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Sanchez-Martinez v. English

United States District Court, D. Kansas

February 26, 2019

OSCAR SANCHEZ-MARTINEZ, Petitioner,
v.
N.C. ENGLISH, Respondent.

          MEMORANDUM AND ORDER

          John W. Lungstrum, United States District Judge.

         This matter is a petition for habeas corpus filed under 28 U.S.C. § 2241. Petitioner, a prisoner in federal custody, proceeds pro se. He alleges the federal Bureau of Prisons (BOP) denied him due process by failing to provide a certified translator during administrative disciplinary proceedings and by failing to expunge the disciplinary incident report against him after his cellmate accepted responsibility for a disciplinary violation. He seeks the restoration of Good Conduct Time.

         Factual Background

         Petitioner is incarcerated at the United States Penitentiary, Leavenworth, Kansas (USPL), and has been in the custody of the BOP since February 2012. Prior to the incident involved in this matter, he had been the subject of five disciplinary actions.

         In May 2015, during plaintiff's initial classification at USPL, education and unit team staff interviewed petitioner and found him to be proficient in English.

         In August 2017, staff conducting a random search of petitioner's cell discovered a small blue and white piece of paper on top of a towel. The paper was confiscated and tested by the Kansas Bureau of Investigation (KBI) Laboratory, yielding a positive result for FUB-AMB and MDMB-CHMICA, both synthetic cannabinoids.

         The KBI Forensic Laboratory Report was issued on November 13, 2017, and BOP staff prepared an incident report on November 22, 2017, charging petitioner with violation of Code 113, which prohibits the possession of any narcotics, marijuana, drugs, alcohol, intoxicants or related paraphernalia not prescribed by medical staff. The incident report identifies the code charge associated with the alleged violation, the date and time the search was conducted, a description of the item seized by staff and where it was found, the results contained in the KBI report, and an explanation by the chief pharmacist at USPL explaining why the substance seized is considered an intoxicant.

         The incident report was suspended on November 22, 2017, pending a referral for prosecution, and was released for administrative processing on November 27, 2017. Petitioner received the report on the same day and was advised of his rights during the investigation. He stated that he understood those rights and chose not to make a statement. After investigation, staff forwarded the incident report to the Unit Discipline Committee (UDC) for action.

         On November 28, 2017, petitioner appeared before the UDC and stated, in English, “no comment” in response to the charges. The UDC referred the report to the Discipline Hearing Officer (DHO). On the same day, petitioner received a written explanation of his rights, which include the right to have a staff representative, the right to present documentary evidence, and the right to present a statement or remain silent. Petitioner signed a statement showing that he did not want to call witnesses or request the assistance of a staff member during disciplinary proceedings.

         Although petitioner did not request an interpreter, the DHO asked that his case manager, who speaks Spanish and regularly serves as an interpreter, be present during the proceedings.

         The hearing was conducted on December 13, 2017. Petitioner gave a statement denying any knowledge of the contraband and stating that he had been assigned to the cell for five months and his cellmate had been assigned to it for three months.

         The DHO considered that statement, the KBI report, staff reports, and other material and concluded that petitioner had committed the act charged. She noted that the contraband was found on a towel in front of the cell door and had tested as an intoxicant. The DHO also considered relevant petitioner's failure to provide a defense in the initial stages of the investigation, stating that this is common in a scenario where multiple inmates are issued incident reports for the same misconduct. Because of the danger that a prisoner will be coerced into accepting responsibility for another's actions, the DHO considers evidence that corroborates ownership of the contraband.

         The DHO imposed sanctions of the loss of 41 days of Good Conduct Time, 90 days loss of e-mail privileges, 90 days loss of phone privileges, and a fine of $41.00. Petitioner was advised of the findings and his appeal rights, and the DHO issued a written ...


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