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)

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