Smith v. Ives

Filing 9

OPINION AND ORDER: The Petition for Writ of Habeas Corpus 1 is granted. If the BOP does not hold second disciplinary hearing within 60 days of the date of this Order which cures the due process violation identified above, respondent shall ex punge petitioner's conviction for the Code lllA charge, restore his 41 days of good-time credit, and relieve him from any other sanctions that may stem from that conviction. (See 12 page opinion for more information) Signed on 7/31/17 by Judge Michael H. Simon. (Mailed copy to petitioner) (dsg)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON RAYMOND SMITH, Case No. 3:17-cv-00076-SI Petitioner, OPINION AND ORDER v. RICHARD IVES, Respondent. Raymond Smith, 20827-112 FCI-Sheridan P.O. Box 5000 Sheridan, Oregon 97378 Petitioner, Pro Se Billy J. Williams United States Attorney Jared D. Hager, Assistant United States Attorney 1000 SW Third Avenue, Suite 600 Portland, OR 97204-2902 Attorneys for Respondent 1 - OPINION AND ORDER SIMON, District Judge. Petitioner brings U.S.C. 2241 § this challenging disciplinary hearing. habeas the corpus case pursuant to legality of his June 12, 28 2015 For the reasons that follow, the Petition for Writ of Habeas Corpus (#1) is granted. BACKGROUND Petitioner is currently serving a 223-month sentence within the Bureau of Prisons Attempt to Possess Substance. In suspected that narcotics into the ("BOP") with Intent early to Distribute a months of 2015, might petitioner the for Conspiracy to Distribute and be attempting facility. As a Controlled prison result, officials to they smuggle began to actively monitor his telephone calls and email correspondence. On April 14, 2015, BOP officials completed an investigation into petitioner's activities, finding that he was attempting to have his daughter send him a synthetic cannabis product known as "Spice" or "K2" by saturating letters with the substance. Consequently, authorities issued an incident report that day him violation Attempted charging Conduct Which with Disrupts a or of Code 199A Interferes with the Security same or Orderly Running of the Institution (most like code section lllA - Attempting to Introduce Drugs) . pp. 2-3. 2 - OPINION AND ORDER Declaration of Jill Rosiles, The BOP petitioner p. 2. delivered on April The case, report, asked and specificity so as 12, incident detail. it be was report Declaration, ("OHO") to to Att. 2, assigned to dissatisfied rewritten with provide Rosiles Declaration, pp. 3-4. the BOP provided the petitioner charges the more against As a result, with him in a second greater Rosiles Declaration, Att. 2, p. 1. 2015, of Petitioner requested witnesses, but with the petitioner appeared at his disciplinary assistance OHO and petitioner's witnesses incident Officer Rosiles, that the Rosiles Hearings outlining On June 12, hearing of to allow petitioner a better opportunity to 2015, report copy 2015. Jill prepare a defense. May 15, Disciplinary petitioner's on a had any staff a none appeared because staff representative did relevant information representative. to the not believe the offer. Rosiles Declaration, Att. 3, p. 1. The evidence against petitioner consisted of a variety of his communications with his daughter. The exchanges were via email and telephone, and appeared deliberately cryptic in nature as one example from the DHO's report reveals: On February 17, 2015, you emailed your daughter and asked "What happened with the project?" She responded and stated "I told you that me and [J] went and it wasn't clear, it was color and it was really expensive for 3 - OPINION AND ORDER a little small one. So he didn't think that it was worth it based off of what he seen. He told me I wouldn't be able to use that. 11 On February 21, 2015, you responded to your daughter and stated 11 I love you but business is separate from everything else! ! If that thing was right, I could have got from $1500 to two racks for it so all the other shit you talking about don't mean nothing! ! 11 You sent her a second response on February 21, 2015, [] stating 11 I am going to have [Ml call you and get that information from you. You are very busy. Just get that letter done! You don't see what I am trying to do; I get tired of asking my mother for money to do things and that is why I need me a female helping me! I think I can get [M] to help me ... you are too busy moo! You are doing good and you don't need to get exposed to fast money ... you're a good girl like your mom!" Your daughter responded stating "I don't want you to find anyone else because I want to do this! And who else could you trust other than me you' re telling me that I'm wasting time but it hasn't even been a month! And the reason why it has been taking so long is because I can't find the other thing! Even [RY] said she couldn't find it neither. But dad, I promise before I go back to work on Thursday I'm gonna have two of them ready. You just have to give me the information and everything is gonna be ready to go. The Thing That [RD] likes! So yeah, don't worry, I'm gonna get these and see if [ J] was wrong She also stated \\But like I said about it. ... I'm gonna have two of them done now that I brought up that stuff that [RD] likes might work. I'm gonna let you know how much that brand cost a pop and if it's ridiculous, like $50 for each, then that's up to you if you If 4 - OPINION AND ORDER want to keep using that? Otherwise we gotta get the other thing but I just don't know where to find it.'' Rosiles Declaration, p. 3. Petitioner initially indicated trying to help his daughter with a claimed that he was management business. attempting Id at 4. to to BOP personnel science project, help her start he was and later a credit He also asserted that he did not recall what he was talking about when he told his daughter he could have received "$1500 to two racks" for the product. Instead, Id. he argued that his conduct did not match the elements of the charged offense, and that the BOP used only portions of his conversations that lacked proper context. He claims that although he adamantly requested review of the entire transcripts of his conversations to establish his innocence, the OHO denied his request. The OHO found petitioner guilty of the charged based upon the following: The written statement of SIS Technician Ramirez, dated May 12, 2015, stating an investigation was completed on April 14, 2015, regarding the allegation you attempted to introduce drugs into the institution. On February 15, Lieutenant Meredith monitored a telephone call you placed to a female in which you stated "it has to be dark, and it needs to be in liquid form. ["] You send and received numerous emails discussing the introduction of liquid K2 which were 5 - OPINION AND ORDER offense referenced specifically in Section 11 of the incident report and will be referenced in detail later in this report. On March 7, 2015, you placed a call to your daughter during which she stated to you "I just feel like you' re doing good right now, like you got your certificate and stuff, like you' re in a good position right now, and I don't think you should jeopardize that." You responded to her stating "I know what I'm doing, see ya'll not looking at the situation like I'm looking at it. I need all I can get right now. Who is going to take care of me when I get out?" Additionally, the SIS department had been made aware of several methods in which inmates have arranged for liquid K2 to be introduced into institutions and was specifically discussed in Section 11. Id at 2. The DHO sanctioned petitioner with the loss of 41 days of good-time credit, the loss of 60 days commissary in disciplinary segregation, privileges, visiting and privileges, telephone privileges, and email privileges for one year. Petitioner asserts that the DHO's right to due process of law where: was not conducted within .a segregated housing for an violates his ( 1) his disciplinary hearing reasonable issuance of the first incident report; in decision time the the BOP (2) excessive notification of the charges against him; following detain~d him period without any ( 3) the DHO refused to allow him to review the transcripts of his conversations; and ( 4) prison officials failed to introduce sufficient evidence to find him culpable of the charged offense. 6 - OPINION AND ORDER DISCUSSION An inmate subject to a prison disciplinary entitled to certain procedural protections: of the charges deli very (3) a of him; written the written (2) against notice statement by at and a ( 1) least his hearing written notice 24 hours disciplinary factfinder as is to the between hearing; evidence relied upon and the reasons for disciplinary action; and (4) an opportunity to call witnesses and present documentary evidence in his defense when allowing him to do so "will not be unduly hazardous to institutional safety or correctional goals.'' 418 U.S. 539, 563-66 (1974). v. McDonnell, Petitioner his first contends that prison officials right to due process when they did not: timely disciplinary hearing; segregation hearing. Wolff 84 days prior and to (2) his ( 1) afford him a placed him in disciplinary June 12, 2015 disciplinary Wolff provides only that an inmate must report hearing. It does not otherwise guarantee a particular time that disciplinary experienced issuance of a least 24 hearing must delay his first of hours take before incident report disciplinary Although place. approximately his receive his incident a at violated 60 and days the petitioner between the date his of disciplinary hearing, this delay was for his own benefit as ftthe incident report was rewritten to provide more specific detail of 7 - OPINION AND ORDER the incident to aid [petitioner] Rosiles Declaration, Att. 3, in preparation of a defense." p. 2. Such a delay does not run afoul of petitioner's due process rights. Wolff also segregated does not housing investigation, forbid the placement of an inmate in during to prior the issuance the course of of disciplinary a an incident report. Although placement in disciplinary segregation may implicate an inmate's liberty restraints interest, impose it "atypical will and only do so significant when physical hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). Eight-four days is not sufficient to give rise to a liberty interest. v. Coughlin, disciplinary 81 F.3d housing liberty interest); Cir. 2002) 313 not Smith (2nd Cir. sufficient v. 1996) to Mensinger, (eleven give 293 See Frazier months inmate F.3d in protected 641, 654 (3rd (same as to seven months). More troubling is petitioner's claim that the OHO refused to permit him access to evidence to mount a proper defense. He asserts that the OHO, as well as the BOP's investigators, relied only upon excerpts of his telephone calls and emails from the prison to find him guilty of the charged offense. that he requested the full transcripts of his He claims email and telephone conversations to corroborate his version of events and 8 - OPINION AND ORDER demonstrate that the BOP had taken the excerpts out of context. He concludes that the DHO's refusal to allow him to access these records deprived him of due process. It is not clear whether the BOP retained full transcripts of petitioner's telephone conversations and copies of his email correspondence. It is, however, evident from the record that BOP investigators were able to quote petitioner's conversations and correspondence confirm these Thus, verbatim, and representations. the OHO was Rosiles presumably Declaration, able At ts. to 1-3. in the absence of any contrary evidence from respondent, the court is left to assume that the records petitioner sought did, in fact, exist in the days leading up to his disciplinary hearing. Where BOP investigative personnel had access had access to petitioner's telephone petitioner's information transcripts and emails, staff representative also was where respondent represents it appears also privy to that petitioner that "was provided a staff representative who had an opportunity to review all available inclusive conclude evidence." 1 nature that of this petitioner's Response statement, staff (#6), the p. 5. court representative Given is left to had access to 1 Respondent does not attempt to establish the parameters of term "all available evidence" in the context of petitioner's case. 9 - OPINION AND ORDER the the full transcripts of petitioner's conversations and email correspondence that the BOP monitored during the investigative period. However, despite this access, it is apparent from petitioner's claim that the staff representative did not share the contents of this evidence with him. Respondent provides no reason why this did not occur. Not only petitioner did the staff access to the conversations, but there representative attempted representative is to, of contents no or even to allow petitioner's indication was refuse that capable the of own staff putting petitioner's conversations into context so as to help petitioner mount an effective defense. how he the DHO Indeed, it is difficult to imagine could have cogently presented petitioner's without reviewing the totality of the argument evidence to with petitioner. Where petitioner's staff representative did not share the full communication records with him, obtain them through the DHO. his only recourse was Petitioner asserts that to he adamantly requested the ability to review his conversations in their entirety, but the DHO refused. Respondent does not assert otherwise. As noted above, the right to an inmate's right to due process includes present documentary 10 - OPINION AND ORDER evidence in his defense assuming it "will not be unduly safety or correctional goals." hazardous Wolff, to institutional 418 U.S. at 566. The Government provides no explanation as to why the OHO declined to allow petitioner access. the review the documents to which he sought Nothing in the DHO's report mentions any rationale for exclusion these to of records evidence from the constituted against OHO requested evidence. 2 petitioner's the petitioner, as to why entirety and absent petitioner was present them in his own defense, of a Given the foundational permissible not able that to reason view and the court is left to conclude that the disciplinary hearing violated petitioner's right to due process. Generally, establish a due corpus habeas a petitioner process violation must who show that prejudice as a result of the deprivation he alleges. 507 Abrahamson, U.S. 619, petitioner to make such a 637 (1993). showing where: It is ( 1) seeks he to suffered Brecht v. impossible for prison officials refuse to allow him access to the records he claims could have exonerated him; documents to and the ( 2) court the Government has not provided these for its review. Accordingly, where petitioner has shown that he was wrongfully denied access to his 2 There could be a perfectly valid explanation supporting the denial of the telephonic and email records that would satisfy due process, but the Government has not provided any such explanation. 11 - OPINION AND ORDER transcripts so as to mount a defense with documentary evidence, and where prejudice, that the denial court precludes concludes him that from demonstrating petitioner has made a sufficient showing to warrant a new disciplinary hearing. Because the petitioner's June evidence 12, was 2015 not fully disciplinary developed hearing, the at court declines to address whether there was "some evidence" to support petitioner's conviction under Superintendent v. 472 Hill, U.S. 445 (1985). CONCLUSION The Petition for Writ of Habeas Corpus (#1) is granted. If the BOP does not hold second disciplinary hearing within 60 days of violation the date of this identified Order above, which cures respondent the due shall process expunge petitioner's conviction for the Code lllA charge, restore his 41 days of good-time credit, and relieve him from any sanctions that may stem from that conviction. IT IS so ORDERE_!1. ' DATED this ~ ·.>C 3/ day I of~' ~017_' /7 ~/~ Miha81 H. simon United States District Judge 12 - OPINION AND ORDER other

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