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Gonzalez v. United States

United States District Court, D. Minnesota

January 5, 2015

Victor M. Gonzalez, Petitioner,
v.
United States of America, [1] Respondent.

REPORT AND RECOMMENDATION

LEO I. BRISBOIS, Magistrate Judge.

This matter comes before the undersigned United States Magistrate Judge upon Petitioner Victor M. Gonzalez's Petition for Writ of Habeas Corpus, [Docket No. 1]. The present case has been referred to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. For reasons discussed herein, the Court recommends that Petitioner Gonzalez's Petition for Writ of Habeas Corpus, [Docket No. 1], be DENIED and that the present action be DISMISSED with prejudice.

I. BACKGROUND AND STATEMENT OF FACTS

On or about April 24, 2014, Petitioner Victor M. Gonzalez ("Petitioner"), an individual in the custody of the Federal Bureau of Prisons (BOP) currently housed at the Federal Prison Camp in Duluth, Minnesota ("FPC-Duluth"), proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Petition [Docket No. 1]). Petitioner argues that the BOP unlawfully deprived Petitioner of certain "good conduct time" and that, as a result thereof, Petitioner faces detention beyond his lawful release date. (Id.)

Petitioner challenges the constitutionality of a BOP disciplinary proceeding that resulted in (1) the determination that Petitioner committed a Code 112 BOP violation, namely, Use of Alcohol; and (2) Petitioner's deprivation of good conduct time. Petitioner argues that the BOP unlawfully deprived Petitioner of good conduct time as a result of a positive ethyl glucuronide test. (Id. at 3). Petitioner argues that the test, while indicative of alcohol use, did not unequivocally indicate Petitioner's intentional alcohol use, [2] and the BOP failed to confirm the test prior to penalizing Petitioner and deducting good conduct time, in violation of Petitioner's due process rights. (Id.) Petitioner argues that the BOP did not afford Petitioner a "full appeal process, " also in violation of Petitioner's due process rights, and Petitioner requests the Court reinstate Petitioner's good conduct time and return Petitioner to home confinement. (Id.) Petitioner represents that he has exhausted all available internal, administrative remedies. (Id. at 5).

Petitioner is currently serving a 57-month sentence, to be followed by five years of supervised release, for Importation of Methamphetamine, in violation of 21 U.S.C. §§ 952 and 960. (Buege Decl. [Docket No. 5], ¶ 3). Petitioner's current projected release date is January 6, 2015. (Id.) Petitioner participated in the BOP's Residential Drug Abuse Program (RDAP) from October 12, 2012, to July 3, 2013, while incarcerated at FPC-Duluth. (Id. ¶ 4). On July 16, 2013, the BOP transferred Petitioner to the Behavior Systems Southwest Residential Reentry Center (RRC) to complete the Transitional Drug Abuse Treatment (TDAT) component of RDAP. (Id.) On August 7, 2013, the BOP placed Petitioner on home confinement. (Id.)

On November 3, 2013, Petitioner submitted a sample for urinalysis; the sample was sealed, assigned a specimen number, and packaged in front of Petitioner. (Id. ¶ 5). The Redwood Toxicology Laboratory performed an ethyl glucuronide test, and on November 12, 2013, at approximately 8:12 a.m., Petitioner's sample tested positive for alcohol (ethanol). (Id.) The BOP subsequently charged Petitioner, by an incident report, with Use of Alcohol, a Code 112 BOP violation. ( Id., Attachment B). BOP personnel gave Petitioner a copy of the incident report and advised Petitioner of his rights. (Id. ¶ 6). During the investigation that followed, Petitioner stated that he drank Dayquil on November 2, 2013, because he was not feeling well. (Id.) He stated that he was unaware that Dayquil contained alcohol "because it was non-drowsy." (Id.) Petitioner further stated that he was unaware that rubbing alcohol and over-the-counter cough medicine were prohibited substances. (Id.) However, BOP personnel provided inmates/residents at RRC, including Petitioner, with a copy of the facility rules and regulations, advising residents that use of alcohol in any form by any person within the custody of the BOP is strictly prohibited, including alcohol in the form of cologne, mouthwash, perfumes, after shave, rubbing alcohol, and any over-the-counter medicine containing alcohol (e.g., Nyquil). (Id.)

Upon completion of the investigation of Petitioner's charged violation, the investigator believed sufficient evidence existed to support a finding that Petitioner had committed a prohibited act. (Id. ¶ 7). Petitioner subsequently received two forms, titled Inmates Rights at Center Discipline Committee Hearing and Notice of the Center Discipline Committee Hearing. ( Id., Attachment C). The forms advised Petitioner of his rights before the Center Discipline Committee, the opportunity to request a staff representative, the opportunity to call witnesses, and his right to administratively appeal the decision. (Id. ¶ 7). Petitioner did not request a staff representative or any witnesses prior to the hearing and affirmatively waived the 24-hour written notice of charges prior to the hearing. ( Id., Attachment D).

Petitioner appeared before the Center Discipline Committee on November 13, 2013. (Id. ¶ 8). Petitioner was advised of his rights and admitted the charge, stating that he drank a Wal-Mart brand of Nyquil. (Id.) Petitioner did not request a staff representative or call any witnesses at the hearing. (Id.) The Committee determined that Petitioner committed the prohibited act and recommend loss of good conduct time and removal of Petitioner from home confinement. ( Id., Attachment E).

A Discipline Hearing Officer (DHO) received Petitioner's incident report and the Committee's findings for certification, reviewed the materials to ensure compliance with applicable discipline policies and due process, and completed the "Checklist for CDC Certification" on December 6, 2013, signing and dating the report and certifying compliance with all applicable disciplinary requirements. (Id. ¶¶ 9-10, Attachment F). The DHO found Petitioner guilty of committing the prohibited act. (Id. ¶ 10).

The BOP has established an administrative remedy protocol that affords federal inmates the opportunity to voice concerns and appeal decisions concerning their confinement and provides BOP staff an opportunity to resolve issues internally before an inmate seeks relief via the judicial system. See 28 C.F.R. §§ 542.13-542.18. Pursuant to applicable regulations, Petitioner appealed the CDC findings and DHO certification on January 14, 2014; Petitioner's appeal was denied. (Id. ¶ 11, Attachment G). Petitioner subsequently appealed to the BOP's central office; Petitioner did not receive a response, indicating a denial of his administrative remedy appeal. (Id.) Petitioner exhausted his administrative remedies. (Id.)

II. PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241

Petitioner challenges the above-described disciplinary proceeding - the determination that Petitioner committed a prohibited act and the subsequently-imposed penalty - as unconstitutional, alleging the following due process violations: (1) the toxicology report indicated but did not unequivocally confirm Petitioner's intentional consumption of alcohol, and the BOP did not perform a second, verifying test; (2) the BOP did not inform Petitioner that rubbing alcohol and over-the-counter cough medicine were prohibited substances; (3) the BOP did not inform Petitioner that sanctions for a Use of Alcohol violation could include a return to prison; and (4) the BOP did not afford Petitioner a "full appeal process." Additionally, in his reply to Respondent's Response, [Docket No. 7], Petitioner argues that the BOP never informed Petitioner that BOP rules applied during Petitioner's ...


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