Opinion
CV-23-00531-TUC-RM (BGM)
07-24-2024
Gary Allen Kachina, Petitioner, v. M. Gutierrez, Respondent.
REPORT AND RECOMMENDATION
Honorable Bruce G. Macdonald United States Magistrate Judge.
On November 20, 2023, Petitioner Gary Allen Kachina, who was previously incarcerated by the Federal Bureau of Prisons (BOP) and housed at the United States Penitentiary in Tucson, Arizona (USP-Tucson), filed a Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody and an accompanying exhibit. (Docs. 1, 4.) Less than three weeks later, Kachina filed a Notice of Change of Address indicating that he had been transferred from USP-Tucson to the Roseville Residential Reentry Center in Roseville, Minnesota. (Doc. 3.) BOP records reflect that Kachina was released from custody on February 26, 2024, and that he is currently serving a three-year term of supervised release. (Doc. 12-1 at 9-10.)
Under LRCiv 72.1 and 72.2, Kachina's petition was referred to Magistrate Judge Bruce G. Macdonald for a report and recommendation. (Doc. 6 at 4.) The Magistrate Judge recommends that the District Judge, after her independent review, deny the petition and dismiss this case.
BACKGROUND AND PROCEDURAL HISTORY
The facts alleged in the petition and supported by other documentary submissions by the petitioner are viewed in a light most favorable to him. Porter v. Ollison, 620 F.3d 952, 956 (9th Cir. 2010).
On September 29, 2022, at approximately 8:00 a.m., a USP-Tucson corrections officer noticed inmate Gary Kachina acting suspicious in front of unit B-1. (Doc. 12-1 at 18.) The officer summoned Kachina and conducted a pat down search. (Id.) While being searched, Kachina dropped a square piece of white paper wrapped in a trash bag on the ground. (Id.) Kachina was then escorted to the Lieutenant's office, where a Special Investigative Services (SIS) technician conducted a NIK test on the piece of paper. (Id.) The test was positive for amphetamines and Kachina was issued an incident report. (Id.)
Kachina denies that he dropped a piece of paper while being searched and asserts that video footage would show that he did not drop anything on the ground, that the officer did not pick up anything while searching him, and that the officer allowed him to leave the area after the search. (Doc. 1 at 4.)
Narcotics Identification Kit. Torres v. Fed. Bureau of Prisons, No. 2:19-CV-2015 DB P, 2020 WL 469347, at *2 (E.D. Cal. Jan. 29, 2020), report and recommendation adopted, No. 2:19-cv-2015, 2020 WL 4287575 (E.D. Cal. July 27, 2020).
The day after the incident, Kachina received a copy of the incident report, which described Kachina's possession of narcotics. (Id. at 18.) He was advised of his rights and given the opportunity to make a statement. (Id. at 20.) Kachina asserted that he “didn't do it” and to “[c]heck the camera.” (Id.) Upon receipt of the incident report, Kachina did not request witnesses or provide evidence in his own defense. (Id.)
Two days after the incident, the Unit Discipline Committee (UDC) held a hearing on Kachina's disciplinary infraction. (Id. at 19.) At the hearing, Kachina reiterated that “[he] didn't do it,” and to “[p]lease check the camera as the report isn't accurate.” (Id.) The UDC committee chairman referred the charge to the Discipline Hearing Officer (DHO) for further disposition. (Id.) The chairman also advised Kachina of his right to file an appeal within 20 calendar days. (Id.)
Twelve days after the incident, a hearing in front of the DHO was held. (Doc. 12-1 at 13.) Kachina was present at the hearing and waived his right to a staff representative. (Id.) He again denied the charges and said, “The whole report is a lie. That's not the way it happened. I didn't drop anything.” (Id.) Kachina did not call any witnesses and failed to produce any supporting documentary evidence. (Id.)
Kachina was found guilty of illegal drug possession based upon the incident report, adequate notice of the disciplinary hearing, photographs from the incident report, and a staff memorandum attached to the report. (Id. at 14.) The DHO also reviewed all available video footage, which only showed “minimal view of part of the incident.” (Id. at 15.) The DHO determined that Kachina dropped something on the ground during a pat search, the substance tested positive for amphetamines, a NIK Indentidrug Chart verified the positive test result, Kachina failed to provide any evidence supporting his position, and the greater weight of the evidence supported the charge. (Id.) The DHO found no reason to question the validity of the reporting officer. (Id.)
Kachina was sanctioned with the loss of 41 days of good conduct time, among other disciplinary measures. (See id. at 16.) He also received a copy of the DHO report, which outlined the DHO's findings. (Id. at 17.)
On November 20, 2023, Kachina filed the § 2241 petition at hand. (Doc. 1.) On March 27, 2024, the Government filed its return and answer. (Doc. 12.) Kachina failed to file a reply. This report and recommendation follows.
LEGAL STANDARD
A district court may grant habeas relief when a petitioner is in custody in “violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Generally, motions to contest the legality of a sentence are filed under § 2255 in the sentencing court, while petitions that challenge the manner, location, or conditions of a sentence's execution are brought under § 2241 in the custodial court. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). An inmate may obtain relief under § 2241 for the loss of good time credits if the prison disciplinary proceeding did not comply with due process. Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989), overruled on other grounds by Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016) (en banc). This is because the loss of good time credits may affect the duration of the inmate's confinement. See Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973) (ruling that inmates' suit seeking restoration of good time credits was “within the core of habeas corpus in attacking the very duration of their physical confinement”). A petitioner bears the burden of proving that he is being held contrary to constitutional mandates by a preponderance of the evidence. Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011); Lambert v. Blodgett, 393 F.3d 943, 969 n.16 (9th Cir. 2004).
DISCUSSION
Kachina brings the petition at hand asserting four grounds for habeas relief. (Doc. 1 at 4-7.) He contends that: (i) he was denied the right to present documentary evidence in the form of incident video footage and NIK test kit instructions; (ii) the evidence presented at his disciplinary hearing did not meet the “some evidence” standard, including whether the drug test administrator was certified to conduct the testing; (iii) the drug test was incorrectly administered, which resulted in a false positive; and (iv) the DHO was biased and suppressed evidence. (Id.) The Court finds that Kachina was afforded adequate due process in each of these areas and that he fails to carry his burden in proving otherwise. The Magistrate Judge recommends that Kachina's petition be denied.
I. Due Process Requirements
“Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Where a prison disciplinary hearing may result in the loss of good time credits, the inmate must receive: “(1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action.” Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985).
Inherent in an inmate's right to present evidence in his defense is a right to access the evidence that will be presented against him, although the right to access evidence may be limited by prison officials for legitimate penological reasons. Melnik v. Dzurenda, 14 F.4th 981, 985-87 (9th Cir. 2021). When disciplinary findings result in the revocation of good time credits, due process requires that “some evidence” in the record support the findings. Hill, 472 U.S. at 454. “Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence.” Id. at 455 (emphasis added). “Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary [official].” Id. at 455-56.
A. Presentation of Documentary Evidence Permitted
In Kachina's first ground for habeas relief, he contends that he was not allowed to present video footage of the incident and that he was denied permission to present NIK test instructions. (Doc. 1 at 4.) But the administrative record belies these claims. Instead, the record demonstrates that Kachina never asked to present NIK test instructions, (see Doc. 12-1 at 14, 19-20); that the “DHO viewed [all] available video footage,” (id. at 15); and that “CCTV showed minimal view of part of the incident and there was no other CCTV footage available for the entire[t]y of the incident,” (id.). Moreover, footage of the incident was far from exculpatory as Kachina claims, as the record indicates that the footage showed nothing more than Kachina “being gestured toward the unit wall area.” (Doc. 12-1 at 15.) As such, Kachina fails to demonstrate that he was denied the ability to present documentary evidence, see Williams v. Thomas, 492 Fed.Appx. 732, 734 (9th Cir. 2012) (affirming, in part, denial of § 2241 petition where disciplinary officer reviewed requested alleged exculpatory video evidence), and his first ground for habeas relief should be denied.
B. Some Evidence Standard Met
Kachina next alleges that his due process rights were violated because the evidence presented at his disciplinary hearing failed to meet the “some evidence” standard. (Doc. 1 at 5.) He adds that the failure to prove that the individual who conducted the NIK drug test used against him was certified also violated his due process rights. (Id.) The Court disagrees and declines Kachina's invitation to reweigh the evidence or independently assess the SIS technician's credibility. It finds that “some evidence” supports the DHO's determination that Kachina possessed illegal drugs and that the revocation of 41 days of good conduct time did not violate due process requirements.
Under the “some evidence” standard, the reviewing court does not “examine the entire record, independently assess witness credibility, or reweigh the evidence; rather, the relevant question is whether there is any evidence in the record that could support the conclusion.” Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003) (cleaned up). The test is “minimally stringent,” and “evidence only must bear some indicia of reliability to be considered some evidence.” Castro v. Terhune, 712 F.3d 1304, 1314 (9th Cir. 2013). Additionally, “[e]vidence may qualify as some evidence even if it does not logically preclude any conclusion but the one reached.” Id.
Here, there is more than some evidence in the record to support the DHO's conclusion. The record indicates that: (i) a uniformed USP-Tucson corrections officer personally witnessed Kachina drop a piece of white paper on the ground during a routine patdown search; (ii) the piece of paper was tested by an SIS technician, and the test came back positive for amphetamines; (iii) photos taken of the tested paper and the positive NIK test accompanied the verified result; (iv) video evidence failed to demonstrate that the paper was not Kachina's; and (v) Kachina failed to offer any witnesses or evidence that called into question the DHO's findings. (See Doc. 12-1 at 18-20, 23-25.)
Moreover, the certification status of the SIS technician is outside the scope of due process considerations in prison disciplinary proceedings and does not affect the Court's conclusion that some evidence supports the DHO's findings. See Baker v. Lake, No. 1:18-cv-1642, 2019 WL 1455326, at *4 (E.D. Cal. Apr. 2, 2019), affd, 793 Fed.Appx. 585 (9th Cir. 2020) (denying the petitioner's request to reweigh the NIK evidence presented to the DHO and determining that there was “some evidence” to support the DHO's decision). Accordingly, Kachina's second ground for habeas relief should be denied.
C. Reweighing of Evidence Not Permitted
In Kachina's third ground for habeas relief, he introduces “newly discovered evidence” in the form of an alleged Identidrug Chart and invites the Court to reweigh the evidence that was presented to the DHO. (Docs. 1 at 6; 4 at 3.) Kachina asserts that the chart demonstrates that the drug test was incorrectly administered and that he is actually innocent of the disciplinary charge. (Doc. 1 at 6.) The Court is not persuaded by Kachina's black-and-white chart, which it cannot use to reweigh the evidence and lacks any indicia of reliability. See Hill, 472 U.S. at 456 (“The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact.”). Additionally, due process does not guarantee a right to outside testing or to re-testing of positive drug samples. Koenig v. Vannelli, 971 F.2d 422, 423 (9th Cir. 1992); see also Jackson v. Shartle, 2019 WL 1795593, at *3 (D. Ariz. Mar. 13, 2019), report and recommendation adopted, No. CV-17-526, 2019 WL 1816687 (D. Ariz. Apr. 24, 2019) (“Petitioner was made aware that the SIS technician tested the strips and found them positive for amphetamines, and so no additional testing was necessary.”).
More importantly, as stated earlier, it is not the role of the Court to reweigh the evidence presented to the DHO to determine whether prison disciplinary proceedings comported with due process requirements. See Syrue v. Thompson, No. 1:19-cv-1289, 2020 WL 3640276, at *3 (E.D. Cal. July 6, 2020), report and recommendation adopted, 2020 WL 7186097 (E.D. Cal. Dec. 7, 2020) (denying petitioner's assertion that the SIS technician misinterpreted NIK drug test results because he failed to submit supporting evidence that the SIS technician erred). The record reflects that a memorandum was composed by the SIS technician who conducted the drug examination in question and that the memorandum constitutes reliable indicia that the DHO correctly concluded that Kachina committed the prohibited act of possessing drugs/alcohol. (See Doc. 12-1 at 15.)
The memorandum states:
On September 29, 2022, I, SIS Technician K. Moran, conducted a NIK Test of a white square piece of paper covered in an unknown substance. The substance tested was recovered from inmate Kachina, Gary, Reg. No. 18427041. The NIK Test process showed a positive reading for Amphetamines utilizing NIK Test “A”, “U", and “W”. Specifically, NIK Test “A” indicated an immediate orange color rapidly turning to a brown color indicating Amphetamine-Type compounds. Following the NIK Test Color Chart, a test was conducted utilizing NIK Test “U”. NIK Test “U” developed into an immediate “burgundy”. NIK Test “W” developed a “yellow” color indicating Amphetamines. Utilizing the “NIK Identidrug Chart” provided with the Test Kit, this is a verified positive NIK Test result for Amphetamines.(Doc. 12 -1 at 23.) The Court finds that the memorandum and photos of the positive testing samples, in addition to the corroborating testimony of the ticketing corrections officer, constitutes some evidence to support the DHO's conclusion that Kachina possessed amphetamines in violation of prison policy. Accordingly, Kachina's third ground for habeas relief should be denied.
D. Unbiased Decision Maker
In Kachina's final ground for habeas relief, he asserts that he was denied due process due to an impartial hearing officer. (Doc. 1 at 7.) He states that the hearing officer was biased and suppressed evidence of his innocence by falsely claiming that she could not review video of the incident because of a blind spot in front of the unit in which he was searched. (Id.) Kachina also claims that the officer suppressed evidence that the NIK test instructions were not followed and that the actual results were negative for amphetamines. (Id.) The Court concludes that Kachina fails to present any persuasive evidence supporting these allegations and recommends that his final ground for habeas relief be denied.
Courts in this circuit have concluded that due process requires that inmates are entitled to a fair and impartial decisionmaker at prison disciplinary hearings. See, e.g., Gauthier v. Dexter, 573 F.Supp.2d 1282, 1287 (C.D. Cal. 2008) (citing Edwards v. Balisok, 520 U.S. 641, 647 (1997). BOP regulations also require that the “DHO will be an impartial decision maker who was not a victim, witness, investigator, or otherwise significantly involved in the incident.” 28 C.F.R. § 541.8. “There is a presumption of honesty and integrity on the part of [prison] decision makers which may be overcome by evidence of a risk of actual bias or prejudgment based on special facts and circumstances.” Strawderman v. Ives, No. 3:18-CV-00609, 2018 WL 5284221, at *2 (D. Or. Sept. 14, 2018), report and recommendation adopted, No. 3:18-CV-00609, 2018 WL 5284194 (D. Or. Oct. 24, 2018) (cleaned up). Bias is only shown when a decision maker relies upon knowledge outside the prison disciplinary proceedings or displays “deep-seated and unequivocal antagonism that would render fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555-56 (1994).
Kachina fails to offer evidence that the DHO was a victim, witness, investigator, or otherwise involved in his disciplinary incident. (See Doc. 1 at 7.) He also fails to offer evidence that the DHO relied upon evidence outside of the disciplinary proceedings or evidence that demonstrates deep-seated and unequivocal antagonism in finding that he committed the disciplinary offense as charged. Accordingly, Kachina's fourth ground for habeas relief should be denied and this case dismissed.
RECOMMENDATION
The Magistrate Judge recommends that the District Judge deny the Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1) and dismiss with prejudice this case. Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen (14) days of being served with a copy of this Report and Recommendation, and a party may respond to another party's objections within (14) days after being served with a copy. No replies shall be filed unless leave is granted by the District Judge. If objections are filed, the parties should use the following case number: 23-CV-531-RM. Failure to file timely objections to any of the Magistrate Judge's factual or legal determinations may result in waiver of the right of review. The Clerk of Court is instructed to send a copy of this Report and Recommendation to all parties.