Higa v. Warden

• Decision Date: 27 April 2020
• Docket Number: CIV. NO. 19-00664 LEK-WRP
• Parties: BRYAN HIGA, Plaintiff, v. HIROMICHI KOBAYASHI WARDEN, Defendant.
• Court: United States District Courts. 9th Circuit. United States District Court (Hawaii)

BRYAN HIGA, Plaintiff, v. HIROMICHI KOBAYASHI WARDEN, Defendant.

CIV. NO. 19-00664 LEK-WRP

UNITED STATES DISTRICT COURT DISTRICT OF HAWAII

April 27, 2020

ORDER DENYING PETITION UNDER 28 U.S.C. § 2241 FOR A WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

Before the Court is pro se Petitioner Bryan Higa's ("Higa") Petition under 28 U.S.C. § 2241 for a Writ of Habeas Corpus ("Petition"), filed on December 13, 2019. [Dkt. no. 1.] Respondent Hiromichi Kobayashi, Warden ("Warden Kobayashi") filed his answer to the Petition ("Answer") on February 10, 2020, and Higa filed his reply in support of the Petition ("Reply") on February 21, 2020. [Dkt. nos. 4, 5.] The Reply includes a request for judicial notice, and Warden Kobayashi filed his position statement regarding the request on March 12, 2020. [Dkt. no. 7.] Higa's Petition is hereby denied, and a certificate of appealability is also denied, for the reasons set forth below.

BACKGROUND

In December 2007, Higa was sentenced to 220 months of imprisonment, consisting of 100 months for conspiracy to obstruct interstate commerce by robbery, to be served consecutively to 120 months for using, carrying, and discharging a firearm during and in relation to the robbery. [United States v. Higa, CR 06-00395 DKW, Judgment in a Criminal Case, filed 12/10/07 (dkt. no. 97), at 1-3.] The 100-month term was to run concurrently with Higa's 100-month sentence for conspiracy to possess with intent to distribute five grams or more of methamphetamine in another case. [United States v. Higa, CR 07-00104 DAE, Judgment in a Criminal Case, filed 12/11/07 (dkt. no. 58), at 1-2.] At all times relevant to the Petition, Higa has been serving his sentence at the Federal Detention Center in Honolulu ("FDC Honolulu"), which is operated by the Federal Bureau of Prisons ("BOP"). [Petition, Statement of Uncontestable Facts ("Higa Decl.") at ¶ 1.] His projected release date is February 11, 2022. [Answer, Decl. of Brian Puukila ("Puukila Decl.") at ¶ 6c.¹]

The Petition arises from the following events. On April 28, 2019, Higa called his brother, Crayton Higa("Crayton"), and asked Crayton to find out whether Higa's girlfriend, "Syna," would be visiting Higa that afternoon. [Higa Decl. at ¶¶ 2, 5-6.] Crayton was unable to reach Syna at that time. Later the same day, Higa called Crayton on his black telephone and asked him to call Syna again. Crayton called Syna on his gold telephone and put that call on speakerphone, while still on the black telephone with Higa. [Id. at ¶¶ 7-9.] Higa states: "After a brief conversation, (31 seconds) with Syna, which I did not, nor could have taken part in, [Crayton] hung up and relayed her answer to me." [Id. at ¶ 10.] The contemporaneous calls between Higa and Crayton and Crayton and Syna will be referred to as "the Incident." Higa emphasizes that the two telephone lines were never connected during the Incident. [Id. at ¶ 11.]

On May 2, 2019, High received an Incident Report, which "alleg[ed] the conduct described above constituted 'a three-way call' under BOP Policy Code 297." Id. at ¶ 12; see also Petition, dkt. no. 1-2 (Incident Report).² Higa asked Crayton to send pictures of the two telephones displaying their call logs so that Higa could show that two separate telephonelines were used during the Incident. Higa also asked Crayton to write a letter explaining what happened. Higa Decl. at ¶ 14; see also Petition, dkt. no. 1-3 (letter to Higa from Crayton regarding the Incident ("Crayton Letter")), dkt. no. 1-4 (photograph of black telephone showing incoming call on 4/28/19 at 11:58), dkt. no. 1-5 (photograph of gold telephone showing outgoing calls on 4/28/19 at 11:58 and 11:12), dkt. no. 1-6 (photograph of two telephones, side by side).³

A disciplinary hearing was held on May 20, 2019. According to Higa, he brought the documentary evidence to the hearing and attempted to submit it in his defense. However, DHO Puukila refused to look at Higa's evidence. [Higa Decl.at ¶¶ 16-18.] Higa was found guilty of violating Code 297 and lost fourteen days of good time credit. Id. at ¶ 19; Petition, dkt. no. 1-7, at 1-3 (Discipline Hearing Officer Report ("Higa DHO Report")). Higa's position is that he is actually innocent of the code violation because Crayton used two separate telephone lines that were never connected, and therefore Higa did not participate in a three-way, or third-party, call. [Higa Decl. at ¶¶ 20-21.]

Higa submitted a Regional Administrative Remedy Appeal form, dated June 9, 2019. [Petition, dkt. no. 1-7, at 4-5.] The Regional Director denied Higa's appeal on July 16, 2019. [Id. at 6.] Higa submitted a Central Office Administrative Remedy Appeal form, dated August 8, 2019. [Id. at 7-8.] The Administrator of National Inmate Appeals denied Higa's appeal on October 25, 2019. [Id. at 9.]

In the instant Petition, Higa argues: the DHO violated Higa's due process rights when he refused to consider Higa's evidence in the disciplinary proceedings ("Ground One"); there is no evidence to support the finding that Higa violated Code 297 ("Ground Two"); Higa could not have violated Code 297 because a 2011 amendment to the applicable regulation removed the term "third-party calling" ("Ground Three"); and Code 297 is unconstitutionally vague ("Ground Four"). Higa seeks an order requiring the BOP to expunge the Incident from his record and to restore his good time credits.

Warden Kobayashi presents evidence that, prior to the DHO hearing, Higa had a unit disciplinary committee ("UDC") review. During the UDC review, Higa said he asked Crayton what time Syna was going to visit, and Crayton decided to call her. The UDC referred the matter to DHO Puukila. [Puukila Decl. at ¶ 9.]

DHO Puukila does not have a specific recollection of Higa's hearing. [Id. at ¶ 12.] However, based on the Higa DHO Report, DHO Puukila states: he reviewed Higa's due process rights with Higa; Higa understood those rights; Higa acknowledged receipt of the Incident Report; Higa waived the right to have a staff representative at the hearing; Higa waived the right to present witnesses and evidence; and DHO Puukila noted Higa did not have any documentary evidence to submit. [Id. at ¶¶ 10-11.] DHO Puukila states his "normal course of business when [he] conduct[s] DHO hearings is to consider any documentary evidence an inmate presents to [him] for [the inmate's] defense." [Id. at ¶ 12.] The presentation of such evidence would be noted in the report and, because the Higa DHO Report states Higa waived the right to present evidence, Puukila is "confident that [Higa] did not present any documentary evidence at his DHO hearing." [Id. at ¶¶ 12-13.] "Based on the greater weight of the evidence," which included Higa's statements to DHO Puukila, Higa's statements to the investigator who initially looked into the Incident, and Higa's statements to the UDC, DHO Puukila "decided that [Higa] violated Code 297, Telephone Abuse Other than Criminal Activity." [Id. at ¶¶ 14-15.] In addition to the loss of good time credits, Higa lost three months of telephone privileges. [Id. at ¶ 16.] Warden Kobayashi acknowledges that Higa exhausted his administrativeremedies as to these disciplinary proceedings. See id. at ¶ 21; Answer at 7. However, Warden Kobayashi argues all four grounds asserted in the Petition fail on the merits.

STANDARD

This district court has stated:

When a federal . . . prisoner contends that he "is in custody in violation of the Constitution or laws or treaties of the United States," § 2241 confers a general grant of habeas jurisdiction. 28 U.S.C. § 2241(a) and (c)(3). A district court considering an application for a writ of habeas corpus shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243.

. . . .

"Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for writ of habeas corpus, 28 U.S.C. § 2254, and a complaint under . . . 42 U.S.C. § 1983." Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam). Habeas relief extends to a prisoner in custody under the authority of the United States. See 28 U.S.C. § 2241. A petitioner challenging the manner, location, or conditions of the execution of his sentence must file a petition for writ of habeas corpus under 28 U.S.C. § 2241. See, e.g., United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 19[8]0) (distinguishing between a § 2255 petition, which tests the imposed sentence, with a § 2241, which tests the sentence "as it is being executed"). "Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus." Muhammad, 540 U.S. at 750 (citation omitted); Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir.2016) (en banc) (holding that a prisoner's claims are within the core of habeas corpus if they challenge the fact or duration of his conviction or sentence).

Schulze v. Fed. Bureau of Prisons, CIVIL NO. 19-00669 JAO-WRP, 2019 WL 7038254, at *1-2 (D. Hawai`i Dec. 20, 2019) (some alterations in Schulze) (footnote omitted).

Because the issues raised in Higa's Petition are legal issues that can be conclusively decided based on the parties' submissions, an evidentiary hearing is not necessary. See Anderson v. United States, 898 F.2d 751, 753 (9th Cir. 1990) (per curiam) ("because the record conclusively shows that petitioner is not entitled to habeas corpus under 28 U.S.C. § 2241, no evidentiary hearing was required"). Higa's request for an evidentiary hearing, [Petition at 9,] is therefore denied.

DISCUSSION

I. Judicial Notice

In the Reply, Higa asks this Court to take judicial notice of the following:

FACT 1: Higa was specifically charged in this matter with being involved in "a three-way call," in violation of Code 297. See Indecent [sic]

...