-MJS (HC) Minero-Regalado v. Benov, No. 1:2011cv00683 - Document 8 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Michael J. Seng on 10/30/2011 recommending that 1 Petition for Writ of Habeas Corpus filed by Armando Minero-Regalado be Dismissed with prejudice. Referred to Judge Anthony W. Ishii; Objections to F&R due by 12/5/2011. (Lundstrom, T)
Download PDF
<![CDATA[
-MJS (HC) Minero-Regalado v. Benov Doc. 8 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 ARMANDO MINERO-REGALADO, 10 11 12 13 14 ) ) Petitioner, ) ) v. ) ) ) MICHAEL L. BENOV, Warden, ) ) Respondent. ) ________________________________) 1:11-cv-00683 AWI MJS HC FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) 15 16 I. Plaintiff is a federal prisoner proceeding pro se with a Petition for Writ of Habeas 17 18 INTRODUCTION Corpus pursuant to 28 U.S.C. § 2241. 19 The instant Petition for Writ of Habeas Corpus was filed on April 29, 2011. (Pet., ECF 20 No. 1.) The petition challenges the findings of two separate disciplinary hearings held on the 21 same date. (Id. at 21-26.) On October 26, 2010, Petitioner was found guilty of offense code 22 305, Possession of Unauthorized Items and offense code 206, Making Sexual Proposals or 23 Threats to Another. Petitioner raises two challenges to the disciplinary proceedings. First, 24 Petitioner asserts that his due process right were violated by failure to provided him notice that 25 his conduct violated prison rules regarding possession of unauthorized items. Further, he 26 claims that his due process was violated by the presentation of false statements and evidence 27 with on the charge of making sexual threats to another. 28 /// U .S. D istrict C ourt E. D . C alifornia -1Dockets.Justia.com 1 II. FACTUAL SUMMARY 2 A. Possession of Unauthorized Items 3 On September 12, 2010, Petitioner received an incident report for a violation of code 4 305, Possession of Unauthorized Items. (Pet. at 21-23.) Prohibited Act Code section 305, set 5 forth in 28 C.F.R. § 541.3, is referred to as "Possession of anything not authorized for retention 6 or receipt by the inmate, and not issued to him through regular channels," and denominated 7 as a "moderate severity level prohibited act." Petitioner was given advanced notice of the 8 hearing, and on September 14, 2010, Petitioner was advised of his rights. (Id.) 9 On October 26, 2010, the disciplinary hearing was held. (Id.) The Disciplinary Hearing 10 Officer ("DHO") was presented evidence in the form of an incident report from correctional 11 officer Garcia. The officer stated in the report that while conducting inventory of Petitioner’s 12 items on September 12, 2010, she found medical supplies including over 30 adhesive 13 bandages, gauze, iodine swabs, and zinc ointment. A photograph of the items was entered 14 into evidence. At the hearing, Petitioner admitted that he was given the supplies for an ingrown 15 toenail over a year ago. 16 Based on the relevant evidence presented at the hearing, the DHO found Petitioner 17 guilty of the offense. The DHO relied on the fact that while Petitioner was given the supplies 18 by the medical office, he should have disposed of them after they were no longer needed. 19 Continued possession of the items was without authorization. The DHO sanctioned Petitioner 20 with 13 days disallowance of good conduct time. (Id.) 21 22 In his petition, Petitioner asserts that his due process was violated as he was not given sufficient notice that he was no longer able to possess the medical supplies. 23 B. Making Sexual Proposals and Threats 24 On September 12, 2010, Petitioner received another incident report for a violation of 25 code 206, “Making Sexual Proposals or Threats to Another. (Pet. at 24-26.) Prohibited Act 26 Code section 206, set forth in 28 C.F.R. § 541.3, is denominated as a "high severity level 27 prohibited act." Petitioner was given advanced notice of the hearing, and on September 14, 28 2010, Petitioner was advised of his rights. (Id.) U .S. D istrict C ourt E. D . C alifornia -2- 1 On October 26, 2010, the disciplinary hearing was held. (Id.) The DHO was presented 2 evidence in the form of an incident report from correctional officer Ruiz. The officer stated in 3 the report that while conducting count, she looked into Petitioner’s cell and observed him 4 masturbating. (Id.) 5 At the hearing, Petitioner made the following statement: “I don’t remember doing that. 6 If I was doing that why didn’t she get my attention and tell me. I don’t remember that, I was in 7 a deep sleep. I think that is embarrassing, I would never do that. I don’t understand why she 8 would say that.” (Id.) Petitioner’s cell-mate was also called as a witness at the hearing. He 9 stated, “I was asleep laying in the upper bunk, I didn’t see him masturbate. I couldn’t allow him 10 to be doing that while he is my cellie. It is possible I did not see him cause I was in the upper 11 bunk.” (Id.) 12 Based on the relevant evidence presented at the hearing, the DHO found Petitioner 13 guilty of the offense. The DHO relied on the fact that the female staff member clearly saw 14 Petitioner masturbating. The DHO also found that Petitioner’s statements were not reliable as 15 the reason that he did not remember the incident was that he did not want to remember the 16 incident because he was embarrassed by his actions. (Id.) The DHO sanctioned Petitioner 17 with 27 days disallowance of good conduct time, 15 days of disciplinary segregation, and six 18 months loss of commissary privileges. (Id.) In his petition, Petitioner asserts that his due process rights were violated by the officer 19 20 providing a false report regarding the disciplinary violation. 21 II. JURISDICTION 22 A. Subject Matter Jurisdiction 23 Relief by way of a writ of habeas corpus extends to a prisoner in custody under the 24 authority of the United States who shows that the custody violates the Constitution, laws, or 25 treaties of the United States. 28 U.S.C. § 2241(c)(3). Although a federal prisoner who 26 challenges the validity or constitutionality of his conviction must file a petition for writ of habeas 27 corpus pursuant to 28 U.S.C. § 2255, a federal prisoner challenging the manner, location, or 28 conditions of the execution of a sentence must bring a petition for writ of habeas corpus under U .S. D istrict C ourt E. D . C alifornia -3- 1 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000). 2 Petitioner asserts that, as a result of adverse rulings in the prison disciplinary 3 proceedings, he suffered violations of his rights as guaranteed by the United States 4 Constitution. As a result of each of the hearings, Respondent sanctioned Petitioner with 5 disallowance of good conduct time. 6 "Habeas corpus jurisdiction is available under 28 U.S.C. section 2241 for a prisoner's 7 claims that he has been denied good time credits without due process of law." Bostic v. 8 Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (citing Preiser v. Rodriguez, 411 U.S. 475, 9 487-88 (1973)). Accordingly, the Court concludes that it has subject matter jurisdiction over 10 the petition. 11 B. Jurisdiction Over the Person 12 Title 28 U.S.C. § 2241(a) provides that writs of habeas corpus may be granted by the 13 district courts "within their respective jurisdictions." A writ of habeas corpus operates not upon 14 the prisoner, but upon the prisoner's custodian. Braden v. 30th Judicial Circuit Court of 15 Kentucky, 410 U.S. 484, 494-495 (1973). A petitioner filing a petition for writ of habeas corpus 16 under § 2241 must file the petition in the judicial district of the Petitioner's custodian. Brown 17 v. United States, 610 F.2d 672, 677 (9th Cir. 1990). The warden of the penitentiary where a 18 prisoner is confined constitutes the custodian who must be named in the petition, and the 19 petition must be filed in the district of confinement. Id.; Rumsfeld v. Padilla, 542 U.S. 426, 20 446-47 (2004). It is sufficient if the custodian is in the territorial jurisdiction of the court at the 21 time the petition is filed; transfer of the petitioner thereafter does not defeat personal 22 jurisdiction that has once been properly established. Ahrens v. Clark, 335 U.S. 188, 193, 68 23 S. Ct. 1443, 92 L. Ed. 1898 (1948), overruled on other grounds in Braden, 410 U.S. at 493, 24 citing Mitsuye Endo, 323 U.S. 283, 305 (1944); Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 25 1990). A failure to name and serve the custodian deprives the Court of personal jurisdiction. 26 Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003). 27 Here, at all pertinent times, Petitioner was incarcerated at the Taft Correctional 28 Institution (TCI), which is located within the Eastern District of California. Petitioner named U .S. D istrict C ourt E. D . C alifornia -4- 1 Michael L. Benov, the Warden of TCI, as Respondent. Accordingly, the Court concludes that it has personal jurisdiction over the custodian. 2 3 III. SCREENING THE PETITION 4 The Rules Governing Section 2254 Cases in the United States District Courts (Habeas 5 Rules) are appropriately applied to proceedings undertaken pursuant to 28 U.S.C. § 2241. See 6 Habeas Rule 1(b). Habeas Rule 4 requires the Court to make a preliminary review of each 7 petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly 8 appears from the petition and any attached exhibits that the petitioner is not entitled to relief 9 in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); 10 see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that 11 a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting 12 each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the 13 petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory 14 Committee Notes, 1976 Adoption; O'Bremski, 915 F.2d at 420 (quoting Blackledge v. Allison, 15 431 U.S. 63, 75 n. 7, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977)). Allegations in a petition that 16 are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. 17 Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 18 Here, Petitioner challenges on due process and other grounds two prison disciplinary 19 findings that resulted in loss of good time credit. For each disciplinary violation, Petitioner has 20 provided the Court with a record of the incident report, disciplinary hearing and findings, and 21 the administrative appeals process. (Pet.) Accordingly, Petitioner has provided the Court with 22 all the relevant documentation of the disciplinary proceedings as well as documentation of 23 Petitioner's exhaustion of administrative remedies to allow this Court to determine the merits 24 of the petition at this time. Accordingly, the Court will proceed to determine on the merits the issues raised by 25 26 Petitioner on the basis of the documentary record provided by Petitioner. 27 /// 28 /// U .S. D istrict C ourt E. D . C alifornia -5- 1 IV. ANALYSIS OF CLAIMS 2 B. Violation of Petitioner's Due Process Rights 3 The law concerning a prisoner's Fourteenth Amendment liberty interest in good time 4 credit is set forth in Wolff v. McDonnell, 418 U.S. 539 (1974). While the United States 5 Constitution does not guarantee good time credit, an inmate has a liberty interest in good time 6 credit when a state statute provides such a right and delineates that it is not to be taken away 7 except for serious misconduct. See id. at 557 ("It is true that the Constitution itself does not 8 guarantee good-time credit for satisfactory behavior while in prison. But here the State itself 9 has not only provided a statutory right to good time but also specifies that it is to be forfeited 10 only for serious misbehavior."); id. ("[T]he State having created the right to good time and itself 11 recognizing that its deprivation is a sanction authorized for major misconduct, the prisoner's 12 interest has real substance …."); id. at 558 (holding that "[s]ince prisoners in Nebraska can 13 only lose good-time credits if they are guilty of serious misconduct, the determination of 14 whether such behavior has occurred becomes critical, and the minimum requirements of 15 procedural due process appropriate for the circumstances must be observed"). 16 Prisoners cannot be entirely deprived of their constitutional rights, but their rights may 17 be diminished by the needs and objectives of the institutional environment. Wolff, 418 U.S. at 18 539. Prison disciplinary proceedings are not part of a criminal prosecution, so a prisoner is not 19 afforded the full panoply of rights in such proceedings. Id. at 556. Thus, a prisoner's due 20 process rights are moderated by the "legitimate institutional needs" of a prison. Bostic v. 21 Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989), citing Superintendent, etc. v Hill, 472 U.S. 445, 22 454-455 (1984). 23 When a prison disciplinary proceeding may result in the loss of good time credits, due 24 process requires that the prisoner receive: (1) advance written notice of at least 24 hours of 25 the disciplinary charges; (2) an opportunity, when consistent with institutional safety and 26 correctional goals, to call witnesses and present documentary evidence in his defense; and 27 (3) a written statement by the fact-finder of the evidence relied on and the reasons for the 28 disciplinary action. Hill, 472 U.S. at 454; Wolff, 418 U.S. at 563-567. U .S. D istrict C ourt E. D . C alifornia -6- 1 In addition, due process requires that the decision be supported by "some evidence." 2 Hill, 472 U.S. at 455, citing United States ex rel. Vajtauer v. Commissioner of Immigration, 273 3 U.S. 103, 106 (1927). In Hill, the United States Supreme Court explained that this standard 4 is met if "there was some evidence from which the conclusion of the administrative tribunal 5 could be deduced . . ." Id. "Ascertaining whether this standard is satisfied does not require an 6 examination of the entire record, independent assessment of the credibility of witnesses, or 7 weighing of the evidence." Hill, 472 U.S. at 456. Instead, "the relevant question is whether 8 there is any evidence in the record that could support the conclusion reached by the 9 disciplinary board." Id. at 455-456. The Court justified this lesser standard as follows: 10 We decline to adopt a more stringent evidentiary standard as a constitutional requirement. Prison disciplinary proceedings take place in a highly charged atmosphere, and prison administrators must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances. The fundamental fairness guaranteed by the Due Process Clause does not require the courts to set aside decisions of prison administrators that have some basis in fact. Revocation of good time credits is not comparable to a criminal conviction, and neither the amount of evidence necessary to support such a conviction, nor any other standard greater than some evidence applies in this context. 11 12 13 14 15 Id. at 456. (Citations omitted.) 16 "The Federal Constitution does not require evidence that logically precludes any 17 conclusion but the one reached by the disciplinary board." Hill at 457. Even where, as in Hill, 18 the evidence in the case "might be characterized as meager," if "the record is not so devoid 19 of evidence that the findings of the disciplinary board were without support or otherwise 20 arbitrary," those findings must be upheld. Id. Thus, if the procedures listed above are afforded 21 to an inmate, and "some evidence" supports the hearing officer's decision, the requirements 22 of due process are satisfied. Hill, 472 U.S. at 455; Bostic v. Carlson, 884 F.2d at 1269-1270. 23 On October 26, 2010, the disciplinary hearings were held. (Pet. at 9-11.) On November 24 3, 2010, the DHO issued written decisions in each case, which were served on Petitioner on 25 November 23, 2010. (Id.) After reviewing all of the evidence, the DHO found Petitioner guilty 26 of committing both prohibited acts. The finding were based on the information submitted by 27 the correctional officer, statements of Petitioner and other relevant evidence. (Id.) 28 U .S. D istrict C ourt E. D . C alifornia -7- 1. 1 Possession of Medical Supplies 2 With regard to the violation of possession of an unauthorized item, the evidence 3 presented at the disciplinary hearing and relied upon by the DHO included an incident report 4 filed by Officer Garcia. (Pet. at 22.) According to the report, the officer found the medical 5 supplies while conducting an inventory of Petitioner's property. Further, the DHO relied on 6 testimony at the hearing where Petitioner admitted that the medical supplies were in his 7 possession. (Id.) In finding Petitioner guilty, the DHO specifically relied on Petitioner's 8 admission that he possessed the medical supplies. (Id.) Concluding that Petitioner continued 9 to possess the items after he no longer needed them, he was no longer authorized to have 10 them. Accordingly, the DHO found the evidence supported finding Petitioner guilty of the 11 offense of possession of unauthorized items. (Id.) 12 The Court finds that "some evidence" exists to support a finding that Petitioner had 13 committed the prohibited act of possession of unauthorized items. The DHO found that even 14 if the statements of the Petitioner were true, that his possession of the medical supplies was 15 some evidence of possession of unauthorized items. Accordingly, the "some evidence" 16 standard has been met. See Hill, 472 U.S. at 455. The fact that Petitioner's assertion that his 17 actions did not constitute possession of unauthorized items does not alter the conclusion that 18 the DHO's decision was supported by "some evidence." Accordingly, Petitioner's due process 19 claim with regard to this violation lacks merit. 2. 20 Does the BOP Regulations Provide Adequate Notice? 21 Petitioner argues that Prohibited Act Code section 305 did not provide him sufficient 22 notice that his conduct was prohibited. Specifically, he contends that the regulation failed to 23 give him notice that the continued possession of medical supplies could subject Petitioner to 24 a disciplinary violation for possession of contraband. (See Pet. at 3-4.) The Court liberally 25 construes this as a claim that Code 305 is unconstitutionally vague as applied to Petitioner's 26 conduct. 27 "Due process requires fair notice of what conduct is prohibited before a sanction can 28 be imposed." Newell v. Sauser, 79 F.3d 115, 117 (9th Cir. 1996) (citing Grayned v. City of U .S. D istrict C ourt E. D . C alifornia -8- 1 Rockford, 408 U.S. 104, 108 (1972)). While "[d]ue process undoubtedly requires certain 2 minimal standards of specificity in prison regulations," "the degree of specificity required of 3 such regulations is [not] as strict in every instance as that required of ordinary criminal 4 sanctions." Meyers v. Alldredge, 492 F.2d 296, 310 (3d Cir. 1974); see also Adams v. Gunnell, 5 729 F.2d 362, 369-70 (5th Cir. 1984). In the prison context, "'the law requires less in the way 6 of notice, and places a greater burden on the individual to make inquiry or ask permission 7 before acting.'" Meyers, 492 F.2d at 311 (quoting Landman v. Royster, 333 F.Supp. 621, 8 655-56 (E.D. Va. 1971)). Federal courts defer to prison authorities' interpretation of prison 9 rules "unless fair notice was clearly lacking." Hadden v. Howard, 713 F.2d 1003, 1008 (3d Cir. 10 1974). 11 Under the circumstances here, fair notice was not clearly lacking. The BOP 12 promulgated regulations pertaining to “Possession of anything not authorized for retention or 13 receipt by the inmate, and not issued to him through regular channels." See 28 C.F.R. § 541.3. 14 The regulations puts a reasonable prisoner on reasonable notice that the retention of 15 unauthorized property may subject him to sanction. Based on such regulations, a reasonable 16 prisoner would conclude that retaining medical supplies that prisoners are not normally given 17 may result in a disciplinary violation. That the regulation does not delineate each and every 18 possible variation of possession or retention of unauthorized items does not render it 19 impermissibly vague. Code 305 was not drawn with such generality that Petitioner did not have 20 fair notice that his conduct could violate the rule. See Cowan v. Sanders, 2010 U.S. Dist. 21 LEXIS 15211, *11-13 (C.D. Cal. Jan. 19, 2010). Because Code 305 was sufficient to satisfy 22 the due process requirement of fair notice in the prison context, habeas relief is unwarranted 23 on this claim. 24 3. Sexual Proposals or Threats 25 With regard to the violation of making sexual proposals or threats to another, the 26 evidence presented at the disciplinary hearing and relied upon by the DHO included an 27 incident report filed by Officer Ruiz. (Pet. at 25.) According to the report, while conducting 28 count, the officer observed the Petitioner masturbating. At the hearing, Petitioner denied the U .S. D istrict C ourt E. D . C alifornia -9- 1 charges, and stated that he did not remember committing such an act. (Id.) In finding 2 Petitioner guilty, the DHO specifically relied on statement of the correctional officer and 3 doubted the reliability of Petitioner’s account of the events. Accordingly, the DHO found the 4 evidence supported finding Petitioner guilty of the offense of making sexual proposals or 5 threats to another. (Id.) 6 The Court finds that "some evidence" exists to support a finding that Petitioner had 7 committed the prohibited act of making sexual proposals or threats to another. The DHO found 8 the statements from the correctional officer that observed him masturbating to be reliable. 9 Accordingly, the "some evidence" standard has been met. See Hill, 472 U.S. at 455. While the 10 evidence was not overwhelming, the DHO's determination "was not so lacking in evidentiary 11 support as to violate due process." Id. at 457. Accordingly, Petitioner's due process claim with 12 regard to this violation lacks merit. 13 Petitioner asserts that the officer did not observe Petitioner masturbating and instead 14 fabricated the incident. Petitioner requests this Court to make an independent assessment of 15 the credibility of the witness’ testimony, which is not part of the federal inquiry. See Hill, 472 16 U.S. at 456. It is the role of this Court to determine that the DHO’s decision relied on “some 17 evidence,” not question the DHO’s determination of the reliability of the evidence that was 18 presented. Accordingly, Petitioner’s claim is without merit. 19 V. 20 21 RECOMMENDATION For the reasons discussed herein, the Court RECOMMENDS that petition be DISMISSED with prejudice. 22 These findings and recommendations are submitted to the United States District Court 23 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 24 304 of the Local Rules of Practice for the United States District Court, Eastern District of 25 California. Within thirty (30) days after being served with a copy, any party may file written 26 objections with the Court and serve a copy on all parties. Such a document should be 27 captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies to the 28 objections shall be served and filed within fourteen (14) days (plus three days if served by U .S. D istrict C ourt E. D . C alifornia -10- 1 mail) after service of the objections. The Court will then review the Magistrate Judge's ruling 2 pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections 3 within the specified time may waive the right to appeal the District Court's order. Martinez v. 4 Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 6 IT IS SO ORDERED. 7 Dated: ci4d6 October 30, 2011 Michael J. Seng /s/ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia -11-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
