Opinion
CV-21-00266-TUC-JAS (LCK)
03-10-2022
Philip Andra Grigsby, Petitioner, v. Acting Warden D. Colbert, Respondent.
REPORT AND RECOMMENDATION
Petitioner Philip Grigsby, incarcerated at the United States Penitentiary in Tucson, Arizona, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Kimmins for Report and Recommendation. LRCiv 72.2(a)(2). Before this Court are the Petition and Supporting Memorandum (Docs. 1, 2), Respondent's Amended Answer and Motion to Dismiss (Doc. 40), and Petitioner's Reply and Notice of Errata (Docs. 24, 36). The Magistrate Judge recommends the District Court, after its independent review of the record, grant the Petition in part and deny it in part.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner is serving a 260-year sentence for his 2014 conviction on 8 counts of sexual exploitation of a child (18 U.S.C. § 2251(a)), 1 count of possession of child pornography (18 U.S.C. § 2252 (a)(4)(B)), and 1 count of felon in possession of a firearm (18 U.S.C. § 922(g)(1)). (Doc. 40, Ex. A ¶ 3, Attach. 1.) The sentencing court prohibited Petitioner from having contact with his children, which included the victim and her brother. (Id., Ex. A ¶ 4, Attach. 2.)
In September 2019, staff from the U.S. Attorney's Office for the District of Kansas advised Bureau of Prisons (BOP) Legal Assistant Lorri Mitchell that Petitioner allegedly had used Facebook to communicate with his daughter. (Doc. 40, Ex. A ¶ 6; Doc. 40-1 at 50-51.) The Facebook account included a picture of Petitioner in his prison uniform, copies of documents issued to Petitioner in prison, requests for people to contact him at his prison address, and messages from Petitioner related to his relationship with his children. (Doc. 40-1 at 40, 42-44; Doc. 45 at 2, 4.) Both Petitioner's children were "friends" with the account and had posted comments at least once. (Doc. 45 at 2, 4.) Mitchell wrote Incident Report Number 3308868 for criminal mail abuse. (Doc. 40-1 at 31-33.)
When Petitioner was served with IR 3308868, on September 27, 2019, Lieutenant G. Merrell recorded that Petitioner declined to make a statement. (Doc. 40-1 at 33.) When Petitioner was brought before a committee, he stated: "I have not contacted my children. I'm in the court process to remove a no contact order. My son is an adult and not my victim. My children are not listed as my victims." (Id. at 32.) The Committee referred the IR to a Detention Hearing Officer (DHO). (Id.) The DHO determined Petitioner committed the prohibited act of Use of the Mail for an Illegal Purpose. (Id. at 29.) Upon appeal, the Regional Director concluded that Petitioner's due process rights were implicated by the absence of a record on why only one of Petitioner's requested witnesses appeared. (Id. at 28.) The Director returned the matter to the DHO for a rehearing. (Id. at 28-29.)
On March 19, 2020, Petitioner was notified of his rights for the upcoming hearing. (Id. at 34.) Petitioner elected to have a staff representative, and one was appointed that same day. (Id. at 35-36.) Petitioner identified and requested two inmate witnesses, which the DHO allowed. (Id. at 35.) The hearing was postponed so that Petitioner's staff representative could contact the warden's office in search of a letter Petitioner stated his mother had sent to the warden; no letter was located. (Id. at 22, 24.) When the hearing resumed, Petitioner again denied contacting his children and stated that the Facebook page belonged to his mother. (Id. at 23.) The DHO concluded Petitioner had committed the prohibited act - Use of the Mail for an Illegal Purpose (Code 196). (Id. at 25.) As a sanction, Petitioner lost 41 days of Good Conduct Time (GCT), was placed in disciplinary segregation for 60 days, and lost telephone and email privileges for 180 days. (Id. at 2526.) The DHO's report was completed on April 16, 2020. (Id. at 26.)
DISCUSSION
The Petition contains four claims (Doc. 1); however, the Court previously dismissed Claim 3 (Doc. 9). Respondent argues that all three remaining claims fail to establish a violation of Petitioner's constitutional rights.
Claim 1
In relation to the IR, Petitioner alleges a lack of evidence, staff misconduct, falsification of documents, staff harassment, due process and equal rights violations, illegal removal of GCT, unreasonable search and seizure, destruction of belongings, and denial of access to the law library.
As an initial matter, Petitioner alleges that he was denied access to the law library during a COVID-19 lockdown, and that a BOP employee conducted an unlawful search and seizure, destroyed his photographs and documents, and interfered with his court access. Further, Petitioner alleges that he was subjected to discrimination by BOP staff based on his race, gender non-conforming identity, and status as a sex offender. Just as the Court dismissed Claim 3 because it did not contest the validity or duration of Petitioner's imprisonment (Doc. 9 at 2-3), these allegations relate to Petitioner's conditions of confinement. Thus, these portions of Claim 1 would arise, if at all, under civil rights law, not habeas corpus. See Muhammad v. Close, 540 U.S. 749, 750-751 (2004); Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011) (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) ("[W]hen a prisoner's claim would not 'necessarily spell speedier release,' that claim does not lie at 'the core of habeas corpus,' and may be brought, if at all, under § 1983."). Therefore, Petitioner's allegations based on access to the law library and the courts, discrimination, unreasonable search and seizure, and destruction of evidence shall be dismissed for lack of habeas jurisdiction.
With respect to the search of his cell and destruction of property, Petitioner cited several federal cases. (Doc. 24 at 5-6.) Each of those cases is based on 42 U.S.C. § 1983, which provides jurisdiction for an inmate's claims regarding his conditions of confinement. None of the cases were brought under the habeas statute because it does not provide jurisdiction for such claims.
Next, with respect to whether Petitioner received due process during the disciplinary process, Petitioner asserts that his mother had a Facebook page in his name; he was denied the ability to contact his mother (by phone or email) to verify the Facebook page; there was no evidence Petitioner asked his mother to open the Facebook page or to post on it, or that he mailed anything to her; he was denied a requested polygraph; he did not admit that he attempted to contact his children; and he had no direct communication with his children through Facebook. Petitioner also asserts that he was denied a transcript of his phone call with his mother, which he needed to appeal the DHO's decision.
Under 28 U.S.C. § 2241, inmates can petition for relief if they demonstrate they are in custody in "violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c). An inmate may obtain relief under § 2241 for loss of good time credits if the prison disciplinary proceeding did not comply with due process. Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989). At a disciplinary hearing, due process requires that the inmate: (1) receive written notice of the infraction(s) at least 24 hours before the disciplinary hearing; (2) has a right to call witnesses unless it would be unduly hazardous to institutional safety or correctional goals; (3) is entitled to assistance in preparing and presenting a defense to the disciplinary charge; (4) is entitled to a copy of the disciplinary findings; and (5) has a right to have a sufficiently impartial decision maker. Wolff v. McDonnell, 418 U.S. 539, 563-571 (1974). To comport with due process, a disciplinary decision must be supported by "some evidence" in the record. Superintendent Mass. Corr. Inst. v. Hill, 472 U.S. 445, 445-56 (1985) ("Revocation of good time credits is not comparable to a criminal conviction, and neither the amount of evidence necessary to support such a conviction, nor any other standard greater than some evidence applies in this context.") Petitioner contends that the BOP violated the second and fifth Wolff requirements, and there was not sufficient evidence to support the DHO's decision. After review of the record, it appears to the Court that the BOP complied with the uncontested Wolff requirements, one, three, and four.
The Court first examines Petitioner's right to call witnesses. At the time Petitioner was notified of the rehearing before the DHO, he requested two inmate witnesses. (Doc. 401 at 35.) Those inmates provided written statements for the hearing. (Id. at 37-38.) At that time, Petitioner did not request that his mother be a witness for the hearing. At the hearing on March 27, 2020, Petitioner asked to present a letter from his mother to the warden. (Doc. 40-1 at 24.) The hearing was postponed until April 16 to allow Petitioner to obtain that evidence. (Id.) When the hearing resumed, on April 16, Petitioner had no documentary evidence to present at the hearing. (Id.) The DHO documented that Petitioner's staff representative "made a concerted effort to retrieve the letter." (Id. at 22.) There is no evidence, and Petitioner does not contend, that he requested additional time to obtain evidence from his mother.
Petitioner has offered no evidence that the DHO denied Petitioner the right to present any witnesses or documentary evidence at the hearing. Petitioner initially argued that he was never informed that his mother could be a witness. In support, Petitioner cited the initial DHO Report, which is not relevant because it was sent back on appeal for a new hearing. More importantly, at the time Petitioner was given notice of the second hearing, he also was provided a Notice of Inmate Rights for the hearing. (Doc. 40-1 at 34.) That document informed him that he had a right to call witnesses or present witness statements if the person was unavailable. (Id. ¶ 3.) Further, Petitioner acknowledged that he was informed, at the rehearing, that his mother could be a witness. (Doc. 2 at 4.) And the hearing was postponed for him to obtain evidence from his mother. Therefore, it is without question that Petitioner knew he had a right to call witnesses and, specifically, that he had a right and opportunity to present evidence from his mother.
Next, Petitioner argues that he was not allowed to call or email his mother for evidence (because those privileges had been suspended); therefore, his only option was to write to her. (Id.) As he acknowledged, Petitioner retained the right to write to his mother, and he did not request additional time to do so. (Doc. 40-1 at 24 (DHO documented that, on April 16, 2020, Petitioner agreed he was ready to proceed with the hearing).) In his Reply, Petitioner argues that he was denied a transcript from an April 20, 2020 telephone call with his mother; and the DHO did not consider his mother's April 24, 2020 affidavit. Although Petitioner contends this evidence came into existence "during the disciplinary process," the DHO issued his decision on April 16, 2020 (Doc. 40-1 at 22-26). The DHO could not have denied Petitioner the right to submit evidence that did not exist at the time of his decision.
Lorri Mitchell, the legal assistant at USP Tucson, stated that inmate telephone calls are not regularly transcribed. BOP has no record that a telephone call with Petitioner on April 20, 2020, was transcribed. (Doc. 40, Ex. A ¶ 7.) Petitioner did not dispute this statement in his Reply.
Finally, Petitioner argues that his request for a polygraph was denied. In support, Petitioner cites BOP Program Statement 5110.13. The cited program statement provides that requests for a polygraph generally will be denied unless related to a criminal felony investigation. Petitioner has not established a right to a polygraph during his disciplinary proceeding or that the denial violated his right to due process.
The cited program statement is available at the following website: https://www.bop.gov/policy/progstat/5110013.pdf.
Petitioner also contends his right to an impartial decision maker was violated. He argues the DHO was biased because he did not inform him that his mother could be a witness. However, Petitioner received a notice of his right to call witnesses, and he acknowledges that he was told his mother could be a witness at the rehearing, which preceded the relevant DHO decision. Additionally, Petitioner argues that the DHO was biased because his determination that Petitioner was not entirely credible was not supported. The DHO relied upon Petitioner's statement that he had not contacted his children; he was in the process of asking the court to allow contact with his children; and his children were not listed as his victims. (Doc. 2 at 2.) It was the DHO's duty to make credibility findings. Further, there is support for the DHO's credibility finding. There were posts on Petitioner's Facebook page that were, at least arguably, directed at his children. (Doc. 40-1 at 42, 43; Doc. 45 at 2.) Both his children had commented on at least one of the posts and were friends with the Facebook account. (Doc. 45 at 2, 4.) Thus, there was foundation to question Petitioner's statement that he had not contacted his children. Further, one of Petitioner's children was his victim and there was a no-contact order as to both of his children. (Doc. 40-1 at 14, 46.) The DHO's credibility finding does not reflect bias. Finally, "[a]judicators are entitled to a presumption of honesty and integrity . . . and thus the constitutional standard for impermissible bias is high." Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir. 2003) (citing Withrow v. Larkin, 421 U.S. 35, 47 (1975)). Although Petitioner disagrees with the DHO's decision, he has not established the DHO was biased against him.
The DHO noted that, in December 2017, the court in Petitioner's criminal case had denied a motion to rescind the no-contact order regarding Petitioner's children. (Doc. 40-1 at 24.) In response, Petitioner cited the docket in his criminal case, which reveals that he filed subsequent motions requesting the lifting of the no-contact order. (Doc. 20-1.) While true, at the time of the DHO hearing, the no-contact order remained in effect. (Id. at 4.)
As a final matter, to comport with due process, the DHO's findings must be supported by some evidence in the record. The Hill standard is minimal and precludes an independent assessment of the credibility of witnesses or even a weighing of the evidence. Cato v. Rushen, 824 F.2d 703, 704 (9th Cir. 1987). The "some evidence" standard requires us to ask if there is "any evidence in the record that could support the conclusion reached by the disciplinary board." Id. (quoting Hill, 472 U.S. at 455-56).
Petitioner was charged with use of the mail for an illegal purpose. To support his finding that Petitioner committed the violation, the DHO relied upon L. Mitchell's description in the IR. (Doc. 40-1 at 24, citing Doc. 40-1 at 31):
I received information that inmate Grigsby, Philip, #22325-031, has been contacting his children via Facebook. Inmate Grigsby has been ordered to not have any contact with his children who are his victims. The profile name on the Facebook account is Philip Grigsby and the profile picture is a picture of inmate Grigsby. The friends list shows inmate Grigsby's son and daughter is [sic] friends with him. Additionally, there are pictures of prison documents posted and he admits to attempting to contact his children.
The DHO referred to photographs of prison documents posted on Facebook and stated, "[t]his is indication of pictures taken inside a Bureau of Prisons facility." (Doc. 40-1 at 24.) The DHO questioned Petitioner's credibility and gave greater weight to L. Mitchell. (Id.) The DHO relied upon information from an FBI analyst who determined the Facebook account was opened in 2014 and postings had been made 29 times during six-time frames. (Id.) A September 2014 post stated:
I was never given the chance to tell my children that it was all my fault and that I am sorry. I have written numerous courts and attorneys trying to lift the no contact order. I write my children each a letter every month that I can't mail while they are children. In six years when my children are eighteen they will receive a large box full of correspondence from their father and will see that their father has loved and cared for them all this time.(Id. at 24; Doc. 45 at 2.) The DHO also cited a June 22, 2017 post, which stated: "To any of my friends I left behind, I would like to hear from you. You can contact me at: Philip Grigsby22325031 USP Tucson PO Box 24550 Tucson, AZ 85734 Would really like to hear from you." (Doc. 40-1 at 24-25, 40.)
The DHO stated that he relied upon additional documentation submitted with the IR, from which he did not quote, and he determined that evidence corroborated his finding. (Id. at 25.) A November 21, 2018 post, stated: "You can write the judge and tell him you want to resume contact with your father." (Id. at 43.) It provided Petitioner's full name, criminal case number, and the assigned judge's address. (Id.) The DHO's report and findings, as well as the supporting evidence unquestionably provide some evidence that Petitioner attempted to contact his children in violation of the no contact order. However, the DHO made no findings and relied upon no evidence that substantiates the use of the mail for this purpose.
Respondent submitted a declaration from L. Mitchell to this Court stating it was clear to her the mail had been used to create the Facebook posts because that was the only way for the prison documents to have gotten onto a Facebook page. (Doc. 40-1, Ex. A ¶ 6.) Her conclusion was based on her knowledge that inmates do not have access to a camera, scanner, the internet, or Facebook, and are not allowed to pass documents at visits. (Id.) Mitchell further stated that the use of mail in relation to the Facebook page would have been clear to any BOP staff member. (Id.) Mitchell's statement regarding the United States mail was written in 2021 for purposes of this litigation, it was not part of the record before the DHO. (Doc. 40-1, Ex. A.) In contrast, neither Mitchell's s statement in the IR nor any other evidence she submitted during the adjudication of the IR discussed the use of the mail. Therefore, when the Court searches "the record" for evidence, it cannot consider the 2021 declaration by Mitchell because it was not proffered to the DHO.
The Court will not presume the DHO necessarily possessed the same personal knowledge of BOP procedures as Mitchell, and that he relied upon it without making a written finding to that effect. Further, there is evidence to the contrary. The DHO surmised the pictures of the prison documents had been taken inside the prison. (Doc. 40-1 at 24.) Similarly, the Assistant United States Attorney that provided information to Mitchell (information that also was available to the DHO) presumed Petitioner may have accessed a smartphone in prison. (Id. at 50.) Those two theories suggest electronic, not mail, transmission of documents. The DHO did not mention use of the mail or make any related findings. Because there is no evidence in the record supporting Petitioner's use of mail in relation to the Facebook posts, the Court finds the disciplinary proceeding violated Petitioner's right to due process. Therefore, he is entitled to return of the 41 days of Good Conduct Time that he lost as a result of Incident Report Number 3308868.
Claim 2
Petitioner alleges that he is being denied GCT that should be available under the First Step Act. Specifically, he alleges that he is eligible, in relation to his conviction for felon in possession of a firearm (18 U.S.C. § 922(g)), to earn GCT for completing evidencebased recidivism reduction programming. Petitioner's argument is based on 18 U.S.C. § 3632(d)(4)(A), which provides: "A prisoner, except for an ineligible prisoner under subparagraph (D), who successfully completes evidence-based recidivism reduction programming or productive activities, shall earn time credits as follows . . ." Petitioner argues that his conviction under 18 U.S.C. § 922 is not listed under subparagraph D, therefore, he is entitled to earn credits with respect to that conviction.
Subparagraph (D) provides that, "[a] prisoner is ineligible to receive time credits under this paragraph if the prisoner is serving a sentence for a conviction under any of the following provisions of law ...." Two of the listed provisions are Section 2251, relating to the sexual exploitation of children, and Section 2252, relating to certain activities connected to material involving the sexual exploitation of minors. 18 U.S.C. § 3232(d)(4)(D)(xxxix), (xli). Based on the plain language of the statute, a prisoner is not eligible for GCT under this program if he is serving a sentence based on 18 U.S.C. §§ 2251, 2252 . Because Petitioner is a prisoner currently serving a sentence for convictions under two of the listed sections, he is ineligible for GCT for participating in evidence-based recidivism reduction programming. Nothing in the statute allows him to earn GCT with respect to a conviction based on a crime not listed in § 3632(d)(4)(D), if he is simultaneously serving a sentence for crimes that are listed in that subsection. For that reason, Claim 2 is without merit.
Claim 4
Petitioner alleges his sentence monitoring computation data is incomplete and/or incorrect in several ways: it includes 18 U.S.C. § 2260, a crime of which he has not been convicted; the use of capital letters creates confusion between § 2251(a), of which he was convicted, and § 2251A, a charge of which he was not convicted; the verbiage of the offense titles is incorrect; and the § 922(g) conviction is not listed as FSA eligible. (Doc. 1, Ex. 13.) Respondent argues that this claim is not cognizable in this proceeding because the alleged errors have no bearing on the length of Petitioner's incarceration. In response, Petitioner argues that he has a due process and liberty interest in GCT as to his conviction for violating 18 U.S.C. § 922(g). As discussed with respect to Claim 2, Petitioner is not eligible for GCT under the First Step Act because he is serving a sentence that excludes him from participating in that program. The remainder of his assertions are alleged clerical errors. He does not contend that his aggregated prison term is incorrect or that his calculated release date is erroneous.
"[W]hen a prisoner's claim would not 'necessarily spell speedier release,' that claim does not lie at 'the core of habeas corpus,' and may be brought, if at all, under § 1983." Skinner, 562 U.S. at 535 n.13 (quoting Wilkinson, 544 U.S. at 82). In other words, "habeas jurisdiction is absent . . . where a successful challenge to a prison condition will not necessarily shorten the prisoner's sentence." Ramirez v. Galaza, 334 F.3d 850, 858-59 (9th Cir. 2003). Because correction of the alleged errors in Petitioner's sentence monitoring computation data would not dictate a shortening of Petitioner's period of confinement, Petitioner's challenge on that basis is not within this Court's habeas jurisdiction. Additionally, the Court has reviewed the Sentence Monitoring Computation Data as submitted by Petitioner (Doc. 1, Ex. 13). For the reasons set forth in Respondent's Answer (Doc. 40-1 at 16-17), the Court finds no substantive errors in that document.
RECOMMENDATION
The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order GRANTING Respondent's Motion to Dismiss (Doc. 40), in part, and DENYING it, in part. Specifically, the Magistrate Judge recommends denying the motion to dismiss by granting relief on Claim 1 of the Petition to the extent it seeks restoration of Petitioner's 41 days of Good Conduct Time (lost as a sanction pursuant to IR 3308868), but granting the motion to dismiss by DISMISSING the remainder of Claim 1, and the entirety of Claims 2 and 4. The Court may direct Respondent to timely restore Petitioner's 41 days of GCT or conduct a new disciplinary hearing if BOP possesses evidence to support a finding that Petitioner committed the prohibited act of Use of the Mail for an Illegal Purpose. See Brown v. Smith, 828 F.2d 1493, 1495-96 (10th Cir. 1987); Amarame v. Graber, No. CV 10-057-TUC-BPV, 2011 WL 1627931, at *5 (D. Ariz. Apr. 29, 2011).
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the District Court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV 21-266-TUC-JAS.