Arellano v. Benov
| Decision Date | 26 March 2014 |
| Docket Number | Case No. 1:13-cv-00558 AWI MJS (HC) |
| Court | U.S. District Court — Eastern District of California |
| Parties | JUAN LUIS ARELLANO, Petitioner, v. MICHAEL L. BENOV, Administrator, Respondent. |
Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Petitioner raises two claims challenging a disciplinary hearing in which he suffered a loss of good time credit. First, he asserts that the Disciplinary Hearing Officer ("DHO"), an employee of a privately-run correctional institution, did not have authority to discipline him. Second, he asserts that his right to due process was violated when discipline was imposed by the DHO since the DHO was not an independent and impartial decision-maker. (Pet. at 3, ECF No. 1.)
Petitioner filed his petition on April 18, 2013. Respondent filed an answer to the Petition on July 25, 2013. (Answer, ECF No. 16.) Petitioner filed a traverse to the answer on August 15, 2013. (Traverse, ECF No. 18.)
Petitioner is serving an aggregated 158-month term of imprisonment for various offenses involving the possession and distribution of methamphetamine. (See Decl. of Jennifer Vickers ("Vickers Decl.") ¶ 2, Attach. 1.) On March 14, 2008, Petitioner arrived at Taft Correctional Institution ("TCI") in Taft, California, for service of a federal term of imprisonment. TCI is a "federal facility operated by a private company."1 Since that time, Pettioner has received six incident reports resulting in the loss of 147 days of good conduct time.
Specifically, on August 28, 2010, Petitioner was found with a black cord split with two exposed wires attached to a headphone jack and a memory chip. For the wires and headphone jack, Petitioner was charged with a violation for possession of something not authorized. On October 7, 2010, a disciplinary hearing was held and Petitioner was found to have commited the prohibited act and was sanctioned a loss of 13 days good conduct time. (Id.) For the memory card, Petitioner was charged with possession of a hazardous tool. On October 14, 2010, a disciplinary hearing was held and Petitioner was found to have commited the prohibited act and was sanctioned a loss of 40 days good conduct time. (Id.)
On August 31, 2010, Petitioner was found with a piece of paper with a bank account number and admitted to gambling. He was charged with giving money or a thing of value to another inmate or person without staff authorization. On October 7, 2010, a disciplinary hearing was held and Petitioner was found to have commited the prohibited act and was sanctioned a loss of 13 days good conduct time. (Id.)
On September 9, 2010, Petitioner received an incident report for use of thetelephone for abuses other than criminal activity. On October 7, 2010, a disciplinary hearing was held and Petitioner was found to have commited the prohibited act and was sanctioned a loss of 27 days good conduct time. (Id.)
On December 23, 2010, Petitioner was overheard engaging in a three-way telephone conversation and received an incident report for use of the telephone for abuses other than criminal activity. On Jaunary 27, 2011, a disciplinary hearing was held and Petitioner was found to have commited the prohibited act and was sanctioned a loss of 13 days good conduct time. (Id.)
Finally, on May 14, 2012, Petitioner admitted that he had possessed a cellphone and he was given an incident report for possession of a hazardous tool. On June 14, 2012, a disciplinary hearing was held and Petitioner was found to have commited the prohibited act and was sanctioned a loss of 41 days good conduct time. (Id.)
In the case of each of the disciplinary hearings, the DHO's report and findings were reviewed by Bureau of Prisons ("BOP") staff, the findings were certified, and the recommended sanctions were imposed. Petitioner challenges the results of each hearing by claiming that the DHO was not authortized to impose sanctions because regulations governing disciplinary hearings authorize only BOP staff to sanction inmates. He also claims that the DHO was not impartial.
Writ of habeas corpus relief extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. Writ of habeas corpus relief is available if a federal prisoner can show he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Petitioner's claims are proper under 28 U.S.C. § 2241 and not 28 U.S.C. § 2255 because they concern the manner, location, or conditions of the execution of Petitioner's sentence and not the fact of Petitioner's conviction or sentence. Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir.1990) (); Montano-Figueroa v. Crabtree, 162 F.3d 548, 549 (9th Cir. 1998).
Further, Petitioner is challenging the execution of his sentence at TCI in Taft, California, which is within the Fresno Division of the Eastern District of California; therefore, the Court has jurisdiction over this petition. See Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990).
II. REVIEW OF THE PETITION
"As a prudential matter, courts require that habeas petitioners exhaust all available judicial and administrative remedies before seeking relief under § 2241."2 Ward v. Chavez, 678 F.3d 1042, 1045-1046 (9th Cir. 2012). The exhaustion requirement in § 2241 cases is not required by statute nor a "jurisdictional" prerequisite. It is a prudential limit on jurisdiction and can be waived "if pursuing those [administrative] remedies would be futile." Id.; Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds, Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006); Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993).
Petitioner did not appeal and exhaust his administrative remedies regarding the disciplinary findings. Petitioner argues, however, that any administrative appeal would have been futile since the outcome was based on a BOP policy. (Traverse at 3.) A March 30, 2007, BOP memorandum regarding inmate discipline at private operated facilities authorized private prison employees to serve as DHOs and discipline inmates. (Decl. of Jennifer Vickers ("Vickers Decl.") ¶ 4, ex. 6.) Administrative appeals presenting a challenge to the authority of an employee of a private prison have been denied based on the 2007 memorandum. See e.g., Garcia v. Benov, E.D. Cal. Case No. 1:13-cv-00550-LJO-JLT, ECF No. 13-1 at 40-42; Torres-Sainz v. Benov, E.D. Cal. Case No. 1:13-cv-00896-LJO-SKO, ECF No. 14-1 at 32-36; Kasirem v. Benov, E.D. Cal. Case No.1:13-cv-01026-LJO-MJS, ECF No. 13-1 at 35-38.3 Because any attempt to exhaust administrative remedies would be denied based on the BOP memorandum authorizing private prisons to conduct disciplinary proceedings, exhaustion is futile. Ward v. Chavez, 678 F.3d at 1045-1046 (); see also McCarthy v. Madigan, 503 U.S. 140, 148 (1992), (superseded by statute) (Exhaustion not required where the administrative body is shown to be biased or has otherwise predetermined the issue before it.). In light of the futility of pursuing administrative remedies, the exhaustion requirement is waived, and the Court shall review the merits of the petition.
Petitioner, in his first claim, asserts that the DHO lacked authority to discipline Petitioner as the DHO was not an employee of the BOP as required by applicable Federal Regulations. As described above, Petitioner was found to have committed six disciplinary infractions while at Taft Correctional Institution. Of the six disciplinary findings at issue, five of the hearings occurred prior to the revision of the regulations on June 20, 2011. 76 Fed. Reg. 11078 (March 1, 2011). Accordingly, the Court shall separately analyze the claims relating to the five disciplinary proceedings under the previous regulation and then analyze the last disciplinary proceeding under the current regulations.
In support of his claim, Petitioner relies on a recent unpublished Ninth Circuit case in which the same DHO that disciplined Petitioner was found to lack authority under the previous version of the regulation to sanction inmates. See Arredondo-Virula v. Adler, 510 Fed. Appx. 581, 582 (9th Cir. 2013). The Ninth Circuit held:
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