(HC) Perez v. Arviza

[8] UNITED STATES DISTRICT COURT [9] EASTERN DISTRICT OF CALIFORNIA [10] 11 YORYI PEREZ, Case No. 1:23-cv-01341-SAB-HC 12 Petitioner, FINDINGS AND RECOMMENDATION TO DENY RESPONDENT’S MOTION TO 13 v. DISMISS, GRANT PETITIONER’S MOTION TO REITERATE JURISDICTION, 14 M. ARVIZA, AND DENY PETITION FOR WRIT OF HABEAS CORPUS 15 Respondent. (ECF Nos. 10, 13) [16] ORDER DIRECTING CLERK OF COURT 17 TO RANDOMLY ASSIGN DISTRICT JUDGE [18] 19 Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 20 U.S.C. § 2241 . 21 I. 22 BACKGROUND 23 At the time the instant petition was filed, Petitioner was in the custody of the Federal 24 Bureau of Prisons (“BOP”) at the Federal Correctional Institution in Mendota, California (“FCI 25 Mendota”), serving his 78-month sentence after being convicted of conspiracy to transport and 26 move an alien into the United States.1 (ECF No. 1 at 1; ECF No. 10 at 2.2) At FCI Mendota, [27] 1 Petitioner has since been released from BOP custody. (ECF Nos. 13, 14.) 1 Petitioner was charged with possessing a hazardous tool, in violation of BOP Code 108, on April 2 23, 2023. (App. 4, 20–22.3) On May 23, 2023, the Disciplinary Hearing Officer (“DHO”) held a 3 hearing and found Petitioner violated BOP Code 108. (App. 5, 12–13.) 4 On September 11, 2023, Petitioner filed the instant petition for writ of habeas corpus, 5 asserting the following claims for relief: (1) evidence does not support the DHO’s findings; (2) 6 lack of translation assistance at the DHO hearing; and (3) the BOP’s misapplication of the 7 DHO’s sanction. (ECF No. 1.) Respondent filed a motion to dismiss the petition for 8 nonexhaustion, but also argued that the petition should be denied on the merits. (ECF No. 10.) 9 As Petitioner did not receive a copy of the motion to dismiss, (ECF No. 11), the Court mailed a 10 copy of the motion to dismiss to Petitioner and granted him an extension of time to file a 11 response, (ECF No. 12). Petitioner subsequently filed a motion to reiterate jurisdiction, arguing 12 that this Court maintains subject-matter jurisdiction over the petition even when Petitioner is 13 released from BOP custody. (ECF No. 13.) However, to date, Petitioner has not filed an 14 opposition or statement of nonopposition to the motion to dismiss, and the time for doing so has 15 passed. 16 II. 17 DISCUSSION 18 A. Mootness 19 The Court has “an independent duty to consider sua sponte whether a case is moot.” 20 Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir. 2004) (citing Dittman v. California, 191 F.3d 21 1020, 1025 (9th Cir. 1999)). Article III of the United States Constitution limits the jurisdiction of 22 federal courts to “actual, ongoing cases or controversies.” Lewis v. Continental Bank Corp., 494 23 U.S. 472, 477 (1990). “This case-or-controversy requirement subsists through all stages of 24 federal judicial proceedings,” which “means that, throughout the litigation, the plaintiff ‘must 25 have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be 26 redressed by a favorable judicial decision.’” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting [27] 3 “App.” refers to the Appendix filed by Respondent. (ECF No. 10-1.) Appendix page numbers refer to the page 1 Lewis, 494 U.S. at 477). Therefore, once a “convict’s sentence has expired . . . some concrete 2 and continuing injury other than the now-ended incarceration or parole—some ‘collateral 3 consequence’ of the conviction—must exist if the suit is to be maintained.” Spencer, 523 U.S. at 4 7. Courts “have been willing to presume that a wrongful criminal conviction has continuing 5 collateral consequences,” id. at 8 , but the Ninth Circuit has “decline[d] to apply the presumption 6 of collateral consequences to prison disciplinary proceedings,” Wilson v. Terhune, 319 F.3d 477 , 7 481 (9th Cir. 2003). 8 In Nonnette v. Small, 316 F.3d 872 (9th Cir. 2002), a prisoner brought a civil rights 9 action pursuant to 42 U.S.C. § 1983 challenging a disciplinary proceeding that resulted in the 10 revocation of 360 days of good-time credits and 100 days of administrative segregation. The 11 district court held that Heck v. Humphrey, 512 U.S. 477 (1994), precluded the prisoner from 12 maintaining his § 1983 action because his claims necessarily challenged the validity of the 13 disciplinary proceeding, which had not been set aside. Nonnette, 316 F.3d at 874 . At the time of 14 the appeal, Nonnette had been released from incarceration and was on parole. Because no 15 collateral consequences attended Nonnette’s deprivation of good-time credits, the Ninth Circuit 16 found “that if he now filed a petition for habeas corpus attacking the revocation of his good-time 17 credits and the imposition of administrative segregation . . . , his petition would have to be 18 dismissed for lack of a case or controversy because he has fully served the period of 19 incarceration that he is attacking.” Nonnette, 316 F.3d at 876 . The Ninth Circuit therefore 20 concluded that “in these circumstances, a § 1983 claim may be maintained.” Id. 21 Here, Petitioner asserts that because “the BOP has arbitrarily taken 82 days of his good 22 conduct time a judgment [in] his favor would entitl[e] him to a reduction of his supervise[d] 23 release.” (ECF No. 13 at 1.) Petitioner argues that the Court still maintains jurisdiction over the 24 petition despite his release from custody, citing to Allen v. Ives, 950 F.3d 1184 (9th Cir. 2020). 25 In Allen, the petitioner filed a § 2241 petition, asserting that he was actually innocent of his 26 sentence as a career offender. Id. at 1186. After the Ninth Circuit heard oral argument, the 27 sentencing court reduced Allen’s sentence to time served, ordered his immediate release, and 1 the appeal was not moot because “[i]f we hold that the district court in Oregon had jurisdiction 2 over Allen’s § 2241 petition, and if Allen is held to be actually innocent of having been a career 3 offender, there is a nontrivial possibility that the district court in Connecticut will reduce his term 4 of supervised release under § 3583(e).”4 Allen, 950 F.3d at 1187 . Allen, in turn, cited to Mujahid 5 v. Daniels, 413 F.3d 991, 995 (9th Cir. 2005), and United States v. D.M., 869 F.3d 1133 , 1137 6 (9th Cir. 2017). In Mujahid, the petition challenged the BOP’s “interpretation of the maximum 7 good time credit a federal prisoner can receive under 18 U.S.C. § 3624 (b).” 413 F.3d at 993 . In 8 finding the petition was not moot, the Ninth Circuit relied on precedent holding that “[t]he 9 ‘possibility’ that the sentencing court would use its discretion to reduce a term of supervised 10 release under 18 U.S.C. § 3583 (e)(2) was enough to prevent the petition from being moot.” Id. at 11 995 (citing Gunderson v. Hood, 268 F.3d 1149, 1153 (9th Cir. 2001)). In D.M., the defendant 12 appealed the denial of his motion for a sentence reduction under 18 U.S.C. § 3582 (c)(2). D.M., [13] 869 F.3d at 1135 . Although D.M. had been released from prison, he had been sentenced to five 14 years of supervised release, and the Ninth Circuit found that “the appeal is not moot because the 15 district court may modify D.M.’s term of supervised release.” Id. at 1137 . 16 The Court notes that Allen, Mujahid, and D.M. are distinguishable from the instant 17 matter because the petitioners in those cases were not challenging the length of their sentences 18 based on the loss of credits revoked through a disciplinary proceeding. Although Nonnette found 19 that no collateral consequences attended the petitioner’s deprivation of credits revoked through a 20 disciplinary proceeding after he was released from incarceration and on parole, Nonnette is 21 distinguishable because it involved a state prisoner who was not subject to a period of supervised 22 release that could be modified pursuant to 18 U.S.C. § 3583 (e). The Court finds that the instant 23 matter is more akin to Allen, Mujahid, and D.M. given that Petitioner is subject to a period of 24 supervised release, and “[t]he ‘possibility’ that the sentencing court would use its discretion to 25 reduce a term of supervised release under 18 U.S.C. § 3583 (e)(2) [i]s enough to 26 /// [27] 4 “18 U.S.C. § 3583(e) authorizes a district court to terminate the period of supervised release after one year ‘if it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice.’” Allen, 1 prevent the petition from being moot.” Mujahid, 413 F.3d at 995 . Accordingly, the Court should 2 grant Petitioner’s motion to reiterate jurisdiction. 3 B. Exhaustion 4 Respondent argues that the petition should be dismissed for failure to exhaust 5 administrative remedies. (ECF No. 10 at 3.) Petitioner contends that the Court should deem he 6 exhausted administrative remedies because he submitted his appeal on the appropriate form and 7 never received any response or notification. (ECF No. 1 at 9.) 8 “As a prudential matter, courts require that habeas petitioners exhaust all available 9 judicial and administrative remedies before seeking relief under § 2241.” Ward v. Chavez, 678 10 F.3d 1042, 1045 (9th Cir. 2012) (citations omitted). However, because it is not a jurisdictional 11 prerequisite, exhaustion can be waived if pursuing administrative remedies would be futile. Id. 12 There is a two-level review process for appeals of DHO disciplinary proceedings. DHO appeals 13 are submitted initially to the Regional Director using a BP–10 form. 28 C.F.R. §§ 542.14 (d)(2), 14 542.15(a). “The inmate may appeal an adverse decision by the Regional Director to the 15 Central Office (also called the General Counsel) of the BOP using a BP–11 form. The BP–11 16 must be submitted to the Central Office within 30 calendar days from the date of the Regional 17 Director’s decision.” Nunez v. Duncan, 591 F.3d 1217 , 1219–20 (9th Cir. 2010) (citing 28 18 C.F.R. § 542.15 (a)). 19 The record before the Court reflects that Petitioner filed an appeal at the Regional Level, 20 Regional Administrative Remedy Appeal 1169992-R1, that was denied on August 22, 2023. 21 (App. 26.) Petitioner filed an appeal to the Central Office, dated September 20, 2023, that was 22 denied on October 16, 2023. (App. 27–28.) The Court recognizes that Petitioner exhausted his 23 administrative remedies after filing the instant petition. However, given that Petitioner has in fact 24 exhausted his administrative remedies and Respondent has addressed the merits of the petition, 25 the Court finds that judicial economy will be better served by adjudicating Petitioner’s claims on 26 the merits. Accordingly, the Court recommends that the motion to dismiss the petition for 27 nonexhaustion be denied. 1 C. Merits Analysis 2 1. Due Process Protections in Prison Disciplinary Proceedings 3 “The Supreme Court established in Wolff v. McDonnell that there are procedural due 4 process rights that a prisoner must be afforded in the context of a prison disciplinary proceeding 5 prior to being deprived of a protected liberty interest.” Melnik v. Dzurenda, 14 F.4th 981 , 985 6 (9th Cir. 2021). However, “[p]rison disciplinary proceedings are not part of a criminal 7 prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” 8 Wolff v. McDonnell, 418 U.S. 539, 556 (1974). The minimum procedural requirements that 9 must be met are: (1) written notice of the charges; (2) at least 24 hours between the time the 10 prisoner receives written notice and the time of the hearing, so that the prisoner may prepare his 11 defense; (3) a written statement by the fact finders of the evidence they rely on and reasons for 12 taking disciplinary action; (4) the right of the prisoner to call witnesses in his defense, when 13 permitting him to do so would not be unduly hazardous to institutional safety or correctional 14 goals; and (5) assistance to the prisoner where the prisoner is illiterate or the issues presented are 15 legally complex. Id. at 563–71. 16 In addition, “some evidence” must support the decision of the hearing officer, 17 Superintendent v. Hill, 472 U.S. 445, 455 (1985), and the evidence must have some indicia of 18 reliability, Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987). The “some evidence” standard is 19 not particularly stringent. “Ascertaining whether this standard is satisfied does not require 20 examination of the entire record, independent assessment of the credibility of witnesses, or 21 weighing of the evidence. Instead, the relevant question is whether there is any evidence in the 22 record that could support the conclusion reached by the disciplinary board.” Hill, 472 U.S. at 23 455–56. 24 2. Some Evidence 25 In his first claim for relief, Petitioner asserts that the evidence does not support the 26 DHO’s findings. Specifically, Petitioner argues that the incident report states that the USB 27 charging cable was found in cell 227 while Petitioner was assigned to cell 224, and the DHO 1 USB charging cable does not meet the elements required for a violation of disciplinary code 2 section 108. (ECF No. 1 at 5.) 3 With respect to Petitioner’s assertion that he was assigned to cell 224 and the DHO 4 erroneously concluded that Petitioner was assigned to cell 227 where the charging cable was 5 found, the Court finds that Petitioner’s assertion is mistaken. BOP records reflect that at the time 6 of the incident, Petitioner was assigned to cell 227. (App. 29.) Although the incident report states 7 that the USB charging cable was found in cell 227 and Petitioner was assigned to cell 224, this 8 appears to be a clerical error. With respect to Petitioner’s assertion that a USB charging cable 9 does not meet the elements required for a violation of BOP Code 108, the Court does not find 10 Petitioner’s argument persuasive. “[C]ourts have upheld an inmate’s discipline under Code 108 11 for possession of a cell phone and/or a cell phone charger[.]” Douglas v. Zickefoose, No. CIV. 12 11-406 JBS, 2012 WL 266364 , at *15 (D.N.J. Jan. 27, 2012) (collecting cases). Accordingly, 13 habeas relief is not warranted on this ground. 14 3. Lack of Translation Assistance 15 In his second claim for relief, Petitioner asserts that his due process rights were violated 16 because he does not understand or speak English and was not provided an interpreter at the 17 disciplinary hearing. (ECF No. 1 at 19–21.) It is unclear the extent to which due process may 18 require the assistance of an interpreter at a prison disciplinary proceeding. See Urmancheev v. 19 Ndoh, No. 1:21-cv-00255-JLT-HBK, 2023 WL 8478024 , at *5 (E.D. Cal. Dec. 7, 2023), 20 findings and recommendations adopted, 2024 WL 1660740 (E.D. Cal. Apr. 17, 2024); 21 Encarnacion-Montero v. Sanders, No. LA CV 12-05262-VBF, 2014 WL 3751940 , at *6 (C.D. 22 Cal. July 29, 2014). Even assuming due process so requires, Petitioner has not established that he 23 needed an interpreter. The DHO report reflected that the DHO “ensured the inmate understood 24 the due process rights and was prepared to proceed with the disciplinary hearing.” (App. 4, 13.) 25 DHO Omar Gonzalez also declared: 26 Nothing in my report indicates that I had any questions about Petitioner’s ability to understand my questions or any other aspect of the proceedings, or that 27 Petitioner requested an interpreter at any point in the proceedings. Had Petitioner requested an interpreter, I speak fluent Spanish and would have conducted the 1 with Petitioner as documented in my June 16, 2023, Report, that Petitioner understood enough English to be able to proceed with the hearing in a meaningful 2 fashion. 3 (App. 4.) 4 Additionally, as noted by Respondent, “there is no suggestion in the record from prior 5 unit disciplinary proceedings that Petitioner expressed any inability to understand,” Petitioner’s 6 Regional Administrative Remedy Appeal and Central Office Administrative Remedy Appeal are 7 written in English without any statement that they were prepared with assistance of another 8 person, and “Petitioner did not raise this fundamental error claim until his Central Office 9 Administrative Remedy Appeal (BP11),” which raises questions about the credibility of 10 Petitioner’s claim that he cannot understand or speak English. (ECF No. 10 at 7.) 11 Upon review of the petition and the motion to reiterate jurisdiction, Petitioner 12 demonstrates that he has a sufficient grasp of his claims and the legal issues involved and that he 13 is able to clearly articulate those claims in English. There is no indication that the petition or 14 motion were prepared with the assistance of another person. See Urmancheev, 2023 WL 15 8478024, at *5–6 (finding there was insufficient evidence prisoner needed an interpreter in 16 disciplinary proceeding given that prisoner’s “pleadings have articulated sophisticated legal 17 concepts in good English and provide detailed descriptions of the prison legal proceedings at 18 which he purportedly needed assistance” and thus inferring that prisoner “was adequately able to 19 understand the applicable disciplinary proceedings and did not suffer a due process violation due 20 to lack of assistance or translation”). 21 Moreover, Petitioner does not demonstrate how he was prejudiced by the absence of an 22 interpreter. See Felix v. Ayala, No. CV 18-3524-JLS (GJS), 2019 WL 2090707 , at *4 (C.D. Cal. 23 Jan. 29, 2019) (“Numerous federal courts have held that asserted constitutional errors in 24 connection with disciplinary hearings are subject to harmless error review.”), findings and 25 recommendations accepted, 2019 WL 2089490 (C.D. Cal. May 10, 2019); Gabai v. Jacoby, 800 26 F. Supp. 1149 , 1156 (S.D.N.Y. 1992) (holding that “the failure to provide plaintiff with a 27 Hebrew interpreter at his [prison disciplinary] hearing in no way violated his rights under the Due Process Clause” in part because plaintiff did “not set forth how, if at all, he was prejudiced 1 by the denial of an interpreter”). The petition states: 2 Had I been able to understand what was going on, I would have pointed out the obvious favorable facts: 1. That the USB cable was found in cell 227 while I was 3 assigned to cell 224; 2. That a USB cable does not qualify as escape paraphernalia or an actual cell phone as the DHO erroneously concluded; 3. That the light 4 fixture can only be open with a special tool that only staff members have access to it. [5] 6 (ECF No. 1 at 21.) However, as noted in section II(C)(1), supra, (1) BOP records reflect that at 7 the time of the incident, Petitioner was assigned to cell 227 and the incident report’s reference 8 was cell 224 was a clerical error; and (2) courts have upheld an inmate’s discipline under Code 9 108 for possession of a cell phone charger. With respect to Petitioner’s assertion that he would 10 have pointed out that the light fixture could only be opened with a special tool accessible only to 11 staff members, “[t]he Federal Constitution does not require evidence that logically precludes any 12 conclusion but the one reached by the disciplinary board. Instead, due process in this context 13 requires only that there be some evidence to support the findings made in the disciplinary 14 hearing.” Hill, 472 U.S. at 457 . Accordingly, habeas relief is not warranted on this ground. 15 4. DHO Bias 16 Petitioner claims that the DHO was biased, making a “decision without any regard of the 17 truth or at least provid[ing Petitioner] with the opportunity to defend” himself. (ECF No. 1 at 18 19.) “The due process requirements for a prison disciplinary hearing are in many respects less 19 demanding than those for criminal prosecution, but they are not so lax as to let stand the decision 20 of a biased hearing officer who dishonestly suppresses evidence of innocence.” Edwards v. 21 Balisok, 520 U.S. 641, 647 (1997). To prevail on a claim of disciplinary hearing officer bias, a 22 petitioner must show that the officer “present[ed] such a hazard of arbitrary decisionmaking that 23 it should be held violative of due process of law.” Wolff, 418 U.S. at 570 . The Court finds that 24 Petitioner has not shown that the hearing officer presented such a hazard of arbitrary 25 decisionmaking or dishonestly suppressed evidence of innocence. As set forth in section II(C)(2), 26 supra, Petitioner’s “favorable facts” that he alleges he would have raised had he purportedly 27 understood what was going on do not demonstrate prejudice and some evidence supported the 1 5. Sanction 2 In his third claim for relief, Petitioner asserts that the BOP misapplied the DHO’s 3 sanction, arguing that the DHO’s sanction only referred to a forfeit of forty-one days of non4 vested good conduct time and does not refer to statutory good conduct time. (ECF No. 1 at 7–8.) 5 However, the sanctions listed in the DHO report include both “DIS GCT 41 DAYS” and “FF 6 NVGCT 41 DAYS.” (App. 14.) Further, in his declaration, DHO Omar Gonzalez states that he 7 “imposed the following sanctions for the Code 108 violation: Disallow 41 days Good Conduct 8 Time (GCT) . . . Forfeit 41 days Non-vested Good Conduct Time (NVGCT) . . .” (App. 5.) 9 Accordingly, the BOP did not misapply the sanction imposed by the DHO, and Petitioner is not 10 entitled to habeas relief on this ground. 11 III. 12 RECOMMENDATION & ORDER 13 Accordingly, the Court HEREBY RECOMMENDS that: 14 1. Respondent’s motion to dismiss for nonexhaustion (ECF No. 10) be DENIED; 15 2. Petitioner’s motion to reiterate jurisdiction (ECF No. 13) be GRANTED; and 16 3. The petition for writ of habeas corpus be DENIED. 17 Further, the Clerk of Court is DIRECTED to randomly assign this action to a District 18 Judge. 19 This Findings and Recommendation is submitted to the assigned United States District 20 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 21 Rules of Practice for the United States District Court, Eastern District of California. Within 22 THIRTY (30) days after service of the Findings and Recommendation, any party may file 23 written objections with the court and serve a copy on all parties. Such a document should be 24 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 25 objections shall be served and filed within fourteen (14) days after service of the objections. The 26 assigned United States District Court Judge will then review the Magistrate Judge’s ruling 27 pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within 1 | Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 2 | Cir. 1991)). [3] 4 IT IS SO ORDERED. FA. ee 5 | Dated: _ May 23, 2024 ‘ UNITED STATES MAGISTRATE JUDGE ;