Topete v. Feather
Filing
17
OPINION AND ORDER. This proceeding is DISMISSED, without prejudice, as MOOT. IT IS SO ORDERED. Signed on 12/15/2014 by Judge Malcolm F. Marsh. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JOSE ELIODORO TOPETE,
Petitioner,
v.
MARION FEATHER, Warden,
Respondent.
Jose Elidoro Topete
Fed. Reg. No. 02020-112
Federal Correctional Institution
P.O. Box 5000
Sheridan, Oregon 97378-5000
Petitioner,
Pro se
S. Amanda Marshall
United States Attorney
District of Oregon
Natalie K. Wight
Assistant U.S. Attorney
1000 SW Third Avenue, Suite 600
Portland, Oregon 97204-2902
Attorneys for Respondent
MARSH, Judge
1 - OPINION AND ORDER
3:14-cv-00677-MA
OPINION AND ORDER
On or about April
13,
2014,
petitioner filed this habeas
corpus proceeding pursuant to 28 U.S.C. §2241.
Petitioner contends
that he was denied due process at a disciplinary hearing held on
November 13, 2013, at Taft Correctional Institution (CI Taft)
contracted
correctional
corporation) .
institution
operated
For the reasons set forth below,
by
a
(a
private
the petition is
dismissed as moot.
BACKGROUND
While incarcerated at CI Taft,
petitioner was charged with
attempting to introduce two cell phones (hidden in the insoles of
a pair of tennis shoes)
mailed in a
package
into the ins ti tut ion.
addressed to
Inmate
The shoes were
Emiliano
Jose-Ramirez
(under the guise that they were his release clothes), and bearing
petitioner's son's return address.
Petitioner was charged with
attempted possession, manufacture, or introduction of a hazardous
tool.
CI Taft Special Investigative Supervisor Lieutenant K. Sy
issued
the
incident
report
and
conducted
an
investigation.
Declaration of Daniel Cortez, Exh. 2 at 3.
At
the
November
13,
2013,
disciplinary
hearing,
CI
Taft
Hearings Officer C. Logan found petitioner guilty of the alleged
rule
violation.
Id.
at
'll
3
&
Exh.
2
at
3.
Pe ti ti oner was
sanctioned with the loss of 41 days good time credits,
3 months
disciplinary segregation, and 1 year loss of telephone privileges.
Id. at 'll 4 & Exh.
2 at 4.
2 - OPINION AND ORDER
On June 13, 2013, Bureau of Prison (BOP) Disciplinary Hearings
Officer
( DHO)
Daniel
Cortez,
alleged rule violation.
Id.
Jr.
conducted a
at 'JI 'JI 1
&
4
&
rehearing of
Exh . 3 .
the
DHO Cortez
found petitioner guilty of the rule violation and reimposed the
same
sanctions.
Id.
The
evidence
relied upon
by
DHO Cortez
included:
The DHO considered the photo sheets July 8, 2013, which
depict the package received addressed to inmate Emiliano
Jose-Ramirez
[from] (the same address as
Topete's son). These photos also depict the tennis shoes
contained in the package received as well as the cell
phones and charging materials secreted in the inside of
the tennis shoes.
The DHO considered the Authorization to Receive Package
or Property dated June 12, 2013, for inmate Emilano JoseRamirez which contains the address of inmate Topete's son
as the return address.
The DHO considered the inmate Telephone Call Monitoring
Reports which covered a span of several months .
During these calls inmate Topete requested the address of
his son
Additionally inmate Topete makes
statements such as instructing. his son to buy some tennis
shoes and "get them ready."
* * * * *
The DHO considered the statement inmate Topete provided
during the DHO hearing: "Ramirez told the SIS that I was
going to send him clothes, but I didn't tell him that.
I said I was guilty because I didn't want the FBI going
after my son. I am not that dumb to use the phones that
are recorded to talk with my son to do something like
this. I never worked with anyone to get any cell phones.
I don't know why .they used my sons address to send that
stuff in.
I didn't know my son was living in Azusa, he
was just moving from living with my wife."
Id.,
Exh. 3 at 3-4.
Ill
3 - OPINION AND ORDER
DISCUSSION
Petitioner alleges that the November 13,
2013, disciplinary
hearing at CI Taft violated the Due Process Clause of the U.S.
Constitution and applicable regulations because it was conducted by
a hearings officer who is not an employee of the BOP or Federal
Prison Industries.
Habeas Petition (#1) at 4.
Respondent moves
the court to dismiss this proceeding on the basis that it is moot.
Respondent contends that the June 13, 2014, rehearing before OHO
Cortez moots petitioner's challenge to the November hearing.
I
agree.
This court's Article III jurisdiction extends only to actual
cases or controversies.
U.S.
67,
70
Iron Arrow Honor Soc'y. v.
A habeas
(1983).
petitioner's claim for
petition
becomes
relief can no longer be
favorable decision of the court.
1, 7 (1998); Burnett v. Lampert,
Heckler,
moot
464
when
a
redressed by a
Id.; Spencer v. Kemna, 523 U.S.
432 F. 3d 996,
999-1000 (9'h Cir.
2005)
In the instant proceeding, petitioner challenges the legality
of the November 13, 2013,
subsequent
June
13,
2014,
Petition (#1) at 4-4a.
November 13,
2013,
hearing conducted at CI Taft,
hearing conducted at
FCI
not the
Sheridan.
Because the findings and sanctions from the
have been superseded by the
June
13,
2014,
hearing decision rendered by a BOP certified DHO,
there is no
relief that can be provided by a favorable decision.
Accordingly,
4 - OPINION AND ORDER
this action is moot.
See e.g. Bolanos-Renteria v. Benov, 2014 WL
5817532, *2 (E.D. Cal. Nov. 7, 2014); Arancibia v. Benov, 2014 WL
4986697, *2 (E.D. Cal. Oct. 6, 2014) . 1
Petitioner's argument that the June, 2014, rehearing violated
28 C.F.R.
§
541.5 2 does not compel a different conclusion because
petitioner's habeas petition challenges only the November, 2013,
hearing.
See Johnson v.
Bowers,
2014 WL 6837240,
*2
(C. D.
Cal.
Dec. 3, 2014).
Petitioner may challenge the legality of the June
hearing
separate
in
a
habeas
corpus
proceeding,
exhaustion of his available administrative remedies.
v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986)
required
to
exhaust
administrative
after
the
See Martinez
(federal prisoners are
remedies
prior
to
bringing
habeas petition).
Even if I assume that procedural irregularities prior to the
June rehearing should inform this court's mootness determination,
petitioner has made no showing that participation by non-BOP staff
in the early stages of the disciplinary process somehow tainted OHO
Cortez's decision.
In this regard, it is worthy of note that OHO
1
This issue has been litigated repeatedly in the California
District Courts.
t find the reasoning in the California
decisions, including those cited above, to be persuasive.
2
Petitioner relies upon 28 C.F.R. § 541.5(a) & (b) (and
former § 541.10 (b) (1) (2010)), providing that a Bureau of Prisons
"staff member" will issue the incident report and conduct the
investigation.
5 - OPINION AND ORDER
Cortez's decision is supported by "some evidence." 3
v.
Benov,
518
(unpublished)
Fed.
Appx.
555,
*1
(9th
(finding violation of 28
because "some evidence" supported OHO' s
Cir.
C. F. R.
See Velasquez
May
§
17,
2013)
541. 2 harmless
decision) .
OHO Cortez
properly relied upon (1) photographs of the tennis shoes, the cell
phones, and the package bearing petitioner's son's return address;
(2) Inmate Emilano Jose-Ramirez signed authorization to receive a
package containing petitioner's son's address; and (3) monitoring
reports of telephone calls between petitioner and his son.
Moreover, petitioner has made no showing that he was denied
any of the procedural protections under Wolff v.
McDonnell,
418
U.S. 539, 563-64 (1974), or that the delay caused by the rehearing
was in bad faith or resulted in prejudice.
Cf.
Poynor v.
U.S.
Parole Comm., 878 F.2d 275, 276-77 (9th Cir. 1989)
(failure to hold
dispositional
time
statute not
faith);
see
review
grounds
also
of
parole
detainer within
for
habeas
relief absent prejudice or bad
Bolanos-Renteria,
2014
WL
limits
5817532
of
*3. 4
3
See Superintendent v. Hill, 472 U.S. 445, 455-56 (1985)
(due process requires that revocation of good time credits be
supported by "some evidence").
4
Although petitioner states that due to the delay he could
not call witnesses or "present staff to argue mitigation" (Pet.'s
Reply at 2), petitioner fails to identify any witnesses he sought
to call or how their testimony would have affected the outcome of
the proceeding.
The record reflects that petitioner waived his
right to call witnesses and declined staff representation at the
rehearing.
See Cortez Dec., Exh. 3 at 1.
6 - OPINION AND ORDER
Accordingly,
petitioner
has
made
no
showing
that
alters
my
conclusion that this proceeding is moot.
CONCLUSION
Based on the foregoing, this proceeding is DISMISSED, without
prejudice, as MOOT.
IT IS SO ORDERED.
DATED this~ day of December, 2014.
Malcolm F. Marsh
United States District Judge
7 - OPINION AND ORDER
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