Opinion
CV-21-00259-TUC-JGZ
10-17-2022
Adam Chavez, Petitioner, v. C. Howard, Respondent.
ORDER
JENNIFER G. ZIPPS UNITED STATES DISTRICT JUDGE
Pending before the Court is a Report and Recommendation (R&R) issued by Magistrate Judge Maria S. Aguilera. (Doc. 16.) Magistrate Judge Aguilera recommends dismissing Petitioner Adam Chavez's § 2241 Petition for Writ of Habeas Corpus. (Id.) Chavez filed an Objection, and Respondents filed a Response. (Docs. 18, 20.) Having reviewed the record, the Court will adopt the R&R and dismiss Chavez's Petition.
STANDARD OF REVIEW
When reviewing a Magistrate Judge's R&R, this Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). “[T]he district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). District courts are not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. Further, a party is not entitled as of right to de novo review of evidence or arguments which are raised for the first time in an objection to the R&R, and the Court's decision to consider newly raised arguments is discretionary. Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002); United States v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000).
BACKGROUND
The Court will adopt the Background of the R&R. (Doc. 16 at 1-2.) The Court will not restate the facts here but includes relevant facts in its discussion of Chavez's Objection.
DISCUSSION
The Court will overrule Chavez's Objection, adopt the Magistrate Judge's R&R, and deny a Certificate of Appealability.
I. Chavez's Objection
Prisons must provide inmates with certain procedures that ensure due process before depriving inmates of their protected liberty interest in good-time credits. Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 453 (1985). If a disciplinary hearing could result in the loss of good-time credits, an inmate must receive: (1) advance written notice of the disciplinary charges; (2) an opportunity to call witnesses and present evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action. Id. at 454. A disciplinary hearing satisfies due process if “some evidence” supports the decision to revoke good-time credits. Id. “[T]he relevant question [for the some-evidence rule] is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Id. at 455-56 (emphasis added).
In his Objection, Chavez raises two main arguments to support his claim that the Bureau of Prisons' Disciplinary Hearing Officer (DHO) violated his due-process right and wrongfully took away his good-time credits: (1) the evidence the DHO considered failed to meet the “some evidence” standard, (Doc. 18 at 2-5); (2) Chavez attempting to introduce contraband into the facility was not the only possible explanation for the evidence. (Doc. 18 at 4.) For the reasons that follow, the Court finds these arguments unpersuasive.
A. Insufficient Evidence
Chavez argues that the evidence the DHO considered failed to meet the some-evidence standard because no physical evidence or witness testimony was presented at the hearing and the DHO should not have relied on the investigative report as it was hearsay. (Doc. 18 at 2-5.)
First, the absence of physical evidence at the hearing did not violate due process. See, e.g., Alexander v. Schleder, 790 F.Supp.2d 1179, 1187 (E.D. Cal. 2011), aff'd, 508 Fed.Appx. 605 (9th Cir. 2013) (DHO did not need to personally view video evidence and could rely on officer's summary of the video under some-evidence rule); Reid v. Shartle, No. CV-15-00083-TUC-BPV, 2017 WL 3582309, at *14 (D. Ariz. Aug. 18, 2017), aff'd, 744 Fed.Appx. 468 (9th Cir. 2018) (same); Cruz v. Adams, 195 Fed. App'x 661, 661-62 (9th Cir. 2006) (report stating that officer discovered alcohol in inmate's cell was sufficient under some-evidence rule).
ORDER
Second, the DHO did not violate Chavez's due process by relying on the investigative report and not requiring its author, Officer Gallion, to testify in person. The some-evidence rule does not preclude the use of hearsay so long as the totality of the circumstances suggest that the source is reliable. See Dawson v. Norwood, No. CV-08-01070-AHS-RZ, 2010 WL 761226, at *2 (C.D. Cal. Mar. 1, 2010), aff'd, 443 Fed.Appx. 286 (9th Cir. 2011); Mendez v. Ryan, No. CV-12-0271-PHX-RCB, 2013 WL 6408389, at *6 (D. Ariz. Dec. 9, 2013). Law enforcement officers may be presumed reliable. See United States v. Angulo-Lopez, 791 F.2d 1394, 1397 (9th Cir. 1986); Dawson, at *2.
The totality of the circumstances suggest that Officer Gallion's report was a reliable source. In the context of a prison disciplinary hearing, the DHO may presume Officer Gallion reliable. See Angulo-Lopez, 791 F.2d at 1397; Dawson, at *2. Chief Pharmacist Hunt's memorandum, which states that photographs of Chavez's mail showed a substance on the mail that appeared to be suboxone, also corroborates Officer Gallion's report. (Doc. 12-2 at 13, 16.) Further, the DHO did not review Officer Gallion's report or Chief Pharmacist Hunt's memorandum in isolation. The DHO also reviewed the TRUVIEW and TRUFONE reports and the statements from another inmate, which implicated Chavez in the scheme to introduce contraband. (Doc. 12-2 at 10.)
Moreover, even if the DHO's actions violated Chavez's due-process right, Chavez still needs to establish that he was harmed by the violation to obtain relief. Chavez fails to explain how having physical evidence or in-person testimony would have shown that he did not attempt to introduce contraband or that the DHO should have doubted the reliability of Officer Gallion's report or his fellow inmate's telephonic and emailed statements. Chavez thus demonstrates no harm or prejudice.
See, e.g., Powell v. Coughlin, 953 F.2d 744, 750 (2nd Cir. 1991) (“[I]t is entirely inappropriate to overturn the outcome of a prison disciplinary proceeding because of a procedural error without making the normal appellate assessment as to whether the error was harmless or prejudicial.”); Brown v. Braxton, 373 F.3d 501, 508 (4th Cir. 2004) (“[E]ven if [the DHO] somehow erred in not calling . . . a live witness, [Petitioner] has not demonstrated that he was harmed by [the witness] testifying in writing rather than in person.”); Piggie v. Cotton, 344 F.3d 674, 678 (7th Cir. 2003) (“[Petitioner must] indicat[e] . . . what [the witness's] testimony might have been or how it would have aided in [Petitioner's] defense.”); Grossman v. Bruce, 447 F.3d 801, 805 (10th Cir. 2006) (“[E]rrors made by prison officials in denying witness testimony at official hearings are subject to harmless error review.”).
The Court also notes that Chavez, at the initial disciplinary hearing, could have called witnesses, presented evidence in his defense, and requested to inspect the prison's physical evidence. See Wolff v. McDonnell, 418 U.S. 539, 566 (1974) (qualified right to call witnesses and present evidence); Melnik v. Dzurenda, 14 F.4th 981, 985-87 (9th Cir. 2021) (qualified right to inspect prison's physical evidence). The prison gave Chavez that opportunity, which he declined. (Doc. 12-2 at 9-12, 17, 18.)
B. Alternative Theories
Chavez contends that the DHO should not have found him guilty of attempting to introduce contraband because that is “not the only conclusion that could be drawn from the alleged evidence.” (Doc. 18 at 4.) Chavez misunderstands the some-evidence rule. As long as there is any evidence in the record showing that Chavez attempted to introduce contraband into the prison, the DHO may deprive him of his good-time credits. See Hill, 472 U.S. at 455-56. And there is no requirement that the evidence only support the DHO's conclusion. See id.
II. Certificate of Appealability
Although Petitioner has brought his claims in a § 2241 petition, a certificate of appealability is required where a § 2241 petition attacks the petitioner's conviction or sentence. See Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001). Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, in the event Petitioner files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court's ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
CONCLUSION
For the foregoing reasons, IT IS ORDERED:
1. The Report and Recommendation (Doc. 16) is ADOPTED.
2. Chavez's Petition for Writ of Habeas Corpus (Doc. 1) is
DISMISSED.
3. In the event Petitioner files an appeal, the Court denies issuance of a Certificate of Appealability.
4. The Clerk of Court must enter judgment accordingly and close its file in this action.