1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY CHESTER, Case No. 1:22-cv-01368-HBK (HC) 12 Petitioner, OPINION AND ORDER GRANTING

RESPONDENT’S MOTION TO DISMISS1

13 v. (Doc. No. 7) 14 WARDEN, USP-ATWATER, 15 Respondent. 16 17 Petitioner Jerry Chester, a federal prisoner, has pending a pro se petition for writ of habeas 18 corpus filed under 28 U.S.C. § 2241. (Doc. No. 1, “Petition”). The Petition raises two grounds 19 for relief in connection with a prison disciplinary hearing conducted while Petitioner was 20 incarcerated at the United States Penitentiary (“USP”) Victorville: “(1) [Bureau of Prisons 21 (“BOP”)] processes violated his due process rights; and (2) such violation resulted in his prison 22 sentence being unconstitutionally lengthened by virtue of losing 41 days good conduct time.” (Id. 23 at 1). In response, on January 17, 2023, Respondent filed a Motion to Dismiss with Appendix. 24 (Doc. Nos. 7, 7-1). Respondent argues Petitioner’s claims are without merit and his due process 25 rights were not violated. (Doc. No. 7). Petitioner has not filed a response to the motion, nor 26 requested an extension of time to respond, and the time for doing so has expired. (See Doc. No. 4 27 1 Both parties have consented to the jurisdiction of a magistrate judge in accordance with 28 U.S.C. 28 §636(c)(1). (Doc. No. 9). 1 at ¶ 4, advising Petitioner that he has twenty-one (21) days to file a response if Respondent files a 2 motion to dismiss). For the reasons set forth more fully below, the Court grants Respondent’s 3 Motion to Dismiss and denies Petitioner relief on his Petition. 4 I. BACKGROUND 5 Petitioner is serving a 264-month federal prison sentence for his 2015 plea-based 6 conviction in the United States District Court for the Northern District of Georgia (“NDGA”) for 7 conspiracy to possess cocaine with the intent to distribute in violation of 21 U.S.C. §§ 846 and 8 841(b)(1)(A)(ii). See United States v. Beeks et al., No. 1:09-cr-00320-TCB-JKL, Crim. Doc. 9 Nos. 426, 429-30.2 In June 2021, while Petitioner was residing at USP-Victorville, an Inmate 10 Investigate Report (“IR”) determined that the mailroom at Victorville began receiving hardcover 11 books beginning in April 12, 2021, that were addressed to various inmates, all of which had 12 hidden compartments that were filled with Suboxone and Synthetic Marijuana. (Doc. No. 7-1 at 13 92). “During the course of [the] investigation, it was determined that [Petitioner] was 14 coordinating the introduction of narcotics into the institution” as verified by both emails and 15 phone calls in which Petitioner and another inmate ascertained tracking numbers for packages 16 containing narcotics subsequently intercepted by the Victorville mail room. (Id. at 92-95). On 17 October 19, 2021, Petitioner received a rewritten IR3 for introducing illicit drugs into a BOP 18 facility in violation of BOP Code 111A and abuse of prison mail services in violation of BOP 19 Code 196. (Id. at 30-33). After Petitioner was provided with the IR, the matter was referred to 20 Petitioner’s Unit Discipline Committee (“UDC”), and the UDC upheld the charge and referred for 21 a Discipline Hearing Officer (“DHO”) Report. (Id. at 74). During this process, Petitioner was 22 advised of his rights, confirmed his receipt of the IR, and confirmed his staff representation at the 23 disciplinary hearing. (Id. at 33, 74). Officials provided Petitioner with an opportunity to make a 24 statement at the UDC proceedings, but he elected to submit a written statement. (Id. at 65-72). 25 2 The undersigned cites to the record in Petitioner’s underlying NDGA criminal case as “Crim. Doc. No. 26 _.”. 3 The record includes an “advisement of incident report delays” to ensure the inmate’s due process rights 27 were not violated. The advisement indicated the UDC hearing would not be conducted within 5 workdays of the reporting officer becoming aware of the incident because, in part, the DHO requested a rewrite of 28 the incident report. (Doc. No. 7-1 at 63). 1 On November 3, 2021, a disciplinary hearing was convened. Petitioner appeared at the 2 hearing, stated he received a copy of the IR, elected not to call witnesses, and elected to rely on 3 his written statement as documentary evidence. (Id. at 78-79). His staff representative stated that 4 Petitioner believed “mistakes were made during the investigation and that a total of seven books 5 arrived. Though five books were in his name, he states that the other two books did not belong to 6 him and could have contained the drugs.” (Id. at 78). The hearing officer found Petitioner guilty 7 of introducing illicit drugs into a BOP facility based on the following evidence: the officer’s 8 written report; Petitioner’s written and oral statements at the UDC and DHO hearings; the SIS 9 investigative report; the memorandum by Acting Chief Pharmacist C. Madrigal identifying the 10 confiscated strips as Suboxone; evidence photos; and TRULINCS e-mail messages. (Id. at 80- 11 84). Petitioner was assessed 41 days disallowed good conduct time, 41 days of disciplinary 12 segregation, and loss of email privileges for six months. (Id. at 85). 13 Petitioner filed a prison appeal contending that his due process rights were violated 14 because a “certified technician” did not conduct Narcotic Identification Kit (“NIK”) Polytesting 15 for confirmation that the “orange colored film substance identified by Acting Chief Pharmacist G. 16 Madrigal” was Suboxone pursuant to “established BOP policy.” (Doc. No. 7-1 at 27). In 17 response to the appeal, the reviewer after investigating Petitioner’s allegations determined them to 18 be without merit; specifically, “[c]ontrary to [Petitioner’s belief, a pharmacist is allowed to 19 identify a substance as Suboxone and staff are not required to retest the substance via NIK 20 Polytesting when this is done.” (Id.). The reviewer reasonably found Petitioner guilty based on 21 the greater weight of evidence, including the account of the reporting staff member who 22 conducted the investigation, the documentary evidence, and the lack of evidence presented by 23 Petitioner to exonerate himself of the charge. (Id.). At the next level of review, the appeal was 24 similarly denied because the substance “was identified by the pharmacist as Suboxone and no 25 additional testing was required; and the DHO’s decision was reasonable and supported by the 26 evidence.” (Id. at 19). 27 Petitioner argues his due process rights were violated under Wolff v. McDonnell, 418 U.S. 28 539 (1974) because (1) the IR “did not provide him with specific evidence proving that the strips 1 were properly tested in accordance to BOP’s NIK testing procedure”; (2) the Acting Chief 2 Pharmacist did not indicate that he or she used NIK testing before identifying the confiscated 3 substance as Suboxone; (3) the DHO’s findings were not supported by “some evidence” because 4 the substances were not properly tested; and (4) Petitioner’s prison sentence was 5 unconstitutionally lengthened by losing 41 days of good conduct time as a result of the DHO’s 6 finding. (Doc. No. 1 at 4). Respondent argues Petitioner waived any argument regarding NIK 7 testing because it was not raised at the hearing, and regardless, his argument is without merit 8 because the DHO “may properly rely on pharmacist [sic] illicit drug finding conclusions based on 9 NIK testing” to support the disciplinary findings. (Doc. No. 7 at 5-7). 10 II. APPLICABLE LAW AND ANALYSIS 11 Under Rule 4, if a petition is not dismissed at screening, the judge “must order the 12 respondent to file an answer, motion, or other response” to the petition. R. Governing 2254 Cases 13 4. The Advisory Committee Notes to Rule 4 state that “the judge may want to authorize the 14 respondent to make a motion to dismiss based upon information furnished by respondent.” A 15 motion to dismiss a petition for writ of habeas corpus is construed as a request for the court to 16 dismiss under Rule 4 of the Rules Governing Section 2254 Cases. O’Bremski v. Maass, 915 F.2d 17 418, 420 (9th Cir. 1990). Under Rule 4, a district court must dismiss a habeas petition if it 18 “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 19 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 20 At the outset, a challenge to the execution of a sentence by a federal prisoner, as opposed 21 to the imposition of a sentence, is properly brought under 28 U.S.C. § 2241. Hernandez v. 22 Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (per curiam). Thus, government action that affects 23 the duration of a prisoner’s sentence, such as a loss of good time credits following a disciplinary 24 proceeding, are properly brought via § 2241. Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973); 25 Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001).4 Here, Petitioner seeks 26

27 4 However, in dicta, the Supreme Court, stated the award of good time credit by the Bureau of Prisons (BOP) under 18 U.S.C. § 3624(b) “does not affect the length of a court-imposed sentence; rather it is an 28 administrative reward to provide an incentive for prisoners to ‘compl[y] with institutional disciplinary 1 restoration of 41 days of lost good time credits for the challenged offense. (Doc. No. 1 at 8). 2 A. Due Process Claims 3 Wolff establishes the minimum due process that must be afforded to prisoners during 4 prison disciplinary hearings. See Wolff v. McDonnell, 418 U.S. 539 (1974) (“[D]ue process 5 requires procedural protections before a prison inmate can be deprived of a protected liberty 6 interest in good time credits.”). Due process requires: (1) advance written notice of at least 24 7 hours of the disciplinary charges; (2) an impartial hearing body; (3) an opportunity, when 8 consistent with institutional safety and correctional goals, to call witnesses and present 9 documentary evidence in his defense; (4) a written statement by the factfinder of the evidence 10 relied on and the reasons for the disciplinary action; and (5) assistance to the prisoner where the 11 prisoner is illiterate or the issues presented are legally complex. Id. at 563-567. Prisoners bear 12 the burden to demonstrate that they did not receive due process during their disciplinary hearing. 13 See Parnell v. Martinez, 821 Fed. Appx. 866, 866-867 (9th Cir. 2020) (finding that the district 14 court “properly dismissed [the petitioner’s] due process claim challenging his disciplinary hearing 15 following his failure to submit to a urinalysis because [the petitioner] failed to allege facts 16 sufficient to demonstrate that he was not afforded all the process that was due.”). 17 Moreover, “revocation of good time does not comport with ‘the minimum requirements of 18 procedural due process,’ unless the findings of the prison disciplinary board are supported by 19 some evidence in the record.” Superintendent, Mass. Correctional Institution v. Hill, 472 U.S. 20 445, 454 (1985) (quoting Wolff, 418 U.S. at 558) (emphasis added). The court need not 21 reexamine the entire record, assess the credibility of the witnesses, or weigh the evidence 22 presented during the hearing. See id. at 455-56. Rather, the court determines whether there is 23 “any evidence in the record that could support the conclusion reached by the disciplinary board.” 24 Id. (emphasis added). 25 Petitioner contends his due process rights were violated because the IR “lacked proof that 26

27 regulations.” Pepper v. United States, 562 U.S. 476, 502, n. 14 (2011) (internal quotations and citations omitted). 28 1 the strips were tested in full compliance with BOP’s NIK’s testing procedure” and he was 2 therefore unable to prepare a proper defense; and the DHO relied on an “unauthorized” 3 pharmacist’s “visual examination of the strips seized, and the pharmacists boilerplate statements 4 that he/she identified the strips as Suboxone,” however, the pharmacist’s memorandum did not 5 state how he or she “arrived at the conclusion of identifying the orange strips as Suboxone, and at 6 no time the IR or the DHO provided any information as to which staff performed the NIK test, if 7 one was done, and whether the NIK test was performed in the sequential order as required.” 8 (Doc. No. 1 at 4-7). Plaintiff claims that without “proper” NIK testing by “authorized staff” the 9 evidence should be “deemed inappropriate and inadmissible” for consideration by the DHO, and 10 absent this evidence the DHO’s finding is not supported by some evidence. (Id. at 7-8). 11 As an initial matter, a plain reading of the BOP program statements provided by Petitioner 12 do not support his argument that BOP officials did not comply with NIK “testing procedures.” 13 (See id. at 5). BOP Program Statement 6060.08, as cited by Petitioner, indicates that “each 14 Captain will ensure the institution maintains a supply of Narcotic Identification Kits (purchased 15 through the Federal Supply Schedule) to determine the identity of unknown substances” and “all 16 lieutenants will be proficient in using [NIK] and ordinarily are responsible for testing unknown 17 substances.” (Id. at 17); see BOP Program Statement 6060.08, Urine Surveillance and Narcotic 18 Identification (updated Mar. 8, 2001), available at 19 https://www.bop.gov/policy/progstat/6060_008.pdf. Contrary to Petitioner’s arguments, and 20 commensurate with the reviewer’s findings on appeal, the cited Program Statements do not 21 require that NIK testing be performed, nor do they dictate that such testing must be conducted by 22 a lieutenant as opposed to a pharmacist. (Cf. id. at 5; See Doc. No. 7-1 at 27 (“[c]ontrary to 23 [Petitioner’s] belief, a pharmacist is allowed to identify a substance as Suboxone and staff are not 24 required to retest the substance via NIK Polytesting when this is done.”)). Moreover, “[a] habeas 25 claim cannot be sustained based solely upon the BOP’s purported violation of its own program 26 statement because noncompliance with a BOP program statement is not a violation of federal 27 law.” Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011). 28 In the instant case, the DHO report specifically relies on supporting memorandum 1 provided by Acting Chief Pharmacist C. Madrigal indicating he was presented with a hardcover 2 book addressed to Petitioner that had approximately 100 orange strips concealed under the book 3 binding, and the chief pharmacist “identified the orange strips (with the imprint A8 and 8) as 4 Suboxone (Buprenorphine/Naloxone) 8mg/2mg sublingual strips.” (Doc. No. 7-1 at 81). It is 5 widely held that an inmate does not have a constitutional right to an additional drug test to verify 6 the results of an initial positive test. White v. Stansil, 2016 WL 4009954, at *6 (E.D. Cal. Jul. 25, 7 2016) (collecting cases); Williams v. Johnson, 2017 WL 2469980, at *6 (C.D. Cal. Apr. 28, 2017) 8 (petitioner did not explain how testing may have been faulty and “speculation does not equate to a 9 substantive due process violation”); Harris v. Blanckensee, 2022 WL 704061, at *4-5 (D. Ariz. 10 Mar. 9, 2022), adopted in relevant part in 2022 WL 1102634 (D. Ariz. Apr. 13, 2022) (Wolff 11 requirements met when DHO relied in part on staff pharmacist’s report that “medication strips” 12 contained suboxone). Thus, regardless of Petitioner’s unfounded claims that the USP-Victorville 13 officials did not adhere to BOP guidelines by having a pharmacist test the confiscated strips, he 14 offers no evidence that the testing was faulty, and mere speculation “does not support a claim of 15 due process error or even undermine the conclusion / finding of illicit drugs.” (Doc. No. 7 at 6). 16 Finally, Petitioner presents no evidence that the prison disciplinary procedures did not 17 meet due process standards under Wolff. Petitioner was notified of his rights before the DHO 18 hearing, appeared at the hearing, declined his opportunity to present evidence and call witnesses, 19 and he was notified in writing of the DHO’s findings. See Wolff, 418 U.S. at 563-67. The DHO 20 relied on evidence to find Petitioner guilty of the charged offense, including the officer’s written 21 report; Petitioner’s written and oral statements at the UDC and DHO hearings; the SIS 22 investigative report; the memorandum by Acting Chief Pharmacist C. Madrigal identifying the 23 confiscated strips as Suboxone; evidence photos; and TRULINCS e-mail messages. (Doc. No. 7- 24 1 at 80). It is not for this Court to reexamine the record, independently assess credibility, or 25 reweigh the evidence before the DHO. See Hill, 472 U.S. at 455-56. The record before the Court 26 contains “some evidence” to support the DHO’s conclusion, and due process requirements were 27 met under Wolff. 28 Based on the foregoing, the Court finds no due process violation in connection with the 1 | challenged DHO findings. The Court finds the Petition is without merit and denies Petitioner any 2 | relief. 3 Accordingly, it is ORDERED: 4 1. Respondent’s Motion to Dismiss (Doc. No. 7) is GRANTED. 5 2. The Petition (Doc. No. 1) is DENIED as without merit and Petitioner is denied any relief 6 on his Petition. 7 3. The Clerk of Court shall enter judgment and close this case. 8 ” | Dated: __July 27,2023 Mihaw. □□□ foareA Hack 10 HELENA M. BARCH-KUCHTA 1 UNITED STATES MAGISTRATE JUDGE

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