(HC) Alvarado v. FBOP-USP-Atwater ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAUL DAVID ALVARADO, No. 1:19-cv-01283-NONE-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. No. 13) 13 ORDER DENYING PETITION FOR WRIT 14 v. OF HABEAS CORPUS 15 ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE FOR PURPOSE 16 OF CLOSING CASE AND THEN ENTER C. BURCH, Warden, JUDGMENT AND CLOSE CASE 17 Respondent. [NO CERTIFICATE OF APPEALABILITY IS 18 REQUIRED] 19 20 Petitioner is a federal prisoner proceeding in forma pauperis and in propria persona with 21 a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. On January 24, 2020, the 22 assigned magistrate judge issued findings and recommendations recommending that the pending 23 petition be denied on its merits. (Doc. No. 13.) The findings and recommendations were served 24 upon all parties and contained notice that any objections were to be filed within thirty (30) days 25 from the date of service. To date, no party has filed objections.1 26 27 1 The court notes that the findings and recommendations were served by mail upon petitioner at his address of record but were returned to the court by the U.S. Postal Service on February 21, 28 2020, as “Undeliverable – Refused.” 1 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the court has conducted a 2 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 3 findings and recommendations are supported by the record and proper analysis. 4 Petitioner’s is currently in the custody of the U.S. Bureau of Prisons (“BOP”) at the 5 United States Penitentiary in Atwater, California. In the pending petition he challenges a prison 6 disciplinary hearing at which he was found guilty of using illicit drugs in a prison facility, and for 7 which he was sanctioned with a 41-day loss of Good Conduct Time credits. (Doc. 1 at 6.) 8 Specifically, petitioner challenges the sufficiency of the evidence submitted at the hearing arguing 9 that it failed to support the finding that he was guilty of the disciplinary charge. As the Supreme 10 Court has explained, “the requirements of due process are satisfied if some evidence supports the 11 decision by the prison disciplinary board to revoke good time credits.” Superintendent, 12 Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 455 (1984). Further, 13 [a]scertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the 14 credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that 15 could support the conclusion reached by the disciplinary board. 16 Id. at 455-56. Here, the magistrate judge correctly concluded that there is at least “some 17 evidence” in the record to support the disciplinary decision because a BOP witness with first- 18 hand knowledge noted in a written report that petitioner appeared to be under the influence of a 19 narcotic based on his erratic behavior. (Doc. No. 13 at 2–3, 6.) In addition, a registered nurse 20 then examined petitioner and reported that he had no medical history or current prescriptions that 21 would result in such an altered mental state and concluded that petitioner’s behavior was 22 consistent with the use of synthetic cannabinoids, the use of which cannot be confirmed by the 23 urine test administered to petitioner. (Id.) Because there was some evidence submitted which 24 supports petitioner’s disciplinary conviction, the pending findings and recommendations will be 25 adopted. 26 In the event a notice of appeal is filed by petitioner in this action, a certificate of 27 appealability is not required because this “is not a final order in a habeas proceeding in which the 28 detention complained of arises out of process issued by a State court.” Forde v. U.S. Parole 1 | Commission, 114 F.3d 878, 879 (9th Cir. 1997) (citing Ojo v. INS, 106 F.3d 680, 681-682 (Sth 2 | Cir. 1997) and Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996)); see also Close v. Thomas, 3 | 653 F.3d 970, 974 n.2 (9th Cir. 2011). 4 Accordingly, the Court orders as follows: 5 1. The findings and recommendations, filed January 24, 2020 (Doc. No. 13), are 6 | ADOPTED IN FULL; 7 2. The petition for writ of habeas corpus is DENIED; 8 3. The Clerk of Court is directed to assign a district judge to this case for the purpose 9 | of closing the case and then to ENTER JUDGMENT AND CLOSE THE CASE; and, 10 4. No certificate of appealability is required. 11 This order terminates the action in its entirety. 12 | IT IS SO ORDERED. si □ Dated: _ March 10, 2020 J aL Al 5 7 a 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28