Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cedano v. Baxter

United States District Court, N.D. Texas, Abilene Division

March 31, 2017

JOSE LUIS CEDANO, Petitioner,
v.
TYLER BAXTER, Warden, Big Spring Correctional Center, et al., Respondents.

          OPINION AND ORDER [1]

          E. SCOTT FROST, UNITED STATES MAGISTRATE JUDGE

         Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 filed by Petitioner, Jose Luis Cedano, a federal prisoner who was confined at the Big Spring Correctional Center in Big Spring, Texas, at the time petition was filed.[2] In addition to the § 2241 petition and attachments, the Court has a response from the Respondent with an Appendix containing the documents related to the disciplinary cases challenged in this proceeding. (Docs. 1, 1-1, 8, 9.) After considering the pleadings and relief sought by Petitioner, and the applicable law, the Court has concluded that the § 2241 petition must be denied. \

         I. BACKGROUND

         Petitioner is serving a term of 151 months' imprisonment imposed in the United States District Court for the Central District of California, after he pled guilty to possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(b)(1). (GovernmentAppendix, (doc. 9) at 3-7.) Cedano's current projected good conduct time release date is August 31, 2018. See www.bop.gov Jose Luis Cedano, Reg. No. 44212-112, last visited March 31, 2017.

         Although Cedano challenges only one disciplinary action in this § 2241 petition, he received two somewhat related incident reports while housed at FCI-Englewood on April 26, 2013, incident report numbers 2437361 and2437363. (Doc. 1, at 10-11; 13-14.) Both incident reports involved the discovery of prohibited items in Cedano's possession on April 25, 2013, but only one resulted in the disallowance of good conduct time. The first, incident report number 2437361, is the incident report he challenges in this § 2241 petition. As Cedano correctly points out, he was initially charged with violating BOP disciplinary codes 305 and 328-possession of anything unauthorized and giving or receiving anything of value to or from another inmate or person without staff authorization, respectively. (Attachments to § 2241 Petition, (doc.1-1), at 1-3; doc. 9, at 10, §§ 9 - 10.) The reporting employee stated that he found a Casio G-Shock watch and pen capable of sending and receiving encrypted messages in Cedano's locked locker. (Doc. 9, at 10, § 11.)

         The second incident report, number 2437363, also charged Cedano with possession of anything unauthorized in violation of BOP disciplinary code 305. (Doc. 9, at 13, §§ 9 - 10.) Here, the reporting employee stated that he found a black and silver dual time chronograph watch with a black leather band in Cedano's right pants pocket during a pat search. (Doc. 9, at 13, § 11.) After the prohibited items were discovered, Cedano was placed in administrative detention status in the Special Housing Unit (SHU). (Doc. 1-1 at 23; see generally infra note 6.)

         Both incident reports were investigated on April 26, 2013. In both cases, the investigator advised Cedano of his qualified right to remain silent. (Doc. 9, at 11, § 23; 14, § 23.) Cedano made statements regarding both incident reports. With regard to incident report number 2437361, he stated: "I traded leather craft items for the watch and pen. I am known as Hustle Man on the yard." (Doc. 9, at 11, § 24.) With regard to incident report number 2437363, he stated: "I made that watch band, and traded craft items for the watch." (Doc. 9, at 14, § 24.)

         On April 29, 2013, Cedano appeared before a Unit Disciplinary Committee (UDC) on both incident reports and provided statements on both. (Doc. 9, at 11, § 21; 14, § 21.) With regard to the second incident report 2437363, the UDC recorded Cedano's statement as: "Inmate admits that it was his." (Id. at 13, § 17.) Based on this statement and the reporting employee's description of the incident, the UDC found Cedano violated BOP disciplinary code 305 as charged and suspended his commissary and telephone privileges for 60 days. (Id. at 13, §§ 18-20.) As Petitioner did not lose good conduct time, he does not further challenge this charge and it is not further addressed in this proceeding.

         With regard to first incident report 2437361, the UDC recorded Cedano's statement as: "I didn't know I wasn't suppose [sic] to trade goods with other people, but the material that they say they found was not mine." (Doc. 9, at 10, § 17.) The UDC referred this particular incident report to the Disciplinary Hearing Officer (DHO) to consider sanctions not available to the UDC. (Id. at §§ 18-19.) Cedano was advised of his rights before the DHO. (Id. at 14.)

         The violations originally charged in incident report number 2437361 were subsequently amended to a violation of code 108, possession, manufacture, introduction, or loss of a hazardous tool.[3] (Doc. 9, at 10, §§ 9-10 [hand-writing replacing prior typed section].) The description of the misconduct remained the same. (Id. at § 11.) Cedano was expressly provided notice of the amendment incident and code change on May 16, 2013. (Id. at § 20; Doc. 9, at 19, § V; 21.) Also on May 16, 2013, Cedano was provided the opportunity to request witnesses and a staff representative. (Doc. 9, at 21.) He requested a staff representative but no witnesses. (Id.) On June 11, 2013, he requested a different staff representative. (Doc. 9, at 23.)

         Cedano and his staff representative appeared before the DHO on June 12, 2013. (Doc 9, at 18, §§ I - II.) The staff representative presented a statement, which the DHO summarized as:

Originally Officer Michelsen was requested as Staff Representative. Officer Michelsen was not available so Ms. Hufnagle was Staff Representative which inmate Cedano agreed. Ms. Hufnagle stated his concern was that the code was amended after the incident report was written. She stated she explained it was amended because of the body of the report. He also has an issue that he got a 305 the same day that was handled at the UDC (IR #2437363 was reviewed and addressed items other than the G-Shock watch and pen which are addressed in this incident report).

(Id. at § II (B).) Cedano also provided a statement, which the DHO recorded as:

I traded with another inmate for those items here. I never knew they could be used to send messages. It was just in my locker I wasn't hiding them or anything. I never used them for messages I didn't even know they were for that. Please dismiss the 108 shot[ ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.