Incident
Report for a Code 112 violation for use of narcotics, drugs, or
other paraphernalia not prescribed by medical staff.
The Incident
Report was based on the urinalysis sample petitioner provided on
January 10, which was positive for methamphetamine. Petitioner was
subsequently transferred to FCI Sheridan.
On
March
proceeding.
22,
2011,
petitioner
filed
the
instant
habeas
At the direction of the Western Regional Office, the
Incident Reports were re-written, and the investigations conducted
anew.
On May 13, 2011, Petitioner was provided with a new Unit
Disciplinary Hearing for each Incident Report.
3 - OPINION AND ORDER
Following the May
13, 2011 hearings, petitioner was sanctioned with 27 days lost GCT
for each violation.
DISCUSSION
In
this
habeas
proceeding,
petitioner
advances
several
arguments challenging the BOP's sanctions of 54 days lost GCT
credits and disciplinary transfer. First, petitioner contends that
the May 13, 2011 hearings did not comport with due process because
they were held post-deprivation.
Second, petitioner alleges that
there was an unreasonable delay before the May 13, 2011 hearings,
violating 28 C.F.R. § 541.15(b). Third, petitioner argues that the
Escape charge is not supported by “some evidence.”
And fourth,
petitioner requests an evidentiary hearing to establish that the
BOP did not have good cause justifying the delay of the May 13,
2011 hearings.
Respondent submits that the petition must be dismissed because
petitioner has failed to exhaust his administrative remedies.
Respondent also contends that petitioner has received all the
process he was due at all of his hearings, and that the sanctions
imposed are in step with BOP policy and regulations.
Moreover,
respondent contends that the hearing was based on “some evidence”
to find petitioner guilty of Escape, and therefore, habeas relief
must be denied.
Respondent is correct.
////
////
4 - OPINION AND ORDER
I.
Petitioner’s Failure to Exhaust is Excused.
In
general,
federal
prisoners
must
exhaust
their
administrative remedies prior to filing a habeas corpus petition
under 28 U.S.C. § 2241.
Martinez v. Roberts, 804 F.2d 570, 571
(9th Cir. 1986)(per curiam).
Although the exhaustion requirement
is not jurisdictional, this court may dismiss a habeas petition for
failure to exhaust administrative remedies. Id. Exhaustion may be
excused if the administrative remedies are inadequate, futile, or
where
pursuit
of
irreparable injury.
the
administrative
remedies
would
cause
See Laing v. Ashcroft, 370 F.3d 994, 1000-01
(9th Cir. 2004).
Petitioner asserts that while he was at the Canyon County
jail, he wrote a letter to the Regional Director appealing his
removal from the RRC.
(Petitioner’s Brief, #23, p. 3.)
However,
there is no record of petitioner filing any administrative remedies
for either incident report.
(Dec. of Cecilia Burks #33, p.2.)
Thus, petitioner has not exhausted his administrative remedies.
While the court has some concern that petitioner did not diligently
pursue his administrative remedies, it is obvious that requiring
exhaustion
at
this
juncture
would
be
futile.
Accordingly,
petitioner’s failure to exhaust is excused in the circumstances of
this case.
////
////
5 - OPINION AND ORDER
II.
Petitioner Received All the Process He Was Due under Wolff in
the January and May Hearings.
In order to obtain relief pursuant to 28 U.S.C. § 2241,
petitioner must establish that he is “in custody in violation of
the Constitution or laws or treaties of the United States.”
28
U.S.C. § 2241(b)(3).
It is well established that an inmate must be afforded
procedural protections before he can be deprived of a protected
liberty interest, which includes good conduct time credits.
Wolff
v. McDonnell, 418 U.S. 539, 556-57 (1974); Superintendent v. Hill,
472 U.S. 445, 454 (1985). However, “[p]rison disciplinary hearings
are not part of a criminal prosecution, and the full panoply of
rights due a defendant in such proceedings does not apply.” Wolff,
418 U.S. at 556.
Due process in prison disciplinary hearings requires: (1) the
right to appear before an impartial decision-maker; (2) 24-hour
advance
written
opportunity,
notice
when
of
the
consistent
disciplinary
with
charges;
institutional
(3)
safety
an
and
correctional goals, to call witnesses and present documentary
evidence
in
his
defense;
(4)
assistance
from
an
inmate
representative if the charged inmate is illiterate or complex
issues are involved; and (5) a written statement by the factfinder
of the evidence relied on and the reasons for the disciplinary
action.
Wolff, 418 U.S. at 563-77; Hill, 472 U.S. at 454; see also
6 - OPINION AND ORDER
Argento v. Thomas, 2010 WL 3661998, *4 (D. Or. Sept. 17, 2010).
The substantive requirements of due process are satisfied where
there is “some evidence” to support the decision by the prison
disciplinary officials.
Hill, 472 U.S. at 454.
Because petitioner was housed in an RRC at the time of the
incident,
due
process
is
afforded
at
a
Center
Disciplinary
Committee (CDC) hearing, with review by a Discipline Hearing
Officer.
Mazzanti v. Bogan, 866 F. Supp. 1029, 1033 (E.D. Mich.
1994); accord Harris v. Norwood, 2008 WL 5377647, *1 (C.D. Cal.
Dec. 16, 2008)(no due process violation where petitioner at RRC
given CDC hearing, with review by DHO prior to sanctions of GCT
credits loss and disciplinary transfer). See Community Corrections
Manual, BOP Program Statement 7300.09, p. 18-19, available at
www.bop.gov/DataSource/execute/dsPolicyLoc (disciplinary procedures
used by CDCs must adhere to Wolff).
Concerning the Incident Report for a Code 200 violation for
Escape occurring on January 9, 2011, the record demonstrates that
petitioner received the minimum procedural protections afforded
under Wolff.1
On January 10, 2011, petitioner was provided with a
copy of the incident report, and at that time, petitioner waived
his right to 24 hours advance notice of the hearing, as evidenced
1
It is not entirely clear whether petitioner intends to
challenge the January hearings in addition to the May 13
hearings. I have analyzed the January hearings in an abundance of
caution.
7 - OPINION AND ORDER
by petitioner’s signed waiver.
(Second Cortez Dec. #39-1, Amend.
Att. 1, p. 11.) Petitioner’s hearing was conducted by an impartial
CDC, who was not involved in the incident or its investigation.
(Anderson Dec. #36, p. 3.)
At that time, petitioner also waived
his right to call witnesses and his right to staff representation.
(Anderson Dec. #40, Amended Att. 1, p. 7-8.)
The hearing officer
found that petitioner admitted to the RRC case manager that he
intended to be unaccountable, and that he “stuffed” his bed with
the
intention
of
deceiving
accountability checks.
the
RRC
staff
during
their
(Id. at p. 9.) The hearing officer also
concluded that the RRC staff visually verified that petitioner was
not in his bed, and that it had been stuffed.
(Id.)
The BOP
submits that following the hearing, petitioner was provided with a
written statement of the evidence relied upon and the reasons for
the decision, citing the CDC Committee Report.2
#36, p. 2 & #40, p. 9.)
statement
concerning
(Anderson Dec.
The Committee Report also includes a
petitioner’s
right
to
appeal
the
CDC’s
decision. Thus, it appears that the procedures followed by the CDC
meet the minimum requirements set forth in Wolff.
2
I note that in similar cases that have come before me,
inmates have been provided a letter explaining the CDC decision
and the inmate’s appeal rights, and I do not see such a letter in
this file. Also, the date petitioner received a copy of the
incident report is not clear from the Incident Report. See
Stevens v. Thomas, 2011 WL 3563131 (D. Or. Aug. 10, 2011).
8 - OPINION AND ORDER
Concerning the Incident Report for a Code 112 violation for
Use of Narcotics, the record also demonstrates that petitioner
received the minimum procedural protections afforded under Wolff.
RRC staff generated the Incident Report on January 14, 2011, after
receiving a report from Redwood Toxicology Laboratory indicating
that petitioner’s urine sample from 2:04 a.m. on January 10 was
positive for methamphetamine.
Petitioner was given a copy of that
incident report on January 18, 2011.
At that time, petitioner
waived his right to 24 hours advance notice of a hearing, as
evidenced by his signed waiver. (Anderson Dec. #40, Amended Att.2,
p. 6.) Petitioner also waived the right to a staff representative,
and did not want to call any witnesses.
(Id. at p. 7-8.)
At the
hearing, petitioner indicated that he may have had a false positive
because he was taking “psuedfed” and having anxiety attacks.
at
p.
4.)
The
hearings
officer
determined
that
(Id.
petitioner
committed the Code 112 violation based on the toxicology report
confirming the presence of methamphetamine. Following the hearing,
petitioner was provided a with a copy of the CDC Committee Report,
which contains a written statement detailing the evidence relied
upon and the reason for the decision.
(Anderson Dec. # 36, p. 2;
Second Cortez Dec. #40, Amended Att. 2, p. 8-9.) The CDC Committee
Report contains a statement of the inmate’s right to appeal the
CDC’s decision.
(Id.)
9 - OPINION AND ORDER
Thus, it appears that the procedures
followed by the CDC meet the minimum requirements set forth in
Wolff.
The CDC’s determinations concerning the Escape and Use of
Narcotics incident reports were reviewed by DHO McWilliams on
January 21, 2011.
DHO McWilliams imposed sanctions of a transfer
to FCI Sheridan and 27 days lost GCT for each incident.
(Dec. fo
Randy McWilliams #37, ¶ 3 & Att. 1.)
The May 13, 2011 hearings also comport with the protections
required
by
Wolff.
Concerning
the
Escape
incident
report,
petitioner was provided with a written copy of the Escape charge
and notice of the hearing on May 11, 2011. (Second Cortez Dec.
#39-1, Att. 1, p. 1, 5.)
On May 12, 2011, petitioner indicated
that he did not wish to have a staff representative, and did not
wish to call any witnesses.
(Id. at 19.)
On May 13, 2011, a
hearing was conducted by a Disciplinary Hearing Officer who was not
involved in the incident or its investigation.
provided
the
opportunity
hearing, but declined.
to
request
staff
Petitioner was
assistance
at
the
Petitioner was provided the opportunity to
present witnesses and documentary evidence, but declined.
At the hearing, petitioner denied the charge, stating that he
was outside in the parking lot talking to his ex-wife and was not
planning to escape.
Petitioner stated that he had been washing
clothes earlier and threw them on his bed.
(Id.)
The hearing
officer concluded that petitioner committed the act as charged,
10 - OPINION AND ORDER
relying on the RRC staff member’s statement that the bed appeared
“stuffed,” that petitioner initially said he met his wife down the
road, and that petitioner did not have permission to leave the RRC.
The hearing officer also relied on a form entitled FBOP-Pass Down,
in which the RRC staff member wrote that petitioner was in bed at
9 p.m., “and then again at 10 p.m., but it looked like he pulled
the covers over his head at 11 p.m. head count again this time I
pulled the covers off and found nothing but clothes.” (Id. at 3,
16.)
On May 16, 2011, petitioner was provided with a written copy
of the hearing officer’s findings.
Also on May 13, 2011, petitioner was provided with a second
hearing on the Use of Narcotics Code 112 incident report.
Att. 2, p. 2.)
(Id. at
Petitioner was provided with an advance written
copy of the incident report and notice of the hearing on May 12,
2011.
During the hearing, petitioner was provided the opportunity
for staff assistance, but declined.
Petitioner was provided the
opportunity to present witnesses or documentary evidence, but also
declined.
The hearing was conducted by an officer not involved in
the incident or its investigation.
Based on the laboratory
results, the hearing officer determined that petitioner committed
the offense.
Petitioner was provided with a written copy of the
decision detailing the reasons and evidence on May 14, 2011.
I reject petitioner’s argument that because the May 13, 2011
hearing occurred after he had been transferred to FCI Sheridan, it
11 - OPINION AND ORDER
is constitutionally insufficient.
Petitioner submits that because
his conditions of confinement at FCI Sheridan are constrained, he
has suffered a substantial and significant deprivation of liberty.
Petitioner suggests that his return to FCI Sheridan warrants a predeprivation hearing, or a more timely post-deprivation hearing.
I
disagree.
I rejected a similar argument in Stevens v. Thomas, 2011 WL
3563131 (D. Or. Aug. 10, 2011).
In that case, the petitioner
asserted that he was entitled to a hearing prior to his transfer
from an RRC to the county jail.
every
change
in
the
As I reasoned in Stevens, “[n]ot
conditions
of
confinement
constitutes
a
deprivation of liberty, even if there is a substantially adverse
impact on the prisoner.”
Id. at *5; see also Meachum v. Fano, 427
U.S. 215, 224-25 (1976).
To be sure, a constitutionally protected
liberty interest arises only if a restraint on a prisoner’s freedom
imposes an “atypical and significant hardship on the inmate in
relation to the ordinary incident of prison life.”
Sandin v.
Conner, 515 U.S. 472, 484-86 (1995).
As in Stevens, I conclude that because petitioner does not
have a protected liberty or property interest in an RRC placement,
he was not entitled to due process procedural protections prior to
his transfer from the Port of Hope RRC to Canyon County Jail, and
subsequent transfer to FCI Sheridan.
12 - OPINION AND ORDER
Petitioner also complains that because there was lengthy delay
between his return to FCI Sheridan in January and the May 13
hearing on the two incident reports, he has been denied due
process.
Petitioner appears to argue that because he did not pose
a security threat, a four month delay violates due process. Again,
I disagree.
First, petitioner’s briefing overlooks that he received CDC
hearings in January, with review by a DHO because he was in an RRC
at the time of the incidents in question.
As discussed above,
those
process
hearings
satisfied
the
minimal
due
protections
afforded under Wolff.
Second, petitioner also overlooks the fact that he did not
administratively exhaust the January disciplinary hearings.
record
before
me
demonstrates
that
it
was
not
until
The
after
petitioner filed his habeas petition in this court on March 22,
2011, that the BOP reviewed petitioner’s January hearings. At that
point, petitioner’s two Incident Reports were investigated anew,
and petitioner was afforded an additional hearings in May. And, as
discussed above, petitioner’s May hearings clearly comported with
Wolff.
Petitioner
cannot
simultaneously
fail
to
exhaust
his
administrative remedies, and complain about the alleged delay prior
to the May hearings.
of
investigations
I agree with petitioner that the timeliness
and
13 - OPINION AND ORDER
hearings
is
especially
important
where
inmates are nearing the end of their sentences.
However, on the
record before me, petitioner has not provided any information to
suggest that the BOP even was aware of petitioner’s dissatisfaction
with the outcome of the January hearing due to his failure to
pursue the administrative remedies at his disposal.
Accordingly, because petitioner was provided with all the due
process protections to which he is entitled under Wolff, he has
failed to demonstrate that he is in custody in violation of the
Constitution or laws of the United States, and habeas relief is not
warranted.
III. Petitioner Has Not Established a Violation of 28 C.F.R. §
541.15(b) Warranting Relief Under § 2241.
At the time of petitioner’s incident reports, the controlling
federal regulations provided that an initial prison disciplinary
hearing is “ordinarily held within three work days from the time
staff become aware of the inmate’s involvement in the incident.”
28 C.F.R. § 541.15(b).
permitted
for
“good
And extension of this time frame is
cause
shown
by
the
inmate
or
staff
and
Id. at § 541.15(k).
documented in the record of the hearing.”
Here, petitioner contends that the four month delay between the
January
9,
2011
unreasonable,
incident
lacked
good
and
the
cause,
May
and
13,
violates
Petitioner’s argument fails for two reasons.
14 - OPINION AND ORDER
2011
hearing
due
was
process.
First, petitioner’s argument does not raise a cognizable
federal claim under § 2241 in the circumstances of this case.
Constitution
only
requires
that
inmates
be
afforded
The
those
protections mandated by Wolff at a prison disciplinary hearing; it
does not require that prison officials comply with their own more
generous procedures or time limitations. See Walker v. Sumner, 14
F.3d 1415, 1420 (9th Cir. 1994), abrogated on other grounds by
Sandin v. Conner, 515 U.S. 472 (1995)(prison regulations are
designed to guide correctional officials, not confer rights on
inmates);
Bostic
v.
Carlson,
884
F.2d
1267,
1270
(9th
Cir.
1989)(failure to meet own guideline requiring hearing within eight
days of charge alone did not rise to due process violation).
As discussed above, a hearing was conducted in January, and
again in May, which comported with Wolff.
There is nothing in
Wolff which entitles petitioner to second round of hearings.
Therefore, even if petitioner could establish that the BOP violated
§ 541.15, such a violation alone would not establish a due process
violation.3
See Strohmetz v. Rios, 2011 WL 4889185, *3 (E.D. Cal.
3
I note that Petitioner has no liberty interest in a
sentence reduction under 18 U.S.C. § 3621(e). See McLean v.
Crabtree, 173 F.3d 1176, 1184-85 (9th Cir. 1999), cert. denied,
528 U.s. 1086 (2000). Therefore, the BOP did not violate due
process when it denied petitioner a one-year sentence reduction
as a sanction based on the Code 112 violation, Use of Narcotics
Incident Report. Furthermore, this court has no jurisdiction to
review petitioner’s individual eligibility decision by the BOP
under § 3621(e). Reeb v. Thomas, 636 F.3d 1224, 1228 (9th Cir.
2011).
15 - OPINION AND ORDER
Oct. 13, 2011); see also Ortiz v. Holt, 390 Fed. Appx. 150, 152 (3d
Cir. 2010)(per curiam)(finding no due process violation under §
541.15 because Wolff does not set forth a specific time frame);
Rodriguez v. Lindsay, 2011 WL 2601448, *3-4 (E.D.N.Y June 30,
2011).
Second,
petitioner
did
not
exhaust
his
administrative
remedies, so it is difficult to find any delay between the January
hearings and May hearings unreasonable.
For that reason, I find
petitioner’s reliance on Lao v. Schult, 2010 WL 743757 (ND.N.Y.
Feb. 25, 2010), misplaced.
In Lao, the court concluded that the
inmate’s administrative appeal was timely, and that the prison
officials failed to comport with § 541.15 when it failed to
investigate an incident in a timely manner.
Id. at *7.
Unlike
Lao, petitioner received an initial round of hearings in a timely
manner, and petitioner did not pursue his administrative remedies.
Thus, based on the record before me, I do not find that petitioner
has established a regulatory violation entitling him to relief
under § 2241.
Accordingly, because petitioner has not established that the
BOP denied him those rights guaranteed under Wolff, habeas relief
under § 2241 is not warranted.
IV.
Petitioner’s Sanctions are Supported by Some Evidence.
Petitioner contends that the Escape charge is not supported by
“some evidence” and therefore, violates substantive due process.
16 - OPINION AND ORDER
Petitioner argues that to find him guilty of the disciplinary
violation of Escape, the DHO must find an element of “intent,”
similar to the crime of escape. Petitioner submits that because he
did not take his belongings, and he returned to the RRC on his own
after only a brief absence, there is not “some evidence” to support
the escape charge.
Petitioner submits that the evidence, at best,
supports other lesser charges, namely Code 320 (failure to stand
count), Code 321 (interfering with the taking of count) or Code 316
(being in an unauthorized area).
The standard for reviewing prison disciplinary findings is set
forth in Hill and is “minimally stringent.”
F.2d 703, 705 (9th Cir. 1987).
Cato v. Rushen, 824
This court is not to re-weigh the
evidence or make its own assessment of the credibility of the
witnesses.
there
is
Id. at 455.
any
evidence
Rather, “the relevant question is whether
in
the
record
that
conclusion reached by the disciplinary board.”
(emphasis added).
could
support
the
472 U.S. at 455-56
If there is any reliable evidence in the record
to support the disciplinary findings, the “some evidence” standard
is satisfied, and the decision must be upheld. Powell v. Gomez, 33
F.3d 39, 40 (9th Cir. 1994); Toussaint v. McCarthy, 801 F.2d 1080,
1105 (9th Cir. 1986), cert. denied, U.S. 1069 (1987); Hill, 472
U.S. at 455-56; see Dameron v. Grondolsky, 2010 WL 624873, *5 (D.
N.J. Feb. 18, 2010)(finding some evidence to support escape charge
when prisoner found off the property).
17 - OPINION AND ORDER
Contrary to petitioner’s suggestion, I find petitioner’s
“intent” immaterial.
The Code 200 violation is described in 28
C.F.R. § 541.13 (2010), as a “high category” offense.
petitioner’s
determination
contention
of
his
that
mental
an
escape
state
is
violation
not
However,
requires
supported
regulation itself or the case law cited by petitioner.
by
a
the
I am not
persuaded by the rationale in Emmert v. Martin, 2006 WL 3354915
(N.D. Ind. Nov. 16, 2006). In that case, an inmate was challenging
his disciplinary action for escape.
There, the inmate was housed
in a work release center, and reported for work in the morning.
But, the inmate was discovered to have left work early when the
work release officer contacted the place of employment at 5:40 p.m.
The officer then presumed the worst, and prepared a conduct report
for Escape.
Later that night, at 10:50 p.m., the inmate was
discovered leaning against the outside of the building.
The
disciplinary hearing board found the inmate guilty of escape, and
sanctioned the inmate 180 days lost good time credits.
In challenging his sanctions, the inmate contended that the
evidence only supported the lesser offense of failing to return
within the prescribed time limits.
Disagreeing, the Emmert court
noted that the under Hill, the court was only to examine whether
the some evidence to support the disciplinary charges.
The court
found that while the inmate was “ultimately found leaning against
the wall of the building, his absence is some evidence of escape.”
18 - OPINION AND ORDER
In passing, the Emmert court noted that the inmate could argue that
he did not intend to escape, and that he only intended to return
late, but “it is not for this court to re-weigh the evidence and
make such credibility determinations.”
Id. at *2.
Petitioner’s argument here is limited by the same constraints
noted in Emmert–that is, whether the evidence also may support a
different sanction is immaterial to the task before me.
My only
charge is to evaluate whether there is some evidence in the record
to support the disciplinary determination.
I conclude that there
is.
As discussed above, RRC staff discovered that petitioner’s bed
was stuffed with clothes to appear as though petitioner was
sleeping during an accountability check.
And, an immediate search
of the premises did not find petitioner.
I conclude that there is
some evidence in the record to support the disciplinary action on
the
Escape
charge.
Hill,
472
U.S.
at
455-56.
Therefore,
petitioner is not entitled to habeas relief.
Petitioner’s alternative request for an evidentiary hearing is
denied.
////
////
////
////
////
19 - OPINION AND ORDER
CONCLUSION
Based on the foregoing, petitioner’s amended petition for writ
of habeas corpus (#25) is DENIED, and this proceeding is DISMISSED,
with prejudice.
IT IS SO ORDERED.
DATED this __5th__ day of JANUARY, 2012.
/s/ Malcolm F. Marsh
Malcolm F. Marsh
United States District Judge
20 - OPINION AND ORDER
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