Unpublished Disposition, 933 F.2d 1014 (9th Cir. 1991)

MEMORANDUM^** 

During a routine search, federal prison officials discovered a sharpened ten-inch object taped to the outside of Carlos Madrid-Palacios' prison cell door. The object could not be seen or reached from within the cell. A disciplinary hearing was conducted by M.V. Razo, a Discipline Hearing Officer. Officer Razo found Madrid-Palacios guilty of possessing a sharpened instrument and revoked 60 days of his statutory good time credit. The Regional Director of the Bureau of Prisons and the Bureau of Prisons Central Office affirmed.

Madrid-Palacios then filed this habeas petition in district court pursuant to 28 U.S.C. § 2241, alleging there was insufficient evidence to support the charge against him. In support of his petition, Madrid-Palacios claimed for the first time that a prison official, Corrections Officer Geiger, would provide evidence on his behalf. Officer Geiger submitted a sworn statement denying any knowledge of exculpatory information. The district court held Madrid-Palacios was required to raise this issue in the first instance during the prison's disciplinary proceedings and, accordingly, dismissed the petition for failure to exhaust administrative remedies. We affirm, but on a different ground.

Ordinarily, a federal prisoner is required to exhaust administrative remedies before initiating habeas proceedings in federal court. Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). Here, it is conceded that Madrid-Palacios presented his claim that there was insufficient evidence to impose sanctions against him to the appropriate administrative authorities. Appellee correctly contends that Madrid-Palacios must return to the administrative authorities if he wishes to present evidence in the form of testimony by Corrections Officer Geiger. Madrid-Palacios, however, states that he prefers to withdraw his offer of additional evidence rather than return for further administrative proceedings. Accordingly, we now address the merits. Cf. Rose v. Lundy, 455 U.S. 509, 521 (1982) (prisoner may delete any unexhausted claim from his habeas petition).

Madrid-Palacios asserts his due process rights were violated because there was insufficient evidence to support the charge that he possessed a sharpened instrument. We disagree.

" [T]he requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits." Superintendent v. Hill, 472 U.S. 445, 455 (1985) (emphasis added). Prison officials found the sharpened object taped to the outside of Madrid-Palacios' cell door. Although Madrid-Palacios could neither see nor reach the sharpened object from within his cell, we must agree with appellee that its location constituted "some evidence" that Madrid-Palacios possessed the object. The Discipline Hearing Officer could rationally conclude that a prisoner in possession of a weapon would most likely keep it near his cell. In this case, as in Hill itself, the evidence is "meager." Hill, 472 U.S. at 457. However, under the deferential standard established by Hill, no more is required.

Madrid-Palacios claims his habeas petition was improperly transferred from Magistrate Reichmann, who recommended a favorable disposition, to Magistrate Brown, who made an unfavorable recommendation ultimately adopted by the district court. The district court held that the transfer was proper. We agree.

General Order No. 224 of the Central District of California requires that related cases be transferred to the judge to whom the case with the lowest case number has been assigned. There were two other related habeas petitions pending before Magistrate Brown, one of which had a lower case number than that assigned to Madrid-Palacios' petition. Accordingly, the district court transferred Madrid-Palacios' petition from Magistrate Reichmann to Magistrate Brown. This Court must "defer to the district court's reading [of its own local rules] to the extent that such a construction does not involve conflict with an order of this court, the Federal Rules of Civil Procedure, case or statutory law, or the Constitution of the United States." United States v. Mouzin, 785 F.2d 682, 695 (9th Cir. 1986). No such conflict is alleged or is apparent.

To the extent Madrid-Palacios claims the existence of Magistrate Reichmann's favorable recommendation created a liberty interest entitled to protection under the due process clause, his claim is meritless.

AFFIRMED.