Opinion
No. 12-CV-128-PHX-PGR (MHB)
2013-10-07
Kenneth Burnam, Petitioner, v. Dennis R. Smith, Warden, Respondent.
ORDER
Pending before the Court is Magistrate Judge Burns' Report and Recommendation ("R & R") (Doc. 19), which recommends the denial of Petitioner's amended petition for writ of habeas corpus, filed March 16, 2012, pursuant to 28 U.S.C. § 2254 (Doc. 8). For the reasons set forth below, the Court will adopt the R & R.
DISCUSSION
On February 23, 2011, while Petitioner was incarcerated at the United States Penitentiary in Lompoc, California, an Incident Report was prepared charging him with Making Sexual Proposals. Ultimately, the Disciplinary Hearing Officer ("DHO") determined that the evidence supported a different and lesser charge—Interfering with Staff in Performance of Duty—and sanctioned Petitioner accordingly. Petitioner argues that his due process rights were violated because he was not provided advance notice of the reduced charge and therefore was unable to defend himself adequately.
The R & R found that Petitioner was afforded the due process rights to which he was entitled under Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974). (Doc. 19 at 4.) He was provided a copy of the Incident Report; advised of, and waived, his right to call witnesses and have the assistance of a staff representative; provided a copy of the disciplinary report; and he appeared before a sufficiently impartial decision maker. (Id.) The R & R also found that the decision of the DHO was supported by "some evidence" as required by Superintendent v. Hill, 472 U.S. 445, 454-55 (1985). (Id. at 7.)
Having reviewed the matter de novo in the light of Petitioner's objections (Doc. 20), the Court agrees with Magistrate Judge Burns that Petitioner's due process rights were not violated. In concluding that Petitioner committed the lesser violation, the DHO's detailed findings took into account all of the evidence concerning to the incident, which included the facts relevant to both violations. Petitioner was not deprived of the opportunity to present any relevant evidence, and the evidence cited by the DOH was sufficient to support a finding of Interference with Staff.
Accordingly,
IT IS HEREBY ORDERED that the Report and Recommendation (Doc. 19) is ADOPTED IN FULL. The amended habeas petition (Doc. 8) is DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal is DENIED because Petitioner has not made a substantial showing of the denial of a constitutional right.
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Paul G. Rosenblatt
United States District Judge