Opinion

Court: District Court, C.D. California
Filed: Aug 17, 2026
Cited by: 0 cases

The opinion

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

11 HANOI BARBARO ACOSTA, Case No. 5:24-cv-01630-SPG-SSC

12 Petitioner, ORDER ACCEPTING REPORT AND

v. RECOMMENDATION OF UNITED

13 STATES MAGISTRATE JUDGE

14 C. LEPE, Warden, et al.,1

15 Respondents.

17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of

18 Habeas Corpus by a Person in Federal Custody, the records on file, and the Report

19 and Recommendation of the United States Magistrate Judge (ECF No. 35

20 (“Report”)). The Court has also reviewed Petitioner Hanoi Barbaro Acosta’s

21 Objections to the Report (ECF No. 42 (“Objections”)) and Respondents’ Reply to the

22 Report (ECF No. 43). Further, the Court has engaged in a de novo review of those

23 portions of the Report to which objections may have been made.

26 1 As the United States Magistrate Judge’s Report and Recommendation previously

27 noted, C. Lepe is the Warden of the Federal Correctional Complex in Victorville,

California, where Petitioner was housed at the time of the filing, so he is substituted

1 The Report recommends the denial of the Petition, which challenges

Petitioner’s loss of 14 days of good-time credits as a prison disciplinary sanction for

refusing a work or program assignment. (Report). Petitioner’s Objections do not

merit a different result.

First, Petitioner objects that the Report did not properly apply the factors of

Wolff v. McDonnell, 418 U.S. 539 (1974), in a way that meaningfully addresses

Petitioner’s due process claim. (Objections at 4–8.) Specifically, Petitioner objects

that the Report did not address the “overarching question of whether the reason for

the proposed discipline is lawful, and thus one to which [Petitioner] can rightfully be

held to answer.” (Id. at 5). The proposed discipline was unlawful, according to

Petitioner, because it was charged for his refusal to obey an order to “enter the general

population despite the known risk that he was in danger of physical injury or death

from members of his former gang.” (Id. at 2).

Petitioner’s objection is not persuasive. In the prison context, due process

requires “some evidence” of guilt to support a disciplinary finding, requiring only a

“modicum of evidence” to support a decision to revoke good-time credits.

Superintendent v. Hill, 472 U.S. 445, 455–56 (1985) (declining to adopt a more

stringent evidentiary standard). As other district courts in this Circuit have reasoned,

“[i]nmates are not allowed to pick and choose orders they will obey.” Dao v. Tabor,

No. 2:22-cv-00846 TLN CSK P, 2024 WL 2259138, at *8 (E.D. Cal. May 17, 2024),

report and recommendation adopted, No. 2:22-cv-00846-TLN-CSK, 2024 WL

4268095; see also Manago v. Martinez, No. 5:21-cv-01939-MCS-KES, 2023 WL

8604192, at *7 (C.D. Cal. Oct. 6, 2023) (“Inmates cannot countermand lawful

orders”), report and recommendation adopted, No. EDCV 21-01939-MCS-KESx,

2023 WL 8602258 (C.D. Cal. Dec. 12, 2023). Here, the proposed discipline was

based on the incident report, which lacked any statement from Petitioner explaining

his refusal of the order to enter the general population. (ECF No. 30-2 at 20–21).

Nor did Acosta’s prior write-ups reflect this reasoning. See (id. at 27). Moreover,

1 Petitioner repeatedly declined to identify this “known risk” to his safety to the BOP

officer conducting the initial investigation and the disciplinary committee reviewing

his incident report. (Report at 3).

Petitioner was advised of his rights both at the time of the incident report and

once the charge was referred to the Discipline Hearing Officer. (Report at 3–4). At

no point in his disciplinary proceeding did Petitioner raise the argument that he

refused to obey the order because it would endanger his safety. “Indeed, Petitioner

neither offered witnesses nor documentary evidence and did not appear at the hearing

[before the Discipline Hearing Officer,] despite having been advised of his right to

do so.” (Report at 10 (citations to record omitted)). Additionally, although Petitioner

now argues that raising a defense to the disciplinary charge “was an exercise in

futility from the start” (Objections at 7), the argument is unsupported by the record.

The disciplinary officer did not consider the argument because Petitioner failed to

bring the argument to the officer’s attention. See Witkin v. Arnold, 757 F. App’x 561,

563 (9th Cir. 2018) (no due process violation from a prisoner’s alleged inability to

call witnesses at a disciplinary hearing where the testimony was based on what the

prisoner “might have known but not told the officer”) (emphasis in original).

Petitioner next objects that he “did not make a standalone claim that the

[Bureau of Prisons’ (“BOP”)] order violated the law.” (Objections at 8). The

objection refers to the Report’s analysis that Petitioner’s claim, which the Magistrate

Judge construed as Petitioner alleging that the order requiring Petitioner to enter the

general population violated the BOP’s obligations under federal law, was not

cognizable on federal habeas review. (Report at 11–13). Petitioner objects that,

“[i]nstead, [Petitioner’s] pleadings . . . make clear that [Petitioner] was not

challenging the factual determination that he refused to enter Gen Pop., but the legal

determination, or lack thereof, as to whether, under the circumstances, he was legally

justified in refusing.” (Objections at 8). As stated above, however, Petitioner refused

to participate in his disciplinary proceedings and therefore did not give the

1 disciplinary hearing officer an opportunity to consider why Petitioner refused to obey

the order. Thus, Petitioner has not shown that his due process rights were violated.

Petitioner also argues that the Court should construe his claim as including an

Eighth Amendment argument that his credit loss was cruel and unusual. (Objections

at 8–9). Petitioner, however, did not argue in his Petition that the credit loss violated

the Eighth Amendment. (ECF No. 1 (“Complaint”) at 22–24). Instead, Petitioner

raised this Eighth Amendment theory for the first time in his Reply to the Petition.

(ECF No. 32 (“Reply”) at 12 n.2). The Court agrees with the Report that the Court

should decline to construe Petitioner’s claim as raising an Eighth Amendment

challenge to the loss of good-time-credits, given the circumstances in which he raised

it. (Report at 14.) As other courts in this District have held, “it is improper to attempt

to change the substance of a claim through a [t]raverse [factual denial] and to assert,

as Petitioner has done, a new claim distinct from that alleged in the original petition.”

Moore v. Chrones, 687 F. Supp. 2d 1005, 1032 n.17 (C.D Cal. 2010) (citing

Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994)). Moreover, even if

this Court were to assume that Petitioner properly raised an Eighth Amendment

theory as to the loss of his credits, the Report made an alternative finding that the

claim is not cognizable. (Report at 15–17).

Petitioner objects to the Report’s alternative finding that an Eighth

Amendment claim, under the circumstances, is not cognizable. (Objections at 10).

The Report found that the Eighth Amendment claim is not cognizable because

Petitioner’s argument for that claim was that he was endangered by his proximity to

members from his former gang, see (Reply at 12 n.2), which was a civil rights claim

challenging a condition of confinement rather than a habeas claim challenging the

fact or duration of his custody. (Report at 15–16). Petitioner now objects that his

Eighth Amendment claim “centers around the government choosing to increase his

sentence without legitimate grounds, which makes the precedent for the ultimate

1 || revocation of his good time credits unlawful.” (Objections at 10). This was not the

2 || same proximity theory that Petitioner raised in his Reply. See (Reply at 12 n.2).

3 Moreover, Petitioner’s new characterization of his claim, as a “choice to

4 || increase his sentence” through the revocation of good-time credits, does not implicate

5 || the Eighth Amendment. See Rogers v. Bilderback, No. 2:19-cv-09507-AB-JC, 2020

6 || WL 3874873, at *5 (C.D. Cal. Mar. 11, 2020) (“[T]he Eighth Amendment does not

7 || protect against the loss of good-time credits’’) (citing United States v. Brown, 59 F.3d

8 | 102, 104-05 (9th Cir. 1995) (loss of good time credits is not “punishment” for

3 || purposes of double jeopardy because it serves remedial goals, and even if it were

10 || punitive, it does not alter the original sentence)). For the foregoing reasons, the Court

11 |) overrules Petitioner’s objections.

12 ORDER

13 It is ordered that (1) the Report and Recommendation 1s accepted and adopted:

14 || and (2) Judgment will be entered denying the Petition and dismissing this action with

15 || prejudice.

17 | DATED: August 17, 2026

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