(HC) Terrell v. Trate ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN W. TERRELL, Case No. 1:22-cv-00305-CDB (HC) 12 Petitioner, ORDER GRANTING RESPONDENT’S MOTION TO DISMISS 13 v. (ECF No. 12) 14 WARDEN, USP-ATWATER, 15 Respondent. 16 17 18 Before the Court is Respondent’s Motion to Dismiss, filed November 4, 2022. (ECF No. 19 12). 20 Pursuant to the Court’s Order Setting Briefing Schedule and consistent with Rule 4 21 Governing Section 2254 cases,1 Petitioner had twenty-one (21) days after Respondent filed the 22 Motion to Dismiss to file Petitioner’s opposition or statement of non-opposition. As of 23 November 29, 2022, Petitioner has made neither filing. Therefore, under Eastern District of 24 California Local Rule 230(c) the Court construes Petitioner’s failure to timely oppose as a non- 25 opposition to the motion. Accordingly, the matter is fully submitted, and the Court grants 26 1 The Rules Governing Section 2254 Cases may be applied to petition for writ of habeas corpus other than 27 those brought under § 2254 at the Court’s discretion. See Rule 1 of the Rules Governing Section 2254 Cases. Civil Rule 81(a)(4) provides that the rules are “applicable to proceedings for . . . . habeas corpus . . . to the extent that the 1 Respondent’s Motion to Dismiss on its merits. 2 I. Procedural and Factual Background 3 On March 16, 2022, Petitioner, a Bureau of Prisons (BOP) inmate currently incarcerated 4 in Atwater, California, filed a 28 U.S.C. § 2241 petition for habeas corpus seeking relief from 5 sanctions imposed on him for a BOP code 113 violation (possession of illicit drugs) at FCI- 6 Butner on July 25, 2019. 7 Petitioner’s illicit drug possession violation occurred during his service of his 100-month 8 prison sentence following his conviction in the Southern District of West Virginia for felon in 9 possession of a firearm in violation of 18 U.S.C § 922(g). According to prison records, Petitioner 10 confessed to possessing illicit synthetic cannabis oil drug doses. (ECF No. 12, Appx. p. 22). 11 Petitioner claims that he was never given a written statement of reasons as to why he was found 12 guilty of his illicit drug possession, which he argues violates Wolff v. McDonnell, 418 U.S. 539 13 (1974). Petitioner seeks relief in the form of restoring his good time credit, and expungement of 14 “incident report #330582.” (ECF No. 1, p. 5). 15 II. Discussion 16 In Wolff, the Supreme Court held that prison disciplinary hearings are required to have 17 five elements to meet procedural due process requirements. They are: (1) written notice of the 18 charges no less than 24 hours before the hearing; (2) an opportunity to present witnesses and 19 documentary evidence; (3) an impartial hearing body; (4) assistance for illiterate inmates or in 20 complex cases; and (5) a written statement of the evidence relied upon, as well as reasons for the 21 sanction. Wolff, 418 U.S. 563-567. 22 Respondent asserts that Petitioner did receive proper procedural due process and claims 23 that dismissal is appropriate because Petitioner failed to exhaust all available judicial and 24 administrative remedies before he filed his § 2241 petition. Ward v. Chavez, 678 F.3d 1042, 1045 25 (9th Cir. 2012). Exhaustion is not a “jurisdictional prerequisite,” but generally can be only waived 26 if “pursuing those administrative remedies would be futile.” Id. 27 To exhaust available administrative remedies, an inmate must proceed through the 1 | resolution of the issue at their institution of confinement. Jd. § 542.14. If the informal process 2 | fails, the inmate must file a formal request with the Warden. Jd. If the Warden denies a remedy, 3 | the inmate may appeal to the Regional Director, within 20 days of receiving the Warden’s 4 | response, and then to the General Counsel within 30 days of the Regional Director’s response. Id. 5 § 542.15. 6 Petitioner claims that there was a due process error because he did not receive a timely 7 | copy of the final Disciplinary Hearing Officer (DHO) written decision determining that has 8 | violated BOP’s Disciplinary code, filed October 31, 2019. Respondent points to the record, 9 | which indicates that Petitioner did in fact receive the DHO decision as he filed two 10 | Administrative Remedy appeals, challenging incident report number 3305832. The Regional 11 || Director did address Petitioner’s Administrative remedy appeal and found that he had been 12 | afforded due process. (ECF No. 12, Appx pp. 5-7). Petitioner has not appealed the Regional 13 | Director’s decision to the General Counsel, and thus has not exhausted his administrative 14 | remedies. Jd. 15 The Court finds that the record is consistent with Respondent’s assertions that Petitioner 16 | did indeed appeal to the Regional Director, and he received a written denial of his appeal. (ECF 17 | No. 12, Appx at pp. 41-46). Furthermore, the uncontradicted record reflects that Petitioner did 18 | admit that report number 330582 was accurate. Id. at pp. 47-48. 19 | IN. Conclusion and Order 20 Accordingly, for the reasons set forth above, the Court ORDERS that Respondent’s 21 || Motion to Dismiss is GRANTED, and Petitioner’s Petition for Habeas Corpus is DENIED. 22 | IT IS SOORDERED. 23 Dated: _ November 30, 2022 | ww RR 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28