Topete v. Feather, No. 3:2014cv00677 - Document 17 (D. Or. 2014)
Court Description: 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)
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Topete v. Feather Doc. 17 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON JOSE ELIODORO TOPETE, Petitioner, 3:14-cv-00677-MA OPINION AND ORDER 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 Dockets.Justia.com 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 day of December, 2014. Malcolm F. Marsh United States District Judge 7 - OPINION AND ORDER
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