Opinion
CV-22-00549-TUC-SHR (MSA)
05-17-2023
Christopher J Ward-Malone, Petitioner, v. M. Gutierrez, Respondent.
REPORT AND RECOMMENDATION
Honorable Maria Aguilera, United States Magistrate Judge.
Petitioner Christopher Ward-Malone, a federal prisoner, seeks habeas relief under 28 U.S.C. § 2241. The Court will recommend that his petition for relief be denied.
When this case was filed, Petitioner was an inmate at the United States Penitentiary in Tucson, Arizona. He has since been transferred to a facility in Florida.
I. Background
On July 1, 2021, a corrections officer searched Petitioner's cell and found a sharpened metal object in Petitioner's locker. (Doc. 13-1 at 16, 23.) The officer wrote an incident report charging Petitioner with possession of a dangerous weapon. (Id. at 16.) Petitioner was served with a rewritten version of the report on July 4. (Id.) Based on the severity of the charge, the matter was referred to a discipline hearing officer (DHO). (Id. at 17.) Before the disciplinary hearing, Petitioner signed a form acknowledging that he had been advised of his rights. (Id. at 19.)
At the hearing, the DHO considered the incident report and a photograph of the weapon. (Id. at 13-14, 23.) Petitioner told the DHO that he was innocent, and he submitted a written statement to the same effect. (Id. at 13-14, 22.) Petitioner's staff representative informed the DHO that he had not seen any violation of Petitioner's due process rights during the disciplinary process. (Id. at 12.)
After the hearing, the DHO prepared a written report rejecting Petitioner's denials, finding him guilty, and revoking 41 days of his good conduct time. (Id. at 12-15.) Petitioner received a copy of the report on August 27, 2021. (Id. at 15.) His administrative appeals were unsuccessful, so he initiated this habeas action. (Doc. 1 at 4.)
II. Discussion
Petitioner has a liberty interest in his good conduct time, so revocation of that time must comport with due process. Wolff v. McDonnell, 418 U.S. 539, 558 (1974). Petitioner contends that he was denied due process because he was served with the rewritten incident report more than 24 hours after the weapon was found in his locker. Petitioner is wrong. The notice period required by due process is not tied to the offense conduct; it is tied to the disciplinary hearing. The petitioner must receive notice of the charges at least 24 hours before the hearing so that he has enough time “to marshal the facts and prepare a defense.” Id. at 564. Petitioner received such notice here: he was served with the incident report on July 4, 2021, and the disciplinary hearing was held on July 22, 2021. (Doc. 13-1 at 12, 16.)
Petitioner's argument is based on Federal Bureau of Prisons (BOP) policy, which provides that the prisoner “will ordinarily receive the incident report within 24 hours” of the incident. 28 C.F.R. § 541.5(a). As an initial matter, the term “ordinarily” indicates that while the BOP strives to produce the report within 24 hours, it is not required to do so. So the failure to give Petitioner the report within 24 hours was not a violation of the policy. More importantly, a violation of BOP policy does not, by itself, equate to a due process violation. Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011) (“A habeas claim cannot be sustained based solely upon the BOP's purported violation of its own program statement because noncompliance with a BOP program statement is not a violation of federal law.”). Accordingly, Petitioner's notice-based challenge fails.
In his reply brief, Petitioner contends for the first time that the BOP withheld favorable and material evidence. Recall that Petitioner received the rewritten incident report; he apparently did not receive the original report. Petitioner says that his cellmate was also charged with possession of the weapon, so there is a “high[] possibility” that the original incident report “could have stated the weapon was found within another area inside [the shared] cell . . . and not inside [his] unlock[ed] locker.”
Due process requires that the disciplinary conviction be supported by “some evidence in the record.” Superintendent v. Hill, 472 U.S. 445, 454 (1985). This is a low standard. “Ascertaining whether [it] is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Id. at 455-56. In this case, the investigating officer's rewritten statement that the weapon was in Petitioner's locker was “some evidence” of his guilt. See Chambers v. Ciolli, 19 F.4th 984, 986 (7th Cir. 2021) (per curiam) (affirming the district court's conclusion that the incident report was “some evidence” supporting the disciplinary conviction). Petitioner's conjectures about the original incident report do not undermine that conclusion. Moreover, Petitioner's cellmate was exonerated of the charge, which confirms that the evidence pointed only at Petitioner. (Doc. 15-1 at 2.)
As a final matter, due process requires that the accused receive (1) an opportunity to call witnesses and present documentary evidence, if doing so would not be inconsistent with institutional goals or safety, (2) assistance from another inmate or a staff member, if the accused is illiterate or the matter is complex, and (3) a written statement from the DHO explaining the evidence relied upon and reasons for any disciplinary action. Wolff, 418 U.S. at 564-70. The record confirms that these requirements were satisfied: (1) Petitioner was informed of, and waived, his right to call witnesses. (Doc. 13-1 at 13, 19.) He exercised his right to present documentary evidence when he submitted a written statement denying the charge. (Id. at 13, 22.) (2) Petitioner received assistance from a staff member, who appeared with him at the hearing. (Id. at 12, 21.) (3) After the hearing, Petitioner received a copy of the DHO's written report. (Id. at 15.) In the report, the DHO explained that Petitioner was convicted based on the investigating officer's statement that he had found the weapon in Petitioner's locker. (Id. at 13-14.) The DHO explained that the discipline imposed was justified based on the severity and dangerousness of the offense. (Id. at 14-15.)
III. Conclusion
Petitioner received due process. Therefore, IT IS RECOMMENDED that Petitioner Christopher Ward-Malone's petition for a writ of habeas corpus under 28 U.S.C. § 2241 (Doc. 1) be denied and dismissed with prejudice.
This recommendation is not immediately appealable to the Ninth Circuit Court of Appeals. The parties have 14 days from the date of service of this recommendation to file specific written objections with the district court. The parties have 14 days to file responses to objections. Fed.R.Civ.P. 72(b)(2). The parties may not file replies absent permission from the district court. The failure to file timely objections may result in the waiver of de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: CV-22-00549-TUC-SHR.