challenging content of 19 inaccurate pre-sentence report used to deny parole
How later courts described this case
- challenging content of 19 inaccurate pre-sentence report used to deny parole
- contending time spent in state custody should be credited toward federal custody
- asserting petitioner should be housed at a community treatment center
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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11 RAUL DAVID ALVARADO, Case No. 1:19-cv-01283-SKO (HC)
12 Petitioner, ORDER DIRECTING CLERK OF COURT
TO ASSIGN DISTRICT JUDGE
13 v.
FINDINGS AND RECOMMENDATION TO
14 DENY PETITION FOR WRIT OF HABEAS
CORPUS
15 C. BURCH, Warden,1
[30-DAY OBJECTION DEADLINE]
16 Respondent.
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18 Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition
19 for writ of habeas corpus pursuant to 28 U.S.C. § 2241. He is currently in the custody of the
20 Bureau of Prisons (“BOP”) at the United States Penitentiary in Atwater, California. He
21 challenges a disciplinary hearing in which he was found guilty of violating BOP Code 112 for
22 use of illicit drugs in a prison facility, and for which he was sanctioned with a 41-day loss of
23 Good Conduct Time credits (“GCT”). (Doc. 1 at 6.)
24 Petitioner challenges the sufficiency of the evidence to find him guilty. Respondent
25 contends the evidence satisfies the constitutional standard and therefore the claim fails on the
26 merits. The Court will recommend the petition be DENIED.
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1 Christian Burch is the current acting warden at USP-Atwater. Pursuant to Fed.R.Civ.P. § 25(d), Christian Burch
1 I. BACKGROUND
2 Petitioner is currently serving a sentence of 300 months in federal prison for his 2017
3 conviction in the United States District Court for the District of Oregon of conspiracy to distribute
4 controlled substances in violation of 21 U.S.C. §§ 846; 841(a)(1); 841(b)(1)(A); 841(b)(1)(C).
5 See United States v. Alvarado, Case No. CR-15-369-JO (D.Or.2017).
6 On November 30, 2018, Petitioner was issued an incident report charging him with “Use
7 of any Drugs or Alcohol” in violation of 28 C.F.R. § 541.13, BOP Code 112. (Doc. 11-1 at 10.)
8 The reporting officer provided the following statement in the incident report:
9 On October 24, 2018 at approximately 12:20 pm in unit 3A Cell 103, I entered the
cell and observed inmate Alvarado, Raul Reg. No. 35624-086 sitting on the lower
10 bunk appearing to be under the influence of an unknown substance. The behavior
displayed by Inmate Alvarado exhibited a strange and erratic nature. He stood up
11 and was swaying from left to right, his hands were twitching uncontrollably, and
was slurring his speech. Per medical Inmate Alvarado had dilated pupils with a
12 sluggish reaction to light and was unsure of his surroundings, and has no medical
history or current prescriptions that would result in an altered mental status. Inmate
13 Alvarado was picked up by the compound officers and escorted to the LTs office
holding tank for further medical assessment. On October 25, 2018 at approximately
14 12:57 PM, INMATE ALVARADO was administered a urinalysis test. This was
sent to the lab for processing. On November 6, 2018 at 9:00 AM lab results returned
15 with negative results for the use of drugs being found. Although the lab findings
produced negative results, the lab is not designed to detect all variations synthetic
16 drug components. I identified inmate Alvarado, Raul Reg. No. 35624- 086 with his
institution photo I.D. card and the Sentry Program.
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18 (Doc. 11-1 at 11.)
19 An SIS technician responded to the cell and conducted a visual inspection. According to
20 the SIS technician,
21 ALVARADO appeared to under the influence of an unknown substance. While
making contact with ALVARADO, ALVARADO could hardly stand on his own
22 and has slurred speech. ALVARADO was asked basic questions and his response
was slow and he appeared to be incoherent. ALVARADO was asked, “What is
23 going (on)?”, ALVARADO slowly replied “nothing, just hanging out” and
appeared to be confused with a blank stare. The SIS Technician asked
24 ALVARADO when the was the last time he smoked. ALVARADO replied, “I
don’t know”. ALVARADO could not answer the SIS Technician’s request for his
25 name and register number, but would state random words, which the SIS
Technician could not understand due to ALVARADO’s slurred speech.
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27 (Doc. 11-1 at 11.)
1 evaluation of Petitioner’s physical condition. The registered nurse reported:
2 ALVARADO’s medical assessment notes that ALVARADO had dilated pupils
with sluggish reaction to light. ALVARADO was insecure of his surroundings. The
3 assessment also notes that ALVARADO has no medical history or current
prescriptions that would result in an altered mental status. The assessment
4 concludes that ALVARADO’S presentation was consistent with the use of
synthetic cannabinoids. A Urinalysis Details from Truintel notes that
5 ALVARADO’s urine sample was obtained on 10/25/2018 and sent to a lab. On
11/06/2018, the urine sample came back negative for any narcotics.
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7 (Doc. 11-1 at 11.)
8 Petitioner was charged with use of a controlled substance, specifically, synthetic narcotics.
9 He was given advanced written notice of the charge on November 30, 2018. (Doc. 11-1 at 10.)
10 A disciplinary hearing was held on December 12, 2018. (Doc. 11-1 at 10.) Petitioner denied the
11 charge at the hearing and stated that he had asthma, and due to pollen, his asthma was aggravated.
12 (Doc. 11-1 at 10.) The Disciplinary Hearing Officer (“DHO”) found Petitioner guilty as follows:
13 The DHO relied on the officer’s written report as well as other documentary
evidence; a supporting memo, a medical assessment and a Urinalysis Details report
14 from Truintel.
15 […]
16 The DHO also considered the inmate’s statement during the discipline hearing.
During the DHO hearing, ALVARADO denied the charge and stated, “I have
17 asthma. Due to the pollens, it activates my asthma even more.” The DHO
considered the exculpatory statement from ALVARDO that he did not use drugs
18 and was having an asthma attack, but deemed it less credible. The staff
representative (B. Daniel) stated, “He’s come to work and has stated that he has
19 asthma, so we sent him home a couple of times. He has had watery eyes, the inmate
states was due to his asthma.”. The staff representative confirmed that
20 ALVARADO has been sent home due to ALVARDO stating that he has asthma,
but the DHO believes that an asthma attack does not explain ALVARADO’s erratic
21 behavior and altered statement of mind. Though the incident report notes that
ALVARADO’s urinalysis came back negative, the DHO noted that the laboratory
22 is not designed to detect all variations of synthetic cannabinoids. The DHO believes
that the greater weight of the evidence shows that ALVARADO was under the
23 influence of (synthetic) narcotics that were not prescribed to him.
24 (Doc. 11-1 at 11-12.)
25 The DHO sanctioned Petitioner with, inter alia, a 41-day loss of Good Conduct Time
26 credits. (Doc. 11-1 at 12.) Petitioner was provided a copy of the decision on December 21, 2018.
27 (Doc. 11-1 at 12.)
1 Court. (Doc. 1.) On December 3, 2019, Respondent filed a response to the petition. (Doc. 16.)
2 Petitioner did not file a traverse.
3 II. DISCUSSION
4 A. Jurisdiction
5 Writ of habeas corpus relief extends to a person in custody under the authority of the United
6 States. See 28 U.S.C. § 2241. While a federal prisoner who wishes to challenge the validity or
7 constitutionality of his conviction must bring a petition for writ of habeas corpus pursuant to 28
8 U.S.C. § 2255, a petitioner challenging the manner, location, or conditions of that sentence's
9 execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. See, e.g.,
10 Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990); Capaldi v. Pontesso, 135 F.3d 1122,
11 1123 (6th Cir. 1998); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United
12 States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991). To receive relief under 28 U.S.C. § 2241
13 a petitioner in federal custody must show that his sentence is being executed in an illegal, but not
14 necessarily unconstitutional, manner. See, e.g., Clark v. Floyd, 80 F.3d 371, 372, 374 (9th Cir.
15 1995) (contending time spent in state custody should be credited toward federal custody); Jalili,
16 925 F.2d at 893-94 (asserting petitioner should be housed at a community treatment center);
17 Barden, 921 F.2d at 479 (arguing Bureau of Prisons erred in determining whether petitioner could
18 receive credit for time spent in state custody); Brown, 610 F.2d at 677 (challenging content of
19 inaccurate pre-sentence report used to deny parole).
20 Here, Petitioner challenges the execution of his sentence. Therefore, the Court has
21 jurisdiction to consider the petition pursuant to 28 U.S.C. § 2241.
22 B. Venue
23 A petitioner filing a petition for writ of habeas corpus under 28 U.S.C. § 2241 must file the
24 petition in the judicial district of the petitioner's custodian. Brown, 610 F.2d at 677. Petitioner
25 is in the custody of the Bureau of Prisons at USP-Atwater, which is located within the jurisdiction
26 of this Court. 28 U.S.C. §§ 2254(a); 2241(d). Therefore, venue is proper in this Court.
27 C. Exhaustion
1 circumstance of imprisonment must first exhaust all administrative remedies. Martinez v.
2 Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Chua Han Mow v. United States, 730 F.2d 1308,
3 1313 (9th Cir. 1984); Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). The requirement that
4 federal prisoners exhaust administrative remedies before filing a habeas corpus petition was
5 judicially created; it is not a statutory requirement. Brown v. Rison, 895 F.2d 533, 535 (9th Cir.
6 1990). Thus, “because exhaustion is not required by statute, it is not jurisdictional.” Id. If
7 Petitioner has not properly exhausted his claims, the district court, in its discretion, may either
8 “excuse the faulty exhaustion and reach the merits or require the petitioner to exhaust his
9 administrative remedies before proceeding in court.” Id.
10 Respondent does not claim that Petitioner has failed to exhaust his administrative remedies.
11 D. Review of Petition
12 Prisoners cannot be entirely deprived of their constitutional rights, but their rights may be
13 diminished by the needs and objectives of the institutional environment. Wolff v. McDonnell,
14 418 U.S. 539, 555 (1974). Prison disciplinary proceedings are not part of a criminal prosecution,
15 so a prisoner is not afforded the full panoply of rights in such proceedings. Id. at 556. Thus, a
16 prisoner’s due process rights are moderated by the “legitimate institutional needs” of a prison.
17 Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (citing Superintendent, Mass. Corr. Inst.
18 v. Hill, 472 U.S. 445, 454-455 (1984)).
19 When a prison disciplinary proceeding may result in the loss of good time credits, due
20 process requires that the prisoner receive the following procedural guarantees: (1) advance
21 written notice of at least 24 hours of the disciplinary charges; (2) an impartial hearing body; (3)
22 an opportunity, when consistent with institutional safety and correctional goals, to call witnesses
23 and present documentary evidence in his defense; and (4) a written statement by the factfinder
24 of the evidence relied on and the reasons for the disciplinary action. Hill, 472 U.S. at 454; Wolff,
25 418 U.S. at 563-567. Petitioner does not dispute that he received all procedural due process
26 guarantees.
27 Nevertheless, Petitioner asserts that the evidence was insufficient to support the guilty
1 some evidence supports the decision by the prison disciplinary board to revoke good time
2 credits.” Further, “[a]scertaining whether this standard is satisfied does not require examination
3 of the entire record, independent assessment of the credibility of witnesses, or weighing of the
4 evidence. Instead, the relevant question is whether there is any evidence in the record that could
5 support the conclusion reached by the disciplinary board.” Id. at 455-56.
6 In this case, there was at least “some evidence” to support the decision. The reporting
7 officer and an SIS technician noted that Petitioner appeared to be under the influence of a narcotic
8 based on his erratic behavior. They noted that Petitioner was swaying from side to side, had
9 slurred speech, and had uncontrollable twitching of hands. A registered nurse examined
10 Petitioner and noted no medical history or current prescriptions that would result in such an
11 altered mental stated. The registered nurse noted that Petitioner had dilated pupils with sluggish
12 reaction to light, and he was insecure of his surroundings. The nurse concluded that his behavior
13 was consistent with the use of synthetic cannabinoids. Petitioner contends that a negative urine
14 test exonerates him; however, the disciplinary hearing officer considered the test that was
15 conducted and noted that the test was limited in detecting synthetic substances. Thus, there was
16 at least some evidence supporting the guilty finding.
17 For the foregoing reasons, the Court finds that Petitioner fails to demonstrate that his due
18 process rights were violated. Wolff, 418 U.S. at 564. The petition should be denied.
19 III. ORDER
20 IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign a District
21 Judge to this case.
22 IV. RECOMMENDATION
23 The Court HEREBY RECOMMENDS that the petition for writ of habeas corpus be
24 DENIED WITH PREJUDICE.
25 This Findings and Recommendation is submitted to the assigned District Judge pursuant to
26 the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the
27 United States District Court, Eastern District of California. Within thirty (30) days after service
1 Court and serve a copy on all parties. Such a document should be captioned “Objections to
2 Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served
3 and filed within ten (10) days after service of the objections. The Court will then review the
4 Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that
5 failure to file objections within the specified time may waive the right to appeal the District
6 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
8
Sheila K. Oberto
9 Dated: January 23, 2020 /s/ .
UNITED STATES MAGISTRATE JUDGE
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