Atkinson v. Nooth, No. 2:2012cv01034 - Document 47 (D. Or. 2013)
Court Description: OPINION AND ORDER. Based on the foregoing, petitioner's Motion for an Evidentiary Hearing 44 is DENIED, petitioner's Petition for Writ of Habeas Corpus 1 is DENIED, and this proceeding is DISMISSED. Because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is DENIED. See 28 U.S.C. § 2253(c)(2). IT IS SO ORDERED. Signed on 09/09/2013 by Judge Malcolm F. Marsh. (pvh)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON DAVID LEE ATKINSON, Petitioner, Case No. 2:12-cv-01034-MA OPINION AND ORDER v. MARK NOOTH, Respondent. DAVID LEE ATKINSON SID 6463647 Snake River Correctional Institution 777 Stanton Blvd. Ontario, OR 97914-8335 Pro Se ELLEN F. ROSENBLUM Attorney General KRISTEN E. BOYD Assistant Attorney General Department of Justice 1162 Court Street NE Salem, OR 97301-4096 Attorneys for Respondent MARSH, Judge Petitioner David Lee Atkinson, an inmate in the custody of the Oregon Department of Corrections and proceeding pro se, brings this l - OPINION AND ORDER habeas corpus proceeding pursuant to 28 U.S.C. disciplinary Corrections. imposed sanctions the by § 2254, challenging Department Oregon of the petition is For the reasons set forth below, denied, and this proceeding is dismissed. BACKGROUND Petitioner is serving a life sentence for Aggravated Murder, a consecutive 20 year sentence for Robbery in the First Degree, and a concurrent five year sentence for Possession of a Firearm. Ex. 101. Petitioner is a certified legal Correctional Institution. assistant at Snake River On June 19, 2011, Officer J. Patrick of the Oregon Department of Corrections issued a misconduct report following an investigation into whether petitioner was engaged in an operation to extort money in exchange for legal assistance. Petitioner is not permitted to accept money in exchange for his legal assistant services. In the Report, Misconduct Officer Patrick that asserts recorded phone calls between Petitioner and his cellmate, Anthony Fogelman, indicated that Petitioner told Fogelman that he would help Fogelman with his legal issues for $300, of dollars. Jackson to Fogelman thousands relative Russel Atkinson, petitioner's mother. Petitioner accept money which would save arranged orders from for his Thelma Fogelman called a friend, and arranged for the friend to transfer a $100 money order to Russel 2 - OPINION AND ORDER and Jackson indicate to that money the order was from Thelma A few days later, petitioner called Jackson and inquired Atkinson. As a whether Jackson had received any money from his mother. result of the investigation , petitioner was charged with violating rule 4.35- Racketeering , rule 2.16- Extortion II, and rule 4.01 - Disobedience of an Order I. A hearing was conducted by Hearings Officer Frank Serrano on June 27, At the hearing, 2011. petitioner acknowledged having received the Misconduct Report, a Notice of Hearing, a Notice of Inmate Rights in a Hearing, and a copy of the Rules of Prohibited Resp. Conduct. understood his Exs. rights, 105 & 115. stated Petitioner that had reviewed the Misconduct Report, he and denied each charge. Officer Serrano noted that the record contained transcription s of the phone calls at issue and that he had interviewed inmate Fogelman. additional denied Serrano written testimony petitioner's from Thelma request to Atkinson and present Russel Serrano found by a preponderanc e of the evidence that Jackson. petitioner violated Rackteering and Disobedience of an Order I rules, but evidence. dismissed the Extortion II charge for For the Racketeering rule violation, insufficient petitioner was sanctioned with 60 days disciplinary segregation, 14 days loss of privileges upon release from segregation, and a suspended fine of $100. Sanctions on the Disobedience of an Order I rule violation 3 - OPINION AND ORDER Petitioner did not merged with the sanctions for Racketeering. lose any good time credits because petitioner had not been awarded any such credits. On July Administrative 18, petitioner 2011, Review, Administrative Rules complied with because: arguing (OARs) governing the that -0021, 291-105-0015, Petition a filed for Oregon -0028, were not he \vas not permitted to call witnesses, his requested investigation was not completed, the Misconduct Report alleged insufficient facts and was not timely filed, and there was not a preponderance of evidence supporting the rule violations. Motion for Evidentiary Hearing ( jj4 4), 14. Ex. Petitioner also alleged these rule violations deprived him of Due Process under the Fourteenth Amendment. In a written response dated August 30, 2011, the Inspector General determined that there was substantial compliance with the rules, the findings were based upon a preponderance of the evidence, and the sanctions were in accordance with the provisions of the rules. Id., Ex. 15. On September 28, 2011, petitioner filed a Petition for Writ of Habeas Corpus in Malheur County Circuit Court, alleging that the hearing process violated administrative rules and violated his right to Due Process under the Fourteenth Amendment. 105. Resp. Ex. On October 13, 2011, the state court denied the petition on the grounds that it was moot because he had been released from 4 - OPINION AND ORDER disciplinary segregation, and his claims were not properly raised in habeas. Resp. Ex. 110. Petitioner filed an appeal on December 19, 2011. 20, 2012, untimely. On January the Oregon Court of Appeals dismissed his appeal as Petitioner filed the current petition Resp. Ex. 114. for writ of habeas corpus on June 8, 2012. DISCUSSION Petitioner alleges for seven grounds relief: ( 1) his Due Process rights were violated when the misconduct report was not filed within 24 hours as required under OAR 291-105-0021 (2) (a); (2) his Due Process rights were violated because the misconduct report failed to contain sufficient factual allegations as required under OAR 291-105-0021 (2) (a); (3) his Due Process rights were violated when Officer Serrano failed to determine that a prima facie case existed as required by OAR 291-105-0026 (2); (4) his Due Process rights were violated when Serrano failed to conduct an adequate investigation or permit petitioner to call witnesses as required under OAR 291-105-0028 (8) & (9); (5) his Due Process rights were violated when Serrano failed to find that he violated prison rules by a preponderanc e of evidence as required by OAR 291-105-0028 (3); (6) his Due Process rights were violated when Serrano failed to identify a specific privilege he abused to justify the sanction as required by OAR 291-105-0066 (2); and 5 - OPINION AND ORDER (7) his Due Process rights violated when \vere fine imposed a Serrano of without $100 an adequate factual basis as required by OAR 291-105-0069 (1) (a). Respondent moves to deny the habeas petition on several bases: (1) petitioner is not "in custody" for purposes of 28 U.S.C. 2254; (2) petitioner did not fairly present Grounds One through Seven to the Oregon Supreme Court, and therefore, procedurally defaulted; state § are law not (3) petitioner's cognizable under alleged violations 2254; § his claims are and (4) of because petitioner was provided adequate process in his prison disciplinary proceeding, his due process claims fail on the merits. DISCUSSION I. Jurisdiction al Custody Requirement A district court has subject matter jurisdiction to entertain a petition for writ of habeas corpus only if the petitioner is "in custody" within the meaning of 28 U.S.C. petition is filed. § 2254(a) at the time the Section 2254(a) states in pertinent part: The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a 1vrit of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a) (emphasis added). The statute's "in custody" requirement is jurisdiction al and thus it is the first question this court must consider. Hill, 599 F. 3d 976, 978 (9th Cir. 2010). 6 - OPINION AND ORDER Bailey v. The requirement has two aspects: the petitioner must be in custody at the time the ( 1) petition is filed, and (2) the custody must be under the conviction Id. or sentence under attack at the time the petition is filed. "explicitly 2254 (a) Section a requires nexus between petitioner's claim and the unlawful nature of the custody. 980 (quoting 28 U.S.C. § n the Id. at See also Preiser v. Rodriguez, 2254(a)). 411 U.S. 475, 484 (1973) (noting that the purpose of seeking habeas corpus relief to secure is immediate or speedier release from illegal physical custody) . Physical custody alone is not determinative; rather a court will have habeas jurisdiction if there is a sufficient restraint on liberty, as conviction. opposed to a mere collateral Bailey, 599 F.3d at 979. consequence of the Once the sentence imposed for a conviction has "fully expired,n the collateral consequences of that conviction are not sufficient to render an individual "in custodyn for purposes of a habeas petition. Maleng v. Cook, 490 U.S. 488, 492 (1989) (per curiam); see also NcNab v. Kok, 170 F.3d 1246, 1247 (9th Cir. 1999) (finding Oregon sex offender registration statute did not render petitioner "in custodyn); Tatarinov v. Superior Ct., 388 Fed. Appx. 624, 625 (9th Cir. 2010) (petitioner no longer in custody once discharged from parole or probation) . In this case, Murder, Robbery, petitioner does not challenge his Aggravated or Possession of a Firearm convictions. Petitioner challenges only his June 2011 disciplinary conviction 7 - OPINION AND ORDER for which he received privileges, and a fine. of good time credits. disciplinary of Petitioner was not sanctioned with a loss The record demonstrates that petitioner's 2011, disciplinary segregation expired on August 25, instant petition on June and the 14 Resp. Ex. 104. days lost privileges expired shortly thereafter. Petitioner filed the loss a segregation, 8, Thus, 2012. petitioner's sentence had completely expired by the time he filed his petition. Respondent argues that petitioner was not "in custody" pursuant to the disciplinary conviction he challenges at the time he filed his petition, jurisdiction. Maleng, 490 U.S. and therefore, at 492 this court lacks (conviction fully served does not satisfy the "in custody" requirement, even though it may possibly be used to enhance a subsequent sentence, and even if this possibility "actually materializes"); see Harris v. l"elker, 2009 WL 3148769, *3 (S.C. Cal. Sept. 28, 2009) (finding petitioner was not "in custody" where challenged sanction disciplinary was fully served) . Petitioner ackn01vledges that he was released from segregation, but contends that he remains "in custody" as a result of his June 2011 racketeering conviction in three ways. 1 l"irst, petitioner 'Petitioner submitted multiple exhibits in support of his Respondent correctly observes motion for an evidentiary hearing. that petitioner may not challenge his Parole Board decision in this proceeding. However, in reviewing petitioner's arguments, it is clear that petitioner does not submit the exhibits as an attack on the Board's decision, but as an attempt to demonstrate that the Board considered his June 2011 disciplinary conviction 8 - OPINION AND ORDER argues that the Oregon Board of Parole and Post Prison Supervisio n (Board) relied upon the June 2011 disciplina ry conviction to defer his parole until Jun~ 28, 2015. Second, petitione r alleges that he will remain on ftModerate Alert Statusn until June 19, 2015, which he alleges is an ftatypical restrictio nn on his liberty. petitione r argues that he has been removed from And third, non-monet ary. incentive level three. Direct challenge s to parole decisions and parole considera tion processes are theoretic ally cognizabl e in habeas because they go directly to the fact or duration of custody. See Docken v. Chase, 393 F. 3d 1024, 1031 (9th Cir. 2004) (district court had jurisdicti on over habeas petition challengin g Montana parole board's refusal to provide annual review of suitabilit y for parole). However, challenge s to disciplina ry decisions with only a speculativ e effect on future parole prospects typically fall outside the scope of habeas jurisdicti on. See Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003) (claim regarding disciplina ry procedure s properly brought under § 1983 because expungeme nt of disciplina ry finding was not ftlikely to accelerate prisoner' s eligibilit y for parolen). Petitione r does not challenge the Board's decision to defer his parole directly, 2011 disciplina ry but instead contends that but for the June conviction , he would be released on parole. Because petitione r appears pro se, I when denying him parole. have considered the recently filed exhibits as supplemen tal exhibits in support of his habeas petition. 9 - OPINION AND ORDER that argues Petitioner June his disciplinary 2011 conviction necessarily impacted his deferral of parole because the Board was required to deny his parole because of it, citing to O.R.S. § 144.125 (2) (providing that the "board shall postpone a prisoner's that the prisoner engaged scheduled release date if it finds . . in serious misconduct during confinement") . I disagree. As in Ramirez, even if petitioner successfully challenged the disciplinary proceeding, "the parole board will still have the authority to deny his request for parole on the basis of any of the grounds presently available to it in evaluating such a request." Ramirez, omitted). (citation and 859 F. 3d at 334 internal modification s Moreover, an inmate's misconduct during confinement is one of many factors the Board may consider. §§ "The release to decision consideratio ns." 255-060-0012 . OAR 255-060-0006 , 144.185; 144.125, 144.098, See generally O.R.S. prisoner a on rests a myriad of Sandin v. Conner, 515 U.S. 472, 487 (1995). Lastly, to conclude that Board would have released petitioner even if he \vere to disciplinary sanction speculative. Here, successfully on the his challenge record before me June is 2011 purely petitioner ignores that he has had numerous instances of misconduct (15) during his confinement, including an attack on a correctional officer. (#44) Ex. concluded 12. that Indeed, the the Board's petitioner 10 - OPINION AND ORDER Motion for Evidentiary Hearing decision deferring parole present severe "suffers from a emotional disturbance that constitutes a danger to the health or Id. at Ex. 11. safety of the community." In I short, has petitioner find failed to demonstrate a sufficient nexus between his claim and the alleged unlawful nature of custody. his alleged The connection petitioner's between challenged disciplinary segregation and the length of petitioner's confinement is too speculative to establish habeas jurisdiction. Ramirez, 334 F.3d at 859; 6819114, *3 (S.D. Aug. Cal. McEwen, see also Jeffries v. 9, 2011), 2011 WL 2011 Wl 6819099 adopted, (Dec. 20, 2011) (finding no jurisdiction to challenge disciplinary sanction where inmate alleged sanction would be considered during parole eligibility); Gilman v. Knowles, 2010 WL 1659498, *4 (E.D. Cal. Apr. 23, 2010) (same). conclude I Additionally, petitioner's alert status that designation and alleged lost incentives are too speculative to constitute significant restraints on his liberty. Petitioner conclusively alleges that the alert status and the lost incentives are "atypical restrictions." Petitioner does not identify any particular restrictions he has suffered as a result of being placed on alert status, but merely asserts that additional restrictions "may be triggered" if fellow inmates provide false information. Brief in Support (#32), p. 3. type This of potential future restriction has been rejected as sufficient to place a petitioner "in custody" within the meaning of 11 - OPINION AND ORDER § 2254 (a) . Williamson v. Gregoire, 151 F. 3d 1180, 1998) (potential future (9th Cir. 1184 incarceration for failure to register as a sex offender was not "custody" under§ 2254(a)). With respect to the lost incentives, petitioner alleges that he has suffered loss of privileges and freedom, such as privileged housing and the lost ability to request purchase incentive i terns. incentive moves or to But, petitioner fails to demonstrate how these lost incentives restrain his physical liberty. Accordingly, I conclude that these allegations fail to establish a "nexus" to the alleged unlawful McBride, 67 Fed. Appx. nature of his 931 (7th Cir. custody. See Pernokis v. 2003) (reprimand and loss of recreation privileges as a result of disciplinary sanction did not render petitioner "in custody" under § 2254). In summary, petitioner's sentence that he challenges in this proceeding has fully and expired, alleged consequences the he suffers do not place him "in custody" for purposes of§ 2254(a). Accordingly, the court lacks jurisdiction petition for writ of habeas corpus. I over petitioner's decline to address the parties remaining arguments. II. Motion for Evidentiary Hearing Petitioner moves for an evidentiary hearing on his claims for federal habeas relief (#44). I conclude that because the court does not have jurisdiction, petitioner's request for an evidentiary hearing is denied as moot. 12 - OPINION AND ORDER CONCLUSION Based on the foregoing, petitioner's Motion for an Evidentiary Hearing (#44) is DENIED, petitioner's Petition for Writ of Habeas Corpus (#1) is DENIED, and this proceeding is DISMISSED. Because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is DENIED. See 28 U.S.C. § 2253(c) (2). IT IS SO ORDERED. DATED this ~ day of SEPTEMBER, 2013. Malcolm F. Marsh United States District Judge 13 - OPINION AND ORDER
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