The opinion
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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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)
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ORDER DIRECTING CLERK OF COURT
17 TO RANDOMLY ASSIGN DISTRICT
JUDGE
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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,
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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
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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
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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.
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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 non-
4 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)).
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4 IT IS SO ORDERED. FA. ee
5 | Dated: _ May 23, 2024
‘ UNITED STATES MAGISTRATE JUDGE
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