Hale v. Villalpando

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 DYLAN SCOTT HALE, Case No.: 21-cv-1884-JES-JLB

12 Petitioner,

ORDER:

13 v.

(1) GRANTING MOTION TO

14 ANNE E. VILLALPANDO,

DISMISS; and

15 Respondent.

(2) DISMISSING PETITION FOR

16

WRIT OF HABEAS CORPUS

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[ECF No. 37]

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20 Pending before the Court is Petitioner Dylan Scott Hale’s Amended Petition for

21 writ of habeas corpus pursuant to 28 U.S.C. § 2241. ECF No. 30 (“Amended Petition”).

22 On May 5, 2023, Respondent filed a motion to dismiss the Amended Petition. ECF No.

23 37. After obtaining an extension from the Court, on August 28, 2023, Petitioner filed a

24 response. ECF No. 45. After due consideration and for the reasons stated below, the

25 Court GRANTS the motion to dismiss and DISMISSES the petition.

26 I. BACKGROUND

27 Petitioner Hale is a former member of the United States Air Force. ECF No. 45 at

28 2. While in service, he was convicted under the Uniform Code of Military Justice

1 (“UCMJ”) for various violations and sentenced to 3,040 days of confinement. Id. At the

2 time that he filed the instant petition, he was housed at the Naval Consolidated Brig

3 Miramar (“NCBM”). Id. The allegations in the Amended Petition arise from incidents

4 during Hale’s time at NCBM. Since then, in July 2022, Hale was transferred from NCBM

5 to his current location within the Federal Bureau of Prison system at USP Marion. ECF

6 Nos. 23, 25, 26, 32.

7 The initial petition in this case was filed on November 4, 2021. ECF No. 1.

8 Respondent moved to dismiss the petition. ECF No. 10. While the motion was pending,

9 Hale filed a motion for temporary restraining order and preliminary injunction. ECF No.

10 15. The Court denied the motion for temporary restraining order and preliminary

11 injunction, and granted Respondent’s motion to dismiss without prejudice, permitting

12 Hale to amend his petition. ECF Nos. 19, 27. On February 26, 2023, Hale filed the

13 Amended Petition, the currently operative petition. ECF No. 30. Respondent then filed

14 the instant motion to dismiss the Amended Petition. ECF No. 37.

15 The Amended Petition brings allegations related to three separate disciplinary

16 proceedings brought against Hale at NCBM.

17 A. DR 029-21

18 The first disciplinary proceeding involved an incident between Hale and another

19 NCBM prisoner, Lattin, that occurred on March 18, 2021. Amended Petition ¶ 7. Hale

20 alleges that Lattin used homophobic slurs against him. Id.; ECF No. 37-2 at 13-14. In

21 response, Hale exchanged words with Lattin. ECF No. 37-2 at 13-14. A physical

22 altercation took place between the two, and Lattin punched and kicked Hale. Amended

23 Petition ¶ 7; ECF No. 37-2 at 12-14.

24 As a result, Hale was initially issued DR 029-21 for assault. Amended Petition ¶ 8.

25 This charge was later dismissed, and he was recharged with provoking words and

26 gestures, disorderly conduct, and conduct which threatens. Id.; ECF No. 37-2 at 14-15,

27 22-23. Hale pled guilty to the provoking words and gestures charge, but not guilty to the

28 rest. Amended Petition ¶ 8; ECF No. 37-2 at 25. He was found guilty of all three charges

1 after his Disciplinary and Adjustment Board (“D&A Board”) hearing. Id. at 25-28. As a

2 result, he lost good conduct time of 30 days and given disciplinary segregation of 14

3 days, which was suspended for 180 days. Id. at 28. Hale appealed the decision, but the

4 appeal was denied for “insufficient grounds.” Id. at 28, 30-39.

5 B. DR 033-21

6 The second disciplinary proceeding involved an incident between Hale and another

7 NCBM prisoner, Jewell, that occurred on April 1, 2021. Amended Petition ¶ 11. Hale

8 states that he was ascending a stairwell after a workout and was “not paying attention and

9 [] accident[ally] hit shoulders” with Jewell. Id.; ECF No. 37-2 at 56. Jewell and Hale

10 exchanged words, and Hale stated that he “made a hand gesture” to him. Id. In the

11 investigative notes for the incident, it was noted that video footage was reviewed and

12 showed Hale “deliberately hitting shoulders” with Jewell, Jewell is noted to have been

13 upset and seen yelling at Hale, and Hale made a “puppet”-like hand gesture to Jewell. Id.

14 As a result of this altercation, Hale was charged with assault consummated by

15 battery and conduct that threatens. Amended Petition ¶ 13; ECF No. 37-2 at 57. He pled

16 not guilty to both counts. ECF No. 37-2 at 66. The assault consummated by battery

17 charge was dismissed, but he was found guilty of the conduct that threatens charge and

18 also the additional charge of physical contact, which was listed as a lesser included

19 charge of assault. Id. at 69. As a result, he lost good conduct time of 30 days (with 15 of

20 those days suspended for 180 days), extra duty for 14 days, and the 14 days of

21 disciplinary segregation which has been suspended from DR 029-21 was vacated. Id.

22 Hale appealed the decision, but the appeal was also denied for “insufficient grounds.” Id.

23 at 69, 71-77.

24 C. DR 089-21

25 The third disciplinary proceeding also involved Hale and Lattin from DR 029-21.

26 As a result of the previous physical altercation, on April 1, 2021, the NCBM issued a “No

27 Contact” order to both Hale and Lattin, ordering both to “refrain from contact,” that they

28 must keep a distance of 15 feet from each other, “refrain from all communication . . .

1 includ[ing] attempting third party communications and non-verbal communication.” ECF

2 No. 37-2 at 84, 88.

3 Hale alleges that after he received no redress from NCBM regarding the previous

4 altercation, he filed civil proceedings against Lattin in the Superior Court of California.

5 Amended Petition ¶ 16. He alleges that he was required by the small claims court to send

6 a pre-litigation demand letter, stating his cause of action and proposed settlement, to

7 Lattin’s attorney. Id. ¶ 17. On June 1, 2021, he sent a letter to Lattin’s counsel stating that

8 he is acting pro se in a case for assault and battery against Lattin and demanded a

9 settlement amount. ECF No. 37-2 at 90.

10 On June 28, 2021, Lattin filed a complaint against Hale for violating the No

11 Contact order based on this letter. ECF No. 37 at 93-95. As a result, Hale was charged

12 with Violation of a No-Contact Order, Extortion, Provoking Words or Gestures, and

13 Unauthorized Use of Mail or Telephone. ECF No. 37-2 at 99-100. He pled not guilty to

14 all charges, and was found guilty of violation of the No Contact order, extortion, and

15 authorized use of mail/phone, while the provoking words and gestures charge was

16 dismissed. Id. at 114.

17 Hale filed a complaint over this proceeding, arguing for example, that the NCBM

18 failed to adhere to the 24-hour notice requirement for the hearing and that certain officers

19 involved were not impartial. ECF No. 37-2 at 119-22. The Commanding Officer set aside

20 the previous hearing results based on the lack of 24 hour notice, and Hale was given a

21 new board meeting. Id. at 119.

22 In the new hearing, he was charged with the same four charges. He pled guilty to

23 the charge of violation of No Contact order. ECF No. 37-2 at 131. He pled not guilty to

24 extortion and provoking words and gestures, and those charges were dismissed against

25 him. Id. He also pled not guilty to unauthorized use of mail or telephone, but was found

26 guilty. Id. He received 18 days of segregation, which was already served, loss of good

27 conduct time of 15 days, and the 15 days suspended from DR 029-21 was reinstated. Id.

28 at 133. Hale again appealed, but the appeal was denied on insufficient grounds. Id. at 133,

1 137-39. 71-77.

2 II. LEGAL STANDARDS

3 Petitioner brings this petition under 28 U.S.C. § 2241, which authorizes a prisoner

4 to file a writ of habeas corpus when he is “in custody in violation of the Constitution or

5 laws or treaties of the United States.” Section § 2241 “vests federal courts with

6 jurisdiction over applications for habeas corpus from persons confined by the military

7 courts.” Burns v. Wilson, 346 U.S. 137, 139 (1953).

8 As this Court previously recognized, Rule 4 of the Rules Governing Section 2254

9 cases states that “[i]f it plainly appears from the petition and any attached exhibits that

10 the petitioner is not entitled to relief in the district court, the judge must dismiss the

11 petition and direct the clerk to notify the petitioner.” Rule 4 has also been applied to

12 Section 2241 habeas petitions. See Lane v. Feather, 584 F. App’x 843 (9th Cir. 2014)

13 (finding no error when district court applied Rule 4 to Section 2241 habeas petition);

14 Rules Governing Section 2254 Cases, Rule 1(b) (indicating that district courts may apply

15 Rules Governing Section 2254 Cases to Section 2241 petitions). Rule 4 dismissal is

16 appropriate “when on the face of the petition it is obvious that the petition lacks merit.”

17 Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998) (quoting Gutierrez v. Griggs,

18 695 F.2d 1195, 1198 (9th Cir. 1983)). “Conclusory allegations which are not supported

19 by a statement of specific facts do not warrant habeas relief.” James v. Borg, 24 F.3d 20,

20 26 (9th Cir. 1994).

21 In disciplinary proceedings, a prisoner does not receive “the fully panoply of rights

22 due a [criminal] defendant.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (noting that

23 courts must balance “institutional needs and objectives” and “provisions of the

24 Constitution). Where a state has “provided a statutory right to good time but also

25 specifies that it is to be forfeited only for serious misbehavior,” a prisoner may assert a

26 liberty interest under the Fourteenth Amendment that “entitle him to those minimum

27 procedures appropriate under the circumstances and required by the Due Process Clause

28 to insure that the state-created right is not arbitrarily abrogated.” Id. at 557. Thus, where a

1 prison disciplinary hearing may result in the loss of good time credits, a prisoner must

2 receive:

3 (1) advance written notice of the disciplinary charges; (2) an opportunity,

when consistent with institutional safety and correctional goals, to call

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witnesses and present documentary evidence in his defense; and (3) a written

5 statement by the factfinder of the evidence relied on and the reasons for the

disciplinary action.

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7 Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985). In

8 addition, the “the findings of the prison disciplinary board [must be] supported by some

9 evidence in the record.” Id. The court expressly declined to “adopt a more stringent

10 evidentiary standard” and clarified that this “some evidence” standard is met “if there

11 was some evidence from which the conclusion of the administrative tribunal could be

12 deduced.” Id. at 455 (citation omitted). Specifically, “[a]scertaining whether this standard

13 is satisfied does not require examination of the entire record, independent assessment of

14 the credibility of witnesses, or weighing of the evidence.” Id. Further, it does not require

15 “evidence that logically precludes any conclusion but the one reached by the disciplinary

16 board.” Id. at 457.

17 III. DISCUSSION

18 The Amended Petition raises several grounds as to why the disciplinary hearings

19 did not comport with due process: (1) the charge for “conduct which threatens” is

20 unconstitutionally vague; (2) he was charged with a new charge outside his presence after

21 the disciplinary hearing; (3) he did not have an impartial officer preside over the

22 disciplinary proceedings; (4) he was denied adequate opportunity to confer with counsel

23 in DR 029-21; (5) the written statements from the hearing officers did not meet the

24 requirement under Wolff and Hill; and (6) he was prejudiced during DR 089-21 by the

25 officer imposing a charge on him “without rational basis.” ECF No. 30.

26 A. Ground One: Conduct which Threatens

27 Petitioner’s first ground is that the “Conduct which Threatens” violation, charged

28 against him in both D 029-21 and DR 033-21, is unconstitutionally vague.

1 The Ninth Circuit has permitted vagueness challenges to prison regulations. Castro

2 v. Terhune, 712 F.3d 1304, 1310-11 (9th Cir. 2013) (assuming without deciding void for

3 vagueness doctrine applies to prison disciplinary regulations). “A statute is void for

4 vagueness when it does not sufficiently identify the conduct that is prohibited.” United

5 States v. Makowski, 120 F.3d 1078, 1080-81 (9th Cir. 1997); Kashem v. Barr, 941 F.3d

6 358, 371 (9th Cir. 2019) (the regulation must “giv[e] a person of ordinary intelligence fair

7 notice of what is prohibited”) (internal quotation marks omitted).

8 A regulation survives a void for vagueness challenge if it is defined “ [1] with

9 sufficient definiteness that ordinary people can understand what conduct is prohibited and

10 [2] in a manner that does not encourage arbitrary and discriminatory enforcement.”

11 Kolender v. Lawson, 461 U.S. 352, 357 (1983); Castro, 712 F.3d at 1311. Courts have

12 required a plaintiff to show that the regulation meets both prongs of the test above as

13 applied to his own conduct. Castro, 712 F.3d at 1311; Vill. of Hoffman Ests. v. Flipside,

14 Hoffman Ests., Inc., 455 U.S. 489, 495 (1982) (“A plaintiff who engages in some conduct

15 that is clearly proscribed cannot complain of the vagueness of the law as applied to the

16 conduct of others. A court should therefore examine the complainant’s conduct before

17 analyzing other hypothetical applications of the law.”). The purpose behind this

18 requirement is that “(1) individuals should not be punished for behavior they could not

19 have known was illegal; (2) vague laws allow arbitrary and discriminatory enforcement;

20 and (3) vague laws may have a chilling effect on free speech.” Lane v. Salazar, 911 F.3d

21 942, 950 (9th Cir. 2018).

22 Here, the charge for “Conduct which Threatens” is defined further in the

23 Department of the Navy Corrections Manual as follows: “Any conduct which interferes

24 with the orderly running, safety, good order and discipline, or security of the [Military

25 Correctional Facility].” ECF No. 37-3 at 106. Several other courts have evaluated

26 whether similarly-drafted prison regulations are unconstitutionally vague and reached

27 different conclusions, with the point of distinction being whether the specific conduct

28 underlying the charge puts the prisoner on notice that the conduct was prohibited.

1 Courts have found such regulations unconstitutionally vague where the prisoners

2 had no notice that their conduct was prohibited. See, e.g., Adams v. Gunnell, 729 F.2d

3 362 (5th Cir.1984) (regulation prohibiting “conduct which disrupts the orderly running of

4 the Institution” was unconstitutionally vague where prisoners’ conduct consisted of

5 signing a petition alleging that black inmates were denied opportunities to participate in

6 certain programs because “no inmate could have known [that conduct] was against prison

7 rules”); Richardson v. Coughlin, 763 F. Supp. 1228, 1234 (S.D.N.Y. 1991) (surviving

8 summary judgment on whether a regulation stating that “inmates shall not engage in

9 conduct which disturbs the order of the facility” was vague against prisoner conduct of

10 gathering signatures for petition).

11 In contrast, many courts have found these regulations constitutional where the

12 conduct was clearly prohibited. See, e.g., Hicks v. Fed. Bureau of Prisons, No. 16-3907,

13 2017 WL 3468368, at *2 (6th Cir. June 5, 2017) (regulation prohibiting “[c]onduct which

14 disrupts or interferes with the security or orderly running of the institution” was not

15 unconstitutionally vague where prisoner should have known that threatening a unit

16 manager would interfere with the orderly running of the institution); Shah v. Quintana,

17 No. 17-5053, 2017 WL 7000265, at *2 (6th Cir. July 17, 2017) (holding same as to same

18 regulation where prisoner used prison work computer to improperly access government

19 accounts and servers); Moore v. Pepe, 45 F.3d 423 (1st Cir. 1995) (regulation prohibiting

20 “conduct which disrupt[ed] or interfere[d] with the security or orderly running of the

21 institution” was not vague where prisoner should have known that his conduct—aiding

22 another inmate to type a note falsely inculpating other inmates—would be disruptive and

23 would come under this disciplinary standard); Isby-Israel v. Finnan, 347 F. App’x 253,

24 254-55 (7th Cir. 2009) (regulation prohibiting “disorderly conduct: exhibiting disruptive

25 and/or violent conduct which disrupts the security of the facility or other area in which

26 the offender is located” was not vague where prisoner threw a food tray); Culp v.

27 O’Brien, No. 87-3068-O, 1989 WL 47812, at *3 (D. Kan. Apr. 21, 1989) (regulation

28 prohibiting “conduct which disrupts the security of the segregation unit” was not vague

1 where prisoner in one instance attempted to obtain illegal contraband and in other

2 instance encouraged other inmates to yell and kick their doors to disrupt a disciplinary

3 proceeding because they were acts of “clear disobedience and illegality that carried their

4 own warning of wrongdoing”).

5 In a case where it was less apparent that the conduct was wrongful, a court

6 nevertheless upheld the statute on vagueness grounds. In Friedman v. Hemingway, No.

7 21-10185, 2022 WL 1410696, at *2-3 (E.D. Mich. May 4, 2022), the prisoner was found

8 in possession of a battery pack and cord for charging a portable phone. He was charged

9 with two counts, one that prohibited “possession of . . . a tool . . . hazardous to

10 institutional security or personal safety; e.g., . . . portable telephone, pager, or other

11 electronic device” and another one that prohibited “[c]onduct which disrupts or interferes

12 with the security or orderly running of the institution.” Id. The court noted that “[p]rison

13 regulations do not need to be as clear as criminal statutes” and found that both statutes

14 provided fair warning that a battery pack and cord were prohibited. Id.

15 Thus, in order to evaluate the vagueness challenge, the Court considers the conduct

16 at issue and evaluates whether the prisoner should have known that it was prohibited. In

17 DR 029-21, even though the evidence was clear that Lattin was the instigator of the

18 physical assault against Hale, Hale admitted to exchanging words with Lattin, including

19 insults, vulgarities, and name-calling. ECF No. 37-2 at 13. Based on this conduct, Hale

20 was also charged with Provoking Words or Gestures, which is defined to prohibit

21 prisoners from “us[ing] provoking, insulting, threatening, indecent, lewd, racially-

22 charged, sexual orientation or improper language or gestures toward another prisoner.”

23 Id. at 14. In DR 033-21, the investigative report indicated that the video footage of the

24 incident between Hale and the other prisoner Jewell showed Hale walking in the middle

25 of the stairs and “deliberately hitting shoulders” with Jewell. Id. at 57. There were

26 witness statements that said that Hale did not deliberately make contact with Jewell, id. at

27 56, but also a witness statement that Hale “shoulder checked [] Jewell aggressively on the

28 stairwell after [] Jewell had already moved over.” Id. at 63. Thus, the conduct at issue

1 here—using provocative words and intentional physical contact with another prisoner—

2 fall in the category of behavior that a reasonable prisoner should know is prohibited and

3 in violation of prison regulations.1 Accordingly, the Court finds that the regulation is not

4 unconstitutionally vague and finds no error on this ground.

5 B. Ground Two Lesser Included Offense

6 Petitioner’s second ground for relief is that in DR 033-21, he was denied due

7 process when he was charged with a new charge after the D&A Board hearing.

8 In this proceeding, he was initially charged with two charges: (1) Assault

9 Consummated by Battery; and (2) Conduct which Threatens. ECF No. 37-2 at 61, 66. He

10 was found guilty of Conduct which Threatens and not guilty of the assault charge. Id. at

11 66. The reviewing officer found Hale guilty of another rule violation for Physical

12 Contact—noting it as a “less included charge – in place of Assault Consummated by

13 Battery.” Id. at 69. Hale argues that this violates due process because the additional

14 charge was imposed against him outside his presence and without an opportunity for him

15 to be heard on the charge.

16 The Navy’s Corrections Manual related to the approving reviewer provides for the

17 following:

18 (10) Approving Authority Review. All D&A board recommendations will be

forwarded to the approving authority (see article 3201.1c of this manual) via

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a reviewer. The role of the reviewer is to ensure the board was conducted per

20 policy and procedures, that the action taken conforms to MCF regulations,

and to provide a recommendation to the approving authority. Neither the

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reviewer nor the approving authority is limited by, or bound to, the

22 recommendations of the board. The approving authority may reduce or

reverse the D&A board findings and increase or decrease recommended

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disciplinary actions deemed necessary. Approved D&A board

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1 Hale appears to make the additional argument in his response that the Conduct which Threatens charge

26 should have been dismissed by the D&A Board because he was simultaneously found guilty of other

charges that are narrower and encompass the conduct at issue. ECF No. 45 at 13. However, this practice

27 of charging a conduct that threatens charge along with a narrower charge is commonplace, as can be

discerned from the various cases cited in this discussion section. Hale provides no legal citation for why

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1 recommendations are ordered into immediate execution without regard to

appeal action. All actions, including previously imposed punishments, will

2

run concurrently. Deferment of any punishments is not authorized. A copy

3 of the disciplinary results will be provided to the prisoner with any security

concerns redacted.

4

5 ECF No. 37-3 at 103 (emphasis added).

6 Generally, what is required for the notice requirement under Wolff is that “written

7 notice of the charges must be given to the disciplinary-action defendant in order to inform

8 him of the charges and to enable him to marshal the facts and prepare a defense. At least

9 a brief period of time after the notice, no less than 24 hours, should be allowed to the

10 inmate to prepare for the appearance before the Adjustment Committee.” Wolff, 418 U.S.

11 at 564. Thus, courts have found that notice to the prisoner that detail a “full statement of

12 the incident, which detailed the date, time, place, and actions at issue” is sufficient, even

13 where the prisoner faces a different lesser included offense at the hearing. Id.; see also

14 Jones v. Virga, No. 2:12-CV-1138 LKK GGH, 2013 WL 6383248, at *11 (E.D. Cal. Dec.

15 5, 2013) (no violation as long as notice provided “the date, time, place, and facts at

16 issue”); Rodriquez v. Williams, No. 20-3255, 2020 WL 8767931, at *1 (6th Cir. Nov. 12,

17 2020) (no violation even where offenses required different elements for conviction as

18 long as “both charges are based on same facts”); Portee v. Vannatta, 105 F. App’x 855,

19 856 (7th Cir. 2004) (“advance notice of the facts underlying the original charge provides

20 adequate notice to the inmate that he could be subject to a lesser charge based on those

21 same facts”); Turner v. Warden, No. 3:18-CV-34-PPS-MGG, 2019 WL 1332177, at *3

22 (N.D. Ind. Mar. 21, 2019) (“when an inmate is sufficiently notified of the factual basis for

23 a charge, he is also on notice that he could face another charge based on the same set of

24 facts”); Walters v. Gonzalez, No. 2:15-CV-57, 2016 WL 704967, at *2 (S.D. Tex. Feb.

25 23, 2016) (“The notice must be directed to the conduct at issue—the date, time, and event

26 alleged to be a violation of the rules. What is important is that the prisoner have notice of

27 the facts upon which the claim is based.”).

28 Under this principle, all the cases cited by both Hale and Respondent approve of

1 the hearing officer finding the prisoner guilty of a lesser included offense even when it

2 had not been charged on the initial notice. Rivera, 2013 WL 1010534, at *1 (C.D. Cal.

3 Feb. 8, 2013) (finding no violation where prisoner was found not guilty of being under

4 the influence of a controlled substance but guilty of a lesser offense of refusing a

5 urinalysis test); Goldmas v. Wegen, No. 216CV3009JAMDBP, 2017 WL 1213414, at *2

6 (E.D. Cal. Apr. 3, 2017) (finding no violation where prisoner was charged initially with

7 “Resisting a Peace Officer Resulting in the Use of Force” but found guilty of “Disruptive

8 Behavior”); Jones, 2013 WL 6383248, at *11 (finding no violation where prisoner was

9 charged with attempted murder but found guilty of battery causing serious injury);

10 Rodriquez, 2020 WL 8767931, at *1 (finding no violation where prisoner was charged

11 with disposing of evidence but found guilty of possession of a hazardous tool); Porte,

12 105 F. App’x at 856 (finding no violation where prisoner was charged with intimidation

13 but found guilty of insolence).

14 These cases compel the same result here. The original notice to Hale for DR 033-

15 21 provided the factual basis for the conduct at issue—detailed facts related to his

16 physical contact with prisoner Jewell. Furthermore, the prison regulations provided notice

17 to Hale that he might face a lesser included charge without additional notice:

18 (a) Guilty. A majority (2 to 1) of the Board members must be convinced the

prisoner committed the charged violation, or a lesser-included offense of the

19

charged violation. A guilty determination is based on a “preponderance of

20 evidence”, (i.e., there is more evidence to indicate the prisoner is guilty

rather than not guilty).

21

22 ECF No. 37-3 at 149 (emphasis added); see Rivera, No. EDCV 11-1638-JAK JEM, 2013

23 WL 1010534, at *1 (noting that regulations at issue in that case “places inmates on

24 general notice that upon completion of the fact-finding portion of the disciplinary

25 hearing, the inmate may be found guilty as charged or guilty of an included serious rule

26 violation”) (internal quotation marks omitted).

27 As Hale himself recognizes, the only point of distinction between these cases and

28 his situation is that the lesser included offense finding was not found during his D&A

1 Board proceeding, but only upon review by the approving reviewer. ECF No. 45 at 14.

2 However, Hale does not cite any cases that suggest that this distinction matters.

3 Ultimately, in either scenario, a prisoner faces Charge A in the notice and is found not

4 guilty of that charge, but then is found guilty of the lesser included Charge B. The prison

5 regulations at issue, as quoted above, approved precisely of this action by the approving

6 reviewer—the ability to “reduce or reverse the D&A Board’s findings.” See Jones, 2013

7 WL 6383248, at *11 (noting that the regulation at issue provided the hearing officer with

8 “authority to reduce the offense at his discretion during the disciplinary hearing or, after

9 the fact-finding portion of the hearing is completed, and may find the inmate guilty of an

10 included serious rule violation”). By the plain language of this regulation, this power is

11 not limited to the situation where the prisoner had to have been found guilty in the first

12 instance by the D&A Board.

13 What may be driving Hale’s argument that this lesser included charge should have

14 been brought up at his actual hearing itself is a suggestion that he lost an opportunity to

15 be heard on it or defend against it at the hearing. However, Hale has not identified such

16 harm. In other words, he has not identified what he would have done differently to defend

17 himself against this charge had it been specifically brought with advance notice before

18 the hearing. See Rivera, 2013 WL 1010534, at *5; Walters, 2016 WL 704967, at *2

19 (noting that prisoner did not show that “additional notice would have made a difference”

20 because he did not “articulate[] any additional arguments or evidence he would have

21 presented at a disciplinary hearing had he been given the additional notice”).

22 Accordingly, the Court finds that the D&A Board’s and approving reviewer’s actions

23 were proper here and finds no error on this ground.

24 C. Ground Four: Opportunity to Confer with Counsel

25 Petitioner’s fourth ground for relief is that he was denied access to an attorney in

26 DR 029-21. ECF No. 45 at 15. Specifically, he alleges that even though he initially

27 declined to confer with legal counsel, he changed his mind and asked to speak to his

28 counsel, Tami Mitchell. Id. However, he claims that he was denied the opportunity to

1 speak to Ms. Mitchell from March 18 to March 28, the day of his D&A Board Hearing.

2 ECF No. 45 at 15.

3 Hale does not dispute that he initially waived his right to counsel on March 19,

4 2021. ECF No. 37-2 at 17. Furthermore, on the Advisement of Hearing Rights

5 Acknowledgement Form, signed by Hale on March 21, 2021, listing rights afforded to the

6 prisoner, it included the right:

7 To consult with legal counsel before the D&A board. There is no right to

specific legal counsel. The legal counsel is not authorized to be present at

8

the D&A Board, nor will contacting the counsel delay the board proceeding

9 as scheduled. If you request to speak with an attorney regarding this D&A

board, you may call MCAS Miramar Defense Services Office . . . . Contact

10

your Unit Manager or Counselor to place a call on the legal phone.

11

Id. at 19. Under this section, Hale selected that he did not request consultation with an

12

attorney. Id. Most importantly, there is no right to counsel that is constitutionally

13

mandated in prison disciplinary proceedings. Wolff, 418 U.S. at 570 (“[W]e are not

14

prepared to hold that inmates have a right to either retained or appointed counsel in

15

disciplinary proceedings.”). Thus, any alleged deficiency in this regard does not amount

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to a violation of due process rights cognizable on habeas review. The Court finds no error

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on this ground.

18

D. Ground Five: Written Statements

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Petitioner’s fifth ground for relief is that the written statements in the reports after

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his disciplinary board hearings did not comport with the requirement under Wolff and Hill

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for a “a written statement by the factfinder of the evidence relied on and the reasons for

22

the disciplinary action.” Petitioner acknowledges that the statement need not be detailed

23

but argues that the reports at issue here contain no justification for the reasoning or any

24

statement of the evidence that was relied upon. ECF No. 45 at 10-11.

25

In a case cited by Petitioner, Mujahid v. Apao, 795 F. Supp. 1020, 1027 (D. Haw.

26

1992), the district court recognized that no Supreme Court case nor Ninth Circuit case

27

explained further how detailed the written statements must be. Recognizing that different

28

1 circuits have reached different conclusions in this regard, the court relied upon the

2 standard in the Eighth Circuit as enunciated in Brown v. Frey, 807 F.3d 1407 (8th Cir.

3 1986). Specifically, the Brown court stated that Wolff would be satisfied even if the

4 statement, “sparse in content,” would be “sufficient to inform [the inmate] of the

5 evidence relied upon by the fact finders in reaching their decision to take disciplinary

6 action.” Brown, 807 F.2d at 1412. Brown identified two purposes underlying the written

7 statement requirement: (1) to “prevent[] arbitrary action by disciplinary boards;” and (2)

8 to “facilitate review of the disciplinary proceeding by those reviewing bodies having

9 penological concerns—such as officials considering whether to transfer an inmate to

10 another institution and parole boards making parole decisions—as well as those

11 reviewing bodies more interested in the fairness and constitutional propriety of the

12 proceeding—for example, state officials, the public, and the courts.” Id. at 1410. These

13 purposes and the limited liberty interest recognized for good time credits are balanced

14 against “the administrative costs and burdens a penal institution encounters, and society

15 pays for, when a disciplinary board must provide in every case before it a written

16 statement of the evidence relied on and the reasons for the disciplinary action.” Id. at

17 1411.

18 Applying these legal principles, in Brown, the report only indicated that the board

19 “relied on the conduct violation report as well the additional report—the joint

20 memorandum written by Officers Kemp, Brown, and Lewis—in reaching its decision.”

21 Id. The Brown court found this sufficient to inform the prisoner to satisfy due process,

22 without requiring “express[] indicat[ion] what statements in those reports the disciplinary

23 board relied on in reaching its decision.” Id. at 1413. The court further explained:

24 The purpose of a written statement is not to reconstruct in a technical and

detailed fashion the incident, as the board concluded it happened, that led to

25

the disciplinary action. Instead, the purpose of the written statement is to

26 require that the disciplinary board make reference to the evidence it relied on

and the reasons for the disciplinary action. This forces the disciplinary board

27

to commit itself, contemporaneously with its decision, to certain evidence

28 and reasons, and thus guarantees that the inmate is not placed at a “severe

1 disadvantage” by being forced to explain the incident or seek redress from

7 unconstitutional acts based on a board’s explanation that is patched together

after the inmate has forwarded his claim. In this respect, the distinction

3 between a written statement that incorporates statements in a report by

reference and one that repeats statements from the report is inconsequential.

4 .

In both cases, the board has committed itself to certain evidence, and a

5 review based on established facts is available.

6 Id. at 1414 (citations omitted).

7 Again applying these same principles, in Mujahid, the report stated that the

8 || committee “relied upon the ‘written reports and the testimonies.’” Mujahid, 795 F. Supp.

9 || at 1027. The underlying written report by the corrections officer recounted factual details

10 || and included a conclusion regarding the charges. Jd. The court concluded that this

11 |! officer’s report provided the prisoner with “sufficient notice of the basis for the

12 Adjustment Committee’s decision” and so there was “no uncertainty or ambiguity as to

13 || what evidence in the record that the Adjustment Committee relied upon in reaching its

14 || decision”—even though the committee’s written statement did no more than mention that

15 it relied on the written reports. Jd. at 1028.

16 With this background in mind, the Court turns to the written reports at issue here.

17 |! Hale is correct that each of the written reports themselves contain little written words

18 || under the “Findings” heading:

19 DR 029-21

20 a. FINDINGS: PRISONER DID COMMIT THE OFFENSE REPORTED |_| PRISONER DID NOT COI IT THE OFFENSE REPORTED

FINDINGS ARE BASED ON THE FOLLOWING: .

21 Peinvestigation Report (EFWitness Statements _ail 34 Plea DR Description _

FTP ees PLSACD Guat to CHALSE Bos wor Fw. eee J HE.

22 || |ReSen mee ances OC ce te Bia Gone £105 SNP Curcty □□

ai five _ Ecce: The Pec Fay: Side fos,

23 at a Ad

24

ECF No. 37-2 at 28.

25

//

26

DR 033-31

27

28

1 || [2 FINDINGS: 7 PRISONER DID COMMIT THE OFFENSE REPORTED | _| PRISONER DID NOT COMMIT THE OFFENSE REPORTED

avestigot ARE BASED ON THE FOLLOWING: .

2 Investigation Report (CJ Witness Statements (Plea oR Description

PTF Hoa Pleatio Goity TO PENS CHACCES. RASEC On) THe. FRE □□□□ □

3 Se ee THe Say Pen cg - Of aA Gen? FmwPS S32 GUICTY of one chAec And

I IGASS t He CTHE® Asia Ge EnO? Ther Cry ie we

4 Witness(es):

> Id. at 68.

6 DR 089-21

7 The initial D&A Board hearing report read as follows:

eee ee ee eee ee A ee A yy

8 a. FINDINGS: PRISONER DID COMMIT THE OFFENSE REPORTED {| PRISONER DID-NOT COMMIT THE OFFENSE REPORTED

FINDINGS ARE BASED ON THE FOLLOWING: □

9 nvestigation Report Witness Statements Plea DR Description : □

AS Comphiael aTeiEo Ws ins ! WE ACinN( Sob Ave

10 LEP NESE AT tet, bhyanSPIE, HS as phe erbodd ha WIOT EEO Pes OF

SE STATES HE pie wor om Lartrs's pif wate nner? □□□□□□□□□

11

Lk es ee ee ee ee ee Manama Rode Smee

12 . . . .

Id. at 125, The report after the new hearing which was granted based on violation of the

13

24-hour notice rule read:

14 1s nm ieee Seer | cmmen aoa gue □□□□□□□□□□□□□□□□□□□□□□ errr perry ncn neg

6. RESULTS OF DISCIPLINARY AND ADJUSTMENT BOARD (See also attached continuation page)

15 a. FINDINGS: “PRISONER DID COMMIT THE OFFENSE REPORTED |_| PRISONER DID NOT COMMIT THE OFFENSE REPORTED

FINDINGS ARE BASED ON THE FOLLOWING: ‘

Investigation Report Witness Statements lea ° DR Description

16

nr rte creer EN

18 || | Winesstee

19 at 133.

20 The reports are sparse, and do not contain much explanation for the findings.

21 || However, they are not required to under Wolff, as interpreted by Mujahid and Brown. See

22 Brown, 807 F.2d at 1414 (noting that the written statement does not need to contain

23 || detailed factual recounting of the incident and that incorporation of other written

24 || statements of the incident sufficed). Indeed, this line of cases that have been relied upon

25 |) within this Circuit have rejected the other circuits that did require more explanation. See

26 || Brown, 807 F.2d at 1413 (rejecting cases from the Seventh and Sixth Circuits which

27 expressly held that mere incorporation was not sufficient and required that “each item of

28 || evidence must be included in the written statement” and the statement “disclose why the

1 disciplinary board relied on certain evidence and rejected other evidence”); Mujahid, 795

2 F. Supp. at 1027 (similarly rejecting Seventh and Sixth Circuit cases that required “a

3 complete explanation of how the committee concluded that one witness was more

4 credible than another”). In both Brown and Mujahid, incorporation of other written

5 reports and interviews were found sufficient.

6 Even though the written statements from these D&A Board hearings do not list all

7 the written reports and witness statements relied upon, these are discernible from the

8 record and thus, the twin purposes of this Wolff requirement as enunciated in Brown are

9 still satisfied: to commit the disciplinary board into a certain pool of evidence to avoid

10 arbitrary decisions and to permit further review on appeal and by other reviewing bodies,

11 such as this Court. Here, the evidence is evident from the records. For DR 029-02, on the

12 first page of the written statement itself, there is a “detail of charges” section which is

13 filled out, and recounts that an officer witnessed the incident and provides a factual

14 description of what he saw. ECF No. 37-2 at 27. The rest of the record with regards to

15 this proceeding includes a written witness statement (id. at 11) and an investigative

16 report, which includes five more witness interview statements and further investigative

17 notes that video footage was viewed and recounts what the video showed (id. at 12-14).

18 For DR 033-31, the report’s “detail of charges” also recounts the factual details regarding

19 the incident from an officer who witnessed it. Id. at 68. Similarly, the record for this

20 proceeding also included an investigative report, which included four witness interview

21 statements and investigative notes that video footage was viewed and recounts what the

22 video showed. Id. at 56-59. It also included a further investigative report, containing one

23 additional witness interview. Id. at 64. For DR 089-21, the report’s “detail of charges”

24 describes how the Investigations Department came to know about the complaint of

25 violation of the no contact order.2 Id. at 124. The record also included a copy of the no

26

27

2 Even though this statement was only on page one of the first D&A Board report, when the first hearing

28

1 contact order (id. at 83-86), the letter from Hale to Lattin’s attorney (id. at 90-91), the

2 complaint made by Lattin (id. at 93-95), and an investigative report with three written

3 witness interview statements (id. at 99-110).

4 The Court acknowledges that other courts have held this to be a more exacting

5 requirement, rather than focusing on whether the purposes underlying the requirement

6 were met. Courts have consistently held that the findings cannot be left blank and there

7 must be some indication of evidence or explanation. See, e.g., Briggs v. Gallatin Cnty.,

8 No. CV 18-10-BU-KLD, 2020 WL 2557740, at *6 (D. Mont. May 20, 2020) (finding

9 insufficient where “Evidence Present, Witnesses, and Lay-Advisor” sections were left

10 empty and the written statement did not explicitly refer to or incorporate the infraction

11 reports). Some courts, however, have held that reference to only whole reports, without

12 more, is not sufficient. See, e.g., Davidson v. Capuano, No. 78 CIV. 5724 (RLC), 1988

13 WL 68189, at *13-14 (S.D.N.Y. June 16, 1988), aff’d, 895 F.2d 1410 (2d Cir. 1989)

14 (rejecting statement that said that the decision “was based upon two reports filed by

15 correctional personnel); Parks v. Dooley, No. CIV. 09-3514 PAM JSM, 2011 WL

16 847011, at *29 (D. Minn. Feb. 11, 2011) (insufficient where written statement left out

17 any explanation but only provided a list of witnesses and listed the evidence received

18 including incident reports and prior disciplinary history). Other courts have tried to

19 reconcile cases based on how complex the charges were. In Saenz v. Young, 811 F.2d

20 1172, 1174 (7th Cir. 1987), the court wrote “[w]here the charge is complex and the

21 committee fails to explain its findings, the reviewing court will find it difficult and maybe

22 impossible to determine whether the committee on the one hand found facts showing that

23 the prisoner really was guilty of the charge, or on the other hand based the finding of guilt

24 on erroneous legal premises.” But in that case, where the issue was whether the plaintiff

25 threw coffee or not and therefore, committed battery, the court found “there is no mystery

26

27

new board using the same DR [disciplinary report] with a new page 2 of DD-2714, and new 24 hour

28

1 about its reasoning process, [so] despite the extreme brevity of its statement of reasons,

2 that statement is not so deficient as to create error of constitutional magnitude.” Id.; see

3 also Davidson, 1988 WL 681189, at *14 (differentiating Saenz because the charge and

4 evidence were not “so simple that the mere incorporation of the misconduct report

5 satisfied due process”).

6 The charges against Hale in these disciplinary proceedings are similarly not so

7 complex, nor is the evidence that was presented through witness summaries, reports, and

8 other documentation. The Court agrees with the sentiment expressed in Saenz that the

9 D&A Board’s written statements was not a model or perhaps even prudent:

10 The prudent committee will give a statement of reasons in every case, rather

than invite a lawsuit that it may lose if the court disagrees with where the

11

committee drew the line. All that the committee would have had to say here

12 was that it believed the conduct report, or specific parts of it, and disbelieved

the prisoner; and we trust that in future cases prison disciplinary committees

13

will do that and head off the type of dispute that has arisen in this case. But

14 we do not think the omission of the statement violated the Constitution. A

statement of reasons has no particular value in itself. It is instrumental to the

15

goal of making sure that prisoners are not subjected through sloppy

16 procedures to an undue risk of being disciplined for things they have not

actually done. As that risk did not materialize here, we find no denial of due

17

process—but we warn the prison authorities that they act at their peril in

18 failing to state the reasons for administering discipline.

19 Id. at 1174.

20 Accordingly, the Court finds that the written reports, even though sparse in

21 content, sufficiently identify the evidence so as meet to the purposes for this requirement

22 under Wolff and finds no constitutional due process error on this ground.

23 E. Grounds Three and Six

24 Petitioner’s Amended Petition includes two additional grounds that he did not

25 explicitly address in his response brief. Ground Three alleged that he was denied due

26 process by not having an impartial hearing officer preside over the hearings. ECF No. 30

27 at 8-9. Ground Six alleges various complaints regarding the proceedings during DR 089-

28 21. Id. at 11-12.

1 As to Ground Three, Petitioner makes general allegations without any specific

2 factual support. He alleges that the hearing officer was not impartial but does not explain

3 why. He alleges that the Commanding Officer was the “proverbial judge, jury and

4 executioner” without explaining why this makes the proceedings unfair or why it violates

5 due process. He also alleges that the same hearing officers presiding over his hearings,

6 seeming to suggest that prevented them from being able to disregard previous

7 disciplinary hearings. These assertions are conclusory and are not sufficient to establish

8 impartiality. See Bostic v. Carlson, 884 F.2d 1267, 1271 (9th Cir. 1989), overruled on

9 other grounds by Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016) (rejecting argument on

10 habeas petition that decision maker was impartial where prison “provided no facts to

11 support his allegation that the decisionmaker was not impartial”).

12 As to Ground Six, it is again difficult to discern the precise violations that

13 Petitioner identifies. He seems to argue that the imposition of the charged in DR 089-21

14 has “no rational basis.” However, also alleges that it was violative of due process to have

15 the Commanding Officer override the findings of the D&A Board. As discussed above

16 though under Ground Two, the Navy’s Corrections Manual mandate this type of review.

17 To the extent that Petitioner is arguing that the guilty findings were not supported by

18 “some evidence” as required under Hill, the Court agrees with Respondent that this is

19 belied by the record—Hale himself pled guilty to the violation of no contact order charge

20 and admitted to sending the letter to Lattin’s attorney. Hill, 472 U.S. at 457 (“some

21 evidence” does not require “evidence that logically precludes any conclusion but the one

22 reached by the disciplinary board”).

23 Accordingly, the Court finds no errors on either of these two grounds.

24 E. No Contact Rule Violation

25 In his opposition brief, Petitioner brings up one additional argument that in

26 DR 089-21, he was charged with a violation of the No Contact order, but he argues that it

27 was “not per se a posted rule.” ECF No. 45 at 15-16.

28 As an initial matter, the Court notes that Respondent did not brief this issue

1 because it does not appear to be a ground raised in Petitioner’s amended petition. See

2 generally ECF No. 30. Generally, failure to raise a ground in an amended petition is

3 deemed waived. See, e.g., Aderhold v. United States, No. CV 07-520-TUC-JMR, 2007

4 WL 9736178, at *2 (D. Ariz. Oct. 31, 2007). The only ground that specifically referenced

5 DR 089-21 was Ground Six, but as discussed above, Petitioner did not make this specific

6 argument for the No Contact order violation charge.

7 Further, even on the merits, Petitioner’s argument faces significant challenges.

8 First, as he even himself recognizes, the No Contact order itself explicitly noted “Should

9 you fail to comply, disciplinary action may be taken.” ECF No. 45 at 16; ECF No. 37-2 at

10 83. Hale signed the No Contact Order, which also included the statement “I understand

11 the terms of this NO CONTACT ORDER.” ECF No. 37-2 at 83. Hale has provided no

12 authority to suggest that taking disciplinary action pursuant to this order, without an

13 explicit rule in the Department of the Navy’s Corrections Manual, is a constitutional

14 violation. The evidence shows the opposite—that Hale was on notice of disciplinary

15 action for failing to abide by the order.3 Second, this challenge to the charge was not

16 raised in Hale’s appeal of the disciplinary charge. See generally ECF No. 37-2 at 137-

17 139. Federal prisoners are required to exhaust their federal administrative remedies prior

18 to bringing a petition for a writ of habeas corpus in federal court. Martinez v. Roberts,

19 804 F.2d 570, 571 (9th Cir. 1986). Third, in the second D&A Board hearing that was

20 ordered, Hale actually pled guilty to the Violation of No Contact order charge. ECF No.

21 37-2 at 131. Generally, a guilty plea waives all claims of a constitutional nature that

22 occurred before the pleas. See Tollett v. Henderson, 411 U.S. 258, 267 (1973). Hale

23 makes no argument that his guilty plea was invalid. Cf. Bostic, 884 F.2d at 1272 (“The

24 Ninth Circuit has refused, however, to extend . . . procedural protections [that a guilty

25

26

27 3 Hale makes the additional argument that he was not provided a copy of the No Contact Order. ECF

No. 45 at 16. Again, he fails to show how this rises to a constitutional violation cognizable on habeas

28

1 || plea must be truly knowing, intelligent and voluntary] to proceedings less formal than

2 and federal criminal trials.”’”). Thus, the Court finds no error based on this argument.

3 IV. CONCLUSION

4 For the reasons discussed above, Respondent’s motion to dismiss Petitioner’s

5 || Amended Petition for Writ of Habeas Corpus is GRANTED and Petitioner’s application

6 a writ of habeas corpus is DENIED.

7 IT IS SO ORDERED.

8

9 Dated: October 6, 2023 “| ie SF amecae ot

10 Honorable James E. Sunmons Jr.

il United States District Judge

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