Michael Lawrence Shine v. Norwood, No. 2:2008cv05462 - Document 17 (C.D. Cal. 2009)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. §2241 by Magistrate Judge Victor B. Kenton, re Petition for Writ of Habeas Corpus (2241) 1 . Based on the foregoing conclusions, the Court finds no merit in the Petition, and orders that it be dismissed with prejudice. (rp)
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Michael Lawrence Shine v. Norwood Doc. 17 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 MICHAEL LAWRENCE SHINE, 12 13 14 Petitioner, v. NORWOOD, WARDEN, 15 Respondent. 16 17 ) ) ) ) ) ) ) ) ) ) No. CV 08-05462-VBK ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. §2241 INTRODUCTION 18 Petitioner Michael Lawrence Shine (“Petitioner”), proceeding pro 19 se, filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. 20 §2241 by a Person in Federal Custody (“Petition”). 21 Norwood, Warden (“Respondent”) filed a Response, and Petitioner filed a 22 Reply Brief. Respondent, Joseph 23 Petitioner asserts that his constitutional rights were violated 24 during a Disciplinary Hearing Officer (“DHO”) procedure concerning an 25 incident report involving the introduction of illicit drugs into the 26 prison facility. 27 absolutely no evidence showing he was involved in any manner in the 28 alleged incident, and that the DHO failed to make the requisite findings Petitioner contends in his first claim that there was Dockets.Justia.com 1 based on conflicting evidence. (Petition at 3.) 2 Petitioner asserts that he had no involvement in any plan to bring 3 illicit drugs into the institution, and that he was not provided a 4 hearing within 72 hours as required by Federal Bureau of Prisons (“BOP”) 5 policy. (Id.) 6 7 8 9 10 In his second ground, Petitioner has exhausted his available administrative remedies (see Klein Declaration, Exhibits [“Exs.”] 4 and 5.) Pursuant to 28 U.S.C. §636(c), all parties have consented that this matter may proceed before the Magistrate Judge. After reviewing the Petition, the Government’s Response, and 11 Petitioner’s Reply Brief, the Court concludes that the Petition is 12 without merit, and must be dismissed. 13 14 15 PETITIONER’S CONSTITUTIONAL RIGHTS WERE NOT VIOLATED BY THE DHO PROCESS Pursuant to 28 U.S.C. §2241, it is Petitioner’s burden to 16 demonstrate that he is “in custody in violation of the Constitution or 17 laws or treaties of the United States.” 18 Rose v. Hodges, 423 U.S. 19, 21 (1975)(citing 28 U.S.C. §2241.) 28 U.S.C. §2241(c)(3). See 19 20 A. 21 Petitioner arrived at the United State Penitentiary in Terre Haute, 22 23 Factual Background. Indiana on September 21, 2005. (See Klein Declaration Ex. 3.) On August 16, 2006, prison staff recovered an express mail 24 cardboard mailer which was addressed to inmate Cedric King. 25 inside the package, which included certain legal papers, was marijuana. 26 (See Alexander Declaration, Ex. 1.) 27 28 Secreted Following an administrative investigation, on December 22, 2006, Petitioner was charged under Code 111, Introduction of Narcotics. 2 That 1 investigation 2 involved in an attempt to introduce marijuana into the prison facility. 3 A copy of the report was delivered to Petitioner on December 22, 2006. 4 (Id.) concluded that Petitioner, with other inmates, was 5 A Report of Investigation dated January 10, 2007 indicated that 6 Petitioner was interviewed by Lt. Lovett, advised of his rights to 7 remain silent during the disciplinary process, and advised that his 8 silence may be used to draw an adverse inference at any stage of the 9 disciplinary process. Petitioner was provided with a copy of the report 10 and elected not to make a statement or have any witnesses. 11 found that the charge warranted further proceedings and forwarded the 12 report to a Unit Discipline Committee (“UDC”) for further disposition. 13 (Id.) Lt. Lovett 14 On January 16, 2007, Petitioner appeared before a UDC for a 15 hearing, was advised of his rights and stated he had no involvement with 16 the incident. 17 sanctions. (Id.) 18 UDC referred the matter to the DHO for appropriate A hearing was held before a DHO on June 1, 2007. The DHO reviewed 19 all evidence, and found that Petitioner committed the prohibited act of 20 Attempted Introduction of Narcotics. 21 was provided to Petitioner. (See Alexander Declaration, Ex. 2.) The DHO prepared a report which 22 Petitioner received a sanction of loss of 41 days Good Conduct 23 Time, 60 days Disciplinary Segregation, and Loss of Visiting Privileges 24 for one year followed by one year of visits by family only. (Id.) 25 26 Petitioner was thereafter transferred on October 3, 2007 to USP Victorville. (Klein Declaration, Ex. 3.) 27 Petitioner filed administrative appeals on November 28, 2007, and 28 May 5, 2008, which were denied. (See Klein Declaration, Ex. 4, 5.) 3 1 Petitioner thereafter brought this Petition pursuant to 28 U.S.C. §2241. 2 3 B. 4 The requirements of procedural due process in the prison discipline 5 context were established in Wolff v. McDonnell, 418 U.S. 539 (1974). 6 There, 7 required to satisfy procedural due process in this context: (1) written 8 notice of the charged misconduct at least 24 hours before the hearing; 9 (2) an impartial hearing body; (3) an opportunity to present witnesses 10 and documentary evidence; (4) assistance for illiterate inmates or in 11 complex cases; and (5) a written statement of the evidence relied upon 12 and reasons for the sanction. (418 U.S. at 563-568.) 13 Applicable Law. the Supreme Court established the following five elements In the prison disciplinary context, a finding of culpability at the 14 administrative 15 Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 16 472 U.S. 445 (1985); Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir. 17 1987). level must be supported by some evidence. See 18 19 C. Petitioner’s Administrative Disciplinary Process Complied with 20 Due Process Requirements as Established by the Supreme Court. 21 Reviewing the five elements required for procedural due process 22 established by Wolff v. McDonnell, supra, the evidence clearly indicates 23 that Petitioner was not deprived of his constitutional rights. 24 order, the first requirement of written notice was satisfied by the 25 notice provided to Petitioner on December 22, 2006. 26 contends he did not receive written notice until January 16, 2007 (Reply 27 Brief at 3), it is apparent that Petitioner received this notice well 28 over 24 hours before his appearance before the DHO which occurred on 4 In While Petitioner 1 June 1, 2007. 2 Wolff also requires that the hearing be conducted by an impartial 3 body, and there is no indication that the certified DHO, Eleanor 4 Alexander, was not an impartial officer. (Id.) 5 The third requirement in Wolff is that Petitioner had the 6 opportunity to present witnesses and documentary evidence. It is clear, 7 also, that this occurred, as Petitioner submitted two written witness 8 affidavits on his behalf, one from a fellow inmate and one from his 9 aunt. (Id.) 10 The fourth Wolff requirement, that assistance be provided for 11 illiterate inmates or in complex cases, is not applicable in this case, 12 as Petitioner makes no claim that he comes within the ambit of this 13 requirement. 14 The final procedural due process requirement of Wolff is that a 15 written statement of the evidence relied upon and reasons for the 16 sanction be provided to Petitioner. 17 Petitioner was provided with a copy of the DHO report that contained a 18 written statement of the evidence relied upon and the reasons for the 19 sanction. (Alexander Declaration, Ex. 2.) 20 21 The evidence does indicate that In sum, Petitioner’s procedural due process objections were adhered to fully. 22 Petitioner also claims that the findings of DHO were not supported 23 by some evidence, as required by Supreme Court precedent. (See Reply 24 Brief at 4, et seq.) 25 (see ¶ 7, and Ex. 2) summarizes the evidence relied upon to reach a 26 conclusion that Petitioner was guilty of the infraction. The DHO report 27 indicates that according to the evidence, Petitioner financed the 28 attempted introduction of illicit drugs into the institution by sending The Court disagrees. 5 The Alexander Declaration 1 money to an individual named Kristen Henderson through Petitioner’s 2 brother, Andre Taylor. 3 recorded telephone calls establishing Petitioner’s involvement. In 4 particular, the hearing officer summarized in detail two telephone calls 5 of July 18, 2006, which occurred at 6:19 p.m. and 8:37 p.m. 6 calls summarized by the hearing officer indicated that Petitioner had 7 direct involvement in the financial aspect of the transaction, which 8 involved Petitioner’s brother, and his aunt, Debra Davis. (Id.) The hearing officer listened to numerous Other phone 9 Petitioner places reliance upon the signed affidavits of inmates 10 Cedric King and Richard Armstrong, who assertedly pled guilty at their 11 own DHO hearing, that Petitioner had no involvement in the plan to 12 introduce illicit drugs into the institution. (See Ground 2, Petition at 13 3.) 14 with Petitioner’s own statement, were considered by the hearing officer 15 and that the finding of Petitioner’s involvement was based upon a 16 weighing of all the evidence. 17 accord credibility to these witness statements, or Petitioner’s own 18 statement, and in fact, discharged her obligation to weigh the evidence. 19 In any event, this Court must only determine if there was any evidence 20 which supports the conclusion of the DHO. (See Zimmerlee, 831 F.3d at 21 186.) 22 of the evidence. The DHO report, however, indicates that these statements, along The hearing officer was not required to It is clear that the DHO conclusion was supported by the weight 23 Petitioner’s final contention is that the timing of the incident 24 report and the disciplinary hearing was violative of his constitutional 25 rights, because the UDC hearing was not held with 72 hours. 26 are not constitutional requirements, but simply BOP guidelines. 27 preparation of Incident Reports is ordinarily done within 24 hours, and 28 the appearance before the UDC is ordinarily within 72 hours. 6 But these The See 28 1 C.F.R. §541.11 (Table 2). Moreover, Petitioner cannot establish that he 2 was prejudiced by any asserted delay in these proceedings. Petitioner’s 3 due process rights were protected by the fact that he received advance 4 written notice of the violation, with a written statement of the 5 evidence relied upon and the reasons for the discipline imposed. (See 6 Bostic v. Carlson, 884 F.2d 1267, 1270 (9th Cir. 1989).) Petitioner has 7 not demonstrated that he suffered prejudice from any asserted delay, or 8 that any delay was unreasonable. 9 10 Based on the foregoing conclusions, the Court finds no merit in the Petition, and orders that it be dismissed with prejudice. 11 12 13 DATED: December 9, 2009 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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