Jackson-Mackay v. Gunther

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
David A. Jackson-Mackay,
Petitioner,
v.
Jason Gunther,
Respondent.
No. CV-25-02103-PHX-JAT (ASB)
REPORT AND RECOMMENDATION
TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES
DISTRICT JUDGE:
Pending before the Court is Petitioner David A. Jackson-Mackay’s pro se Petition
for a Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 1).1 Petitioner is in the custody
1 Petitioner previously filed two Petitions for a Writ of Habeas Corpus under 28
U.S.C. § 2241. Petitioner filed his first such Petition on June 27, 2024, in Case No. CV-
24-01573-PHX-JAT (ASB). In that Petition, Petitioner argued he should have received
earned time credits from the date his sentence was imposed and that he should have
received earned time credits regardless of his recidivism risk score. Jackson-Mackay v.
Gunther, CV-24-01573-PHX-JAT (ASB) (D. Ariz. Feb. 25, 2025) (Doc. 7) (summarizing
petition). That Petition was denied and dismissed. (Id.) Petitioner’s second § 2241
Petition was filed on April 25, 2025, in Case No. CV-25-01393-PHX-JAT (ASB). In that
Petition, Petitioner contended the Bureau of Prisons had improperly classified him as an
Adam Walsh offender. Jackson-Mackay v. Gunther, CV-25-01393-PHX-JAT (ASB) (D.
Ariz. Aug. 19, 2025) (Doc. 6) (summarizing petition). The second Petition was denied and
dismissed. (Id.)
“No circuit or district judge shall be required to entertain an application for a writ
of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court
of the United States if it appears that the legality of such detention has been determined by
a judge or court of the United States on a prior application for a writ of habeas corpus,
except as provided by section 2255.” 28 U.S.C. § 2244(a). This means that courts may
dismiss a subsequent petition because it raises the same grounds as a previous petition or
because it includes claims “that [the petitioner] could have raised in his first [petition].”
McCleskey v. Zant, 499 U.S. 467, 483, 489 (1991). Because Petitioner is raising different
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of the Federal Bureau of Prisons (“BOP”). Respondent timely filed an Answer to the
Petition for Writ of Habeas Corpus and included therein a request to dismiss this matter.
(Doc. 17.) Petitioner did not file a Reply. For the reasons that follow, the undersigned
recommends the Petition for Writ of Habeas Corpus be denied and dismissed.
I. PROCEDURAL BACKGROUND2
Petitioner is serving a sentence of 46 months’ imprisonment for convictions in the
United States District Court for District of Wyoming for Wire Fraud, in violation of 18
U.S.C. § 1343; Willful Failure to Collect or Pay Over Tax, in violation of 26 U.S.C. §
7202; and Filing False Individual Income Tax Return, in violation of 26 U.S.C. § 7206.
(Doc. 17-1 at 12.)
A. Petitioner’s Whereabouts; Failure to Update Address
At the time he filed the Petition, Petitioner was incarcerated at Federal Correctional
Institution-Phoenix (“FCI-Phoenix”), located in Phoenix, Arizona, in the District of
Arizona. (Doc. 1 at 1.) As this case progressed, Petitioner was transferred to a residential
reentry center (i.e., “halfway house”) in Wyoming. (Doc. 17 at 1, n.1.) However, the BOP
website shows Petitioner is now back at FCI-Phoenix, with an anticipated release date of
September 22, 2026. See Federal BOP, Find an Inmate, https://www.bop.gov/inmateloc/
(last visited February 18, 2026).
In this Court’s Screening Order, the Court ordered Petitioner that he “must file and
serve a notice of a change of address” if he were to have any change of address. (Doc. 5
at 2.) The Court warned Petitioner that “[f]ailure to comply may result in dismissal of this
action.” (Id.)
The docket shows that Petitioner filed a notice of change of address upon his transfer
claims in this Petition from those he raised in first two Petitions, this matter has not been
dismissed as a successive petition. However, any future petitions could be subject to
dismissal under the law described above.
When undersigned uses the citation “Doc.” for the remainder of this Report and
Recommendation, undersigned refers to documents filed in CV-25-02103-PHX-JAT
(ASB).
2 Unless otherwise indicated, all factual references set forth herein are taken from the
exhibits attached to Respondent’s Answer to the Petition. Petitioner contests the veracity
of some of the statements contained in the exhibits (See Doc. 1); those issues will be
addressed where appropriate throughout this Report and Recommendation.
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to the Wyoming halfway house. (Doc. 20.) However, mail sent to that address was
returned as undeliverable. (Doc. 21.) As indicated supra, the BOP website indicates
Petitioner is no longer at the address in Wyoming that he provided. On this basis, the Court
could dismiss the Petition. (See Doc. 5 at 2.) To provide a more complete Report and
Recommendation to the Court, however, and recognizing that any such dismissal would be
without prejudice, undersigned will more fully analyze the Petition. Further, as a courtesy,
undersigned will order that the Clerk of Court mail a copy of this Report and
Recommendation to Petitioner at FCI-Phoenix; Petitioner is again reminded of his
obligation to file a notice of change of address because his address of record remains in
Wyoming.
B. Parties’ Filings
In his Petition, Petitioner asserts one ground for relief, claiming he was denied
adequate due process protections during institutional disciplinary proceedings. (Doc. 1 at
8-25.) Petitioner contends he exhausted his administrative remedies before filing his
Petition. (Id. at 2-5, 8, and 26.)
In opposition, Respondent argues Petitioner failed to exhaust his administrative
remedies. (Doc. 17 at 8-10.) Respondent also contends Petitioner was afforded due
process in the disciplinary process. (Id. at 11-17.) Thus, Respondent argues the Petition
should be denied and dismissed. (Id. at 17.)
II. FACTUAL BACKGROUND
A. Disciplinary Proceeding
On September 26, 2023, while incarcerated at FCI-Coleman Low, in Coleman,
Florida, Petitioner was cited in Incident Report (“IR”) 3831669 for the violation of
Possessing a Hazardous Tool (Prohibited Act Code 108). (Doc. 17-1 at 22-25.)
Specifically, an investigation by the institution’s Special Investigative Services (“SIS”)
staff concluded that Petitioner, “while purporting to represent an advocacy group called
Justice Reform Network LLC, sent requests to staff on behalf of other inmates utilizing a
contraband cell phone.” (Id. at 22.) Among the emails sent with the phone was one that
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requested any fees associated with the request be billed to a credit card account belonging
to a known alias of Petitioner. (Id. at 22, 27.) According to the IR author, Petitioner
“admitted he utilized a contraband cell phone to author the emails to advocate on behalf of
other inmates and to prompt Unit Team to fulfill requests they would otherwise neglect.”
(Id. at 22.) Petitioner was read the IR by staff. (Id. at 25.) He responded, “[N]o comment.”
(Id.) He was given a copy of the IR on September 26, 2023. (Id. at 17.)
After the initial SIS investigation, the IR was reviewed by the Unit Disciplinary
Committee (“UDC”). (See Doc. 17-1 at 24-25.) At the UDC stage, Petitioner denied
having admitted to using a phone. (Id. at 24.) Instead of making findings, the UDC referred
the matter to a Disciplinary Hearing Officer (“DHO”) for a hearing. (Id.)
On September 28, 2023, Petitioner received notice of the DHO hearing. (Doc. 17-
1 at 34.) He requested to have a staff representative and a witness at the hearing. (Id.) He
signed a written advisement of his rights. (Id. at 35.)
On October 6, 2023, Petitioner’s DHO hearing took place.3 He waived his requested
staff representative and acknowledged same in writing. (Doc. 17-1 at 36.) He denied the
charge, stating the following: “I didn’t send the emails. I wrote them, but other people
typed them and sent them.” (Id. at 17.) He called another inmate as a witness.4 (Id. at 18.)
That witness stated, “I sent all the emails for him. He wasn’t allowed to use the cell phone.”
(Id.) The DHO discussed with Petitioner how Petitioner’s “involvement in the scheme
by either writing out the emails and/or sending them would carry the same weight as the
actual code if [Petitioner] were aiding and/or assisting other inmates in carrying out this
scheme with the use of a cellular phone.” (Id. at 19-20.) After summarizing the witness
statements and IR, the DHO referred to the SIS investigation, which reflected that
Petitioner made a statement on September 15, 2023 to SIS staff. (Id. at 20.) In that
statement, Petitioner apparently “admitted to borrowing cell phones to send emails, but
3 The hearing officer provided a declaration that comports with the facts as indicated
below. (Doc. 17-1 at 4-9.) Rather than cite to that declaration further, the Court’s recitation
of the facts is based on the documents created contemporaneously with the events.
4 In his Petition, Petitioner names this inmate as Mr. Warnick. (Doc. 1 at 20.)
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denied owning the phones.” (Id.) Petitioner denied doing legal work but admitted to trying
to help the other inmates resolve their issues when Unit Team was not responsive. (Id.)
The DHO continued, “You (Petitioner) figured that if Executive Staff and Unit Team
received the request from a legal advocacy group as opposed to an inmate, they would be
more responsive.” (Id.) The DHO found that Petitioner’s statement to SIS staff “indicates
[Petitioner] accessed the phone to send the emails [him]self, which totally contradicts
[Petitioner’s] statement to the DHO.” (Id.) The DHO therefore found “no credibility” to
Petitioner’s statement or to the other inmate’s statement. (Id.) The DHO concluded,
“Based upon the SIS investigation and the written report, the DHO determined you
(Petitioner) committed the prohibited act of conduct which disrupts most like possession
of a cellular phone, code 199 most like 108, and sanctioned (Petitioner) accordingly.”5 (Id.)
As for sanctions, Petitioner lost 41 days of good conduct time, as well as his visitation and
phone privileges for one year. (Id.) The DHO provided Petitioner with a copy of the DHO
Report on October 13, 2023, which advised Petitioner he had 20 days to appeal. (Id. at 21,
136.)
B. Administrative Remedies
Petitioner filed multiple administrative remedies about the disciplinary proceeding
in various offices and at various levels. Undersigned will provide a chronological history
of those remedies.
On the same day that he was given the DHO Report, Petitioner appealed that DHO
Report to the Southeast Regional Office. (Doc. 17-1 at 136-142.) Petitioner claimed that
he had never possessed a cellular phone and had not been found in possession of one. (Id.
at 136.) He further argued that he could not be found guilty of code 199 or a 108, and he
denied ever making the inculpatory statements to SIS staff. (Id. at 136-137.) He clarified
that when he spoke to SIS staff, “I did not deny dictating the emails. Specifically, I stated
that I handwrote the emails and delivered the writings to [another inmate]. I did not know
5 Under 28 C.F.R. § 541.8(a)(1), a DHO may find that a prisoner “committed the
prohibited act(s) charged, and/or a similar prohibited act(s) as described in the incident
report.”
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that [the other inmate] was going to use a cell phone to send those emails, and even if I had
known, I am not responsible for how he caused them to be sent.” (Id. at 137.) Petitioner
also claimed that “there was no data that contained my name (or my alias) on the phone,”
or any indication that he had used or possessed the device. (Id.) This appeal was assigned
Remedy No. 1192181-R1. (Id. at 136.)
When he received no response from the Southeast Regional Office, Petitioner
appealed to BOP’s Central Office. He appealed on December 30, 2023, citing the
Southeast Regional Office’s failure to reply to his appeal in a timely fashion under 28
C.F.R. § 542.18.6 (Doc. 17-1 at 134.) His arguments mirrored his first appeal in Remedy
No. 1192181-R1. (See id.) This appeal was received in Central Office on January 12, 2024,
and rejected on January 16, 2024 for failing to file at the correct level. (Id. at 132.) This
appeal was assigned Remedy No. 1187031-A1. (Id.)
On March 6, 2024, Petitioner’s first appeal (1192181-R1) was rejected by the
Southeast Regional Office. (Doc. 17-1 at 131.) The reason for rejection was a failure to
submit the “proper number of continuation pages.” (Id.) Because, by that time, Petitioner
had been transferred from FCI-Coleman Low (located in the Southeast Region) to FCI-
Phoenix (located in the Western Region), the rejection notice further advised Petitioner to
submit any further appeal to the Western Regional Office. (Id.)
On March 11, 2024, Petitioner requested that the Central Office process his request
for relief made in December 2023. (Doc. 17-1 at 129-30.) In so doing, Petitioner noted
that he had appealed to the Central Office after the Southeast Region’s response time had
expired. (Id.)
On March 15, 2024, Petitioner again appealed to the Southeast Regional Office.
(Doc. 17-1 at 111.) This appeal was assigned Remedy No. 1197415-R1 and was rejected
with the instruction to submit the appeal to the Western Regional Office. (Id. (showing
6 In relevant part, 28 C.F.R. § 542.18 provides that response times are 30 calendar
days at the regional level and 40 calendar days at the national (Central Office) level. Those
timeframes may be extended with notice provided to the inmate. Id. If an inmate does not
receive a timely response, the regulation states that the inmate “may consider the absence
of a response to be a denial at that level.” Id.
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“SER” (i.e., Southeast Region) with code “REJ” and remarks to submit appeal to Western
Region).)
On April 10, 2024, Petitioner submitted an appeal to the Western Regional Office.
(Doc. 17-1 at 122-123.) This appeal was assigned Remedy No. 1187031-R1. (Id. at 122.)
Again, his arguments mirrored those in his original appeal to the Southeast Region. (See
id. at 122-23, 136-42.) Petitioner further appealed to the Central Office on April 17, 2024,
but that was rejected because the Region was to be provided the opportunity to respond
first. (Id. at 113 (showing Remedy No. 1187031-A2, code “REJ,” and remarks to resubmit
to the Region).)
On August 20, 2024, the Western Regional Director substantively addressed
Petitioner’s appeal (1187031-R1). (Doc. 17-1 at 121 (response), and 115 (showing
Remedy Number for the Western Region “WXR” with the denial noted as “DNY”).) The
Region found Petitioner had been provided due process at the DHO proceeding and found
the DHO Report “clearly indicates the basis for the finding [Petitioner] committed the
prohibited act and explains the purpose of imposing the sanctions which are within policy.”
(Id.) The Region noted that Petitioner’s “admission statement of guilt” was “reflected in
the record.” (Id.) Moreover, the Region described the evidence considered by the hearing
officer and concluded, “It is apparent the DHO found you guilty based on the greater weight
of the evidence.” (Id.) The Region’s response summarized the evidence, which included
the SIS investigation’s evidence contained in the discipline packet. (See id.) Thus, the
Regional Director denied relief. (Id.)
Attached to Respondent’s Answer are screenshots of BOP’s internal administrative
remedies tracker. (Doc. 17-1 at 104-19.) Using the Remedy Numbers to track the progress
of Petitioner’s appeals of his various remedies in the screenshots, it is evident that
Petitioner did not appeal the Western Regional Office’s substantive response to BOP’s
Central Office. (See id.) Instead, it appears that Petitioner appealed after the time for a
response by the Southeast Region had lapsed (assigned Remedy No. 1187031-A1), and
that appeal was denied on the basis he had not gone to the Region first. (Id. at 132.)
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Petitioner also appealed to the Central Office on September 23, 2024. (Id. at 117.) This
appeal was assigned Remedy No. 1203245-A1, and it was denied on September 24, 2024.
(Id. (showing code “DNY” with no remarks).)
III. DISCUSSION
A. Jurisdiction
“Federal courts are always ‘under an independent obligation to examine their own
jurisdiction,’ and a federal court may not entertain an action over which it has no
jurisdiction.” Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (quoting
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)). Writ of habeas corpus relief
extends a person in federal custody if the federal prisoner can demonstrate he “is in custody
in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2241(c)(3). A federal prisoner may seek a writ of habeas corpus to challenge the manner
of the execution of his sentence pursuant to 28 U.S.C. § 2241. Hernandez, 204 F.3d at 864;
Tucker v. Carlson, 925 F.3d 330, 331 (9th Cir. 1990) (challenges to the execution of a
sentence are “maintainable only in a petition for habeas corpus filed pursuant to 28 U.S.C.
§ 2241”); see also United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984) (holding
that a petitioner may challenge the execution of a sentence by bringing a petition under 28
U.S.C. § 2241). Thus, this Court has jurisdiction over the instant § 2241 Petition.
B. Exhaustion
“As a prudential matter, courts require that habeas petitioners exhaust all available
judicial and administrative remedies before seeking relief under § 2241.” Ward v. Chavez,
678 F.3d 1042, 1045 (9th Cir. 2012) (citation omitted); Fraley v. U.S. Bureau of Prisons,
1 F.3d 924, 925 (9th Cir. 1993). A federal prisoner exhausts his administrative remedies
for appeals of DHO decisions by pursuing his claim first with the Regional Director
(known as a BP-10); and second, if unsuccessful at the Regional level, by appealing to the
Bureau of Prisons’ General Counsel in Washington, D.C. (known as a BP-11). See 28
C.F.R. §§ 542.14(d)(2) and 542.15.
“When a petitioner does not exhaust administrative remedies, a district court
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ordinarily should either dismiss the petition without prejudice or stay the proceedings until
the petitioner has exhausted remedies, unless exhaustion is excused.” Leonardo v.
Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011) (internal citations omitted). However,
exhaustion may be excused “in § 2241 cases because it is not a jurisdictional prerequisite.”
Ward, 678 F.3d at 1045 (internal quotation marks and citation omitted). Courts may waive
exhaustion “where administrative remedies are inadequate or not efficacious, pursuit of
administrative remedies would be a futile gesture, irreparable injury will result, or the
administrative proceedings would be void.” Laing v. Ashcroft, 370 F.3d 994, 1000 (9th
Cir. 2004) (citation omitted). When exercising its discretion in the exhaustion context, a
“key consideration” for courts is whether “relaxation of the requirement would encourage
the deliberate bypass of the administrative scheme[.]” Id. (quoting Montes v. Thornburgh,
919 F.2d 531, 537 (9th Cir. 1990)).
Here, Petitioner contends he has exhausted his administrative remedies, while
Respondent argues the opposite. (Doc. 1 at 2-5, 8, and 26; Doc. 17 at 8-10.) Although
Respondent concedes there were “delays in the processing of Petitioner’s appeals,”
Respondent maintains that because Petitioner did not appeal the Western Region’s
substantive denial, Petitioner failed to exhaust his administrative remedies. (Doc. 17 at
10.)
As detailed above, Petitioner first appealed to the Southeast Regional Office at the
time his DHO Report was given to him. (Doc. 17-1 at 136-142.) That procedure was
appropriate, as 28 C.F.R § 542.14(d)(1) requires that appeals of DHO decisions “shall be
submitted initially to the Regional Director for the region where the inmate is currently
located.” Petitioner was at FCI-Coleman Low when he submitted that appeal to the
Southeast Region. Months passed. When he did not receive a response within the
regulatory timeframe, Petitioner assumed (as he was permitted to under 28 C.F.R. §
542.18) that the appeal had been denied. He therefore appealed to the Central Office. (Id.
at 134.) The Central Office rejected that appeal for failure to appeal first to the Regional
Office (id. at 132) when in fact, Petitioner had already done so. The Southeast Region did
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not respond to Petitioner’s appeal until after Petitioner had been transferred to FCI-
Phoenix, and his appeal was rejected. (Id. at 131.) Petitioner was instructed to file at his
new Regional Office. (Id. at 131.) He then followed up with multiple appeals, including
to the Western Regional Office, and that appeal was denied for substantive reasons. (See
id. at 111, 113, 115, 121-23.) He also appealed to the Central Office after the Western
Region’s denial, but the record does not indicate the reason for the denial. (See id. at 117.)
After considering the record, undersigned would recommend that Petitioner
arguably exhausted, or meaningfully attempted to exhaust, his administrative remedies.
His appeal was not responded to in a timely fashion at the first Regional Office, so he
appealed to Central Office. That appeal was rejected for errant reasons. On that basis
alone, exhaustion could arguably be found. It is clear from the record that Petitioner’s
transfer to a different Region caused delays and difficulty in the appeals process, despite
Petitioner’s repeated and diligent efforts to pursue his appeal. Importantly, the record does
not show that “relaxation” of the requirement to exhaust “would encourage the deliberate
bypass of the administrative scheme,” given Petitioner’s diligent attempts to follow and
employ the regulations. See Laing, 370 F.3d at 1000 (quotation omitted). In addition, no
other reasons to require exhaustion are present here.7 Thus, although it appears Petitioner
did not appeal the Western Region’s eventual, substantive response to his later appeal,
undersigned would recommend that any failure to exhaust be excused. Finally,
undersigned notes that dismissal for failure to exhaust would be without prejudice, and the
Petition may be denied with prejudice for the reasons described below.
C. Merits (Due Process in Prison Disciplinary Proceeding)
1. Regulatory scheme for prohibited acts
Prohibited acts by federal prisoners are classified in four separate categories of
severity: Greatest, High; Moderate; and Low. 28 C.F.R. § 541.3. “Aiding, attempting,
7 “The courts under that doctrine may still require exhaustion if: (1) agency expertise
makes agency consideration necessary to generate a proper record and reach a proper
decision” or “administrative review is likely to allow the agency to correct its own mistakes
and to preclude the need for judicial review.” United States v. Cal. Care. Corp., 709 F.2d
1241, 1248 (9th Cir. 1983) (citations omitted).
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abetting, or making plans to commit any of the prohibited acts is treated the same as
committing the act itself.” Id. As relevant to the instant Petition, possession of a hazardous
tool (including a “portable telephone … or other electronic device”) is a Greatest severity
level prohibited act. Id. at Table 1, Code 108. Also relevant is Prohibited Act Code 199,
which the regulation defines as “[c]onduct which disrupts or interferes with the security or
orderly running of the institution or the Bureau of Prisons most like another Greatest
severity prohibited act. This charge is to be used only when another charge of Greatest
severity is not accurate. The offending conduct must be charged as “most like” one of the
listed Greatest severity prohibited acts.” Id. at Table 1, Code 199.
Prisoners who have been sentenced under the Prison Litigation Reform Act and are
found to have committed a prohibited act shall lose good credit time. 28 C.F.R. § 541.4.
The Supreme Court has held that “due process requires procedural protections before a
prison inmate can be deprived of a protected liberty interest in good time credits.”
Superintendent v. Hill, 472 U.S. 445, 454 (1985) (citing Wolff v. McDaniel, 418 U.S. 539
(1974)).
2. Due process requirements for disciplinary proceedings
Although “prisoners retain rights under the Due Process Clause” when they face
prison disciplinary proceedings, they are not entitled to “the full panoply of rights due a
defendant” in a criminal prosecution. Wolff, 418 U.S. at 556. Rather, due process in the
prison disciplinary context requires that an inmate “receive (1) advance written notice of
the disciplinary charges; (2) an opportunity, when consistent with institutional safety and
correctional goals, to call witnesses and present documentary evidence in his defense; and
(3) a written statement by the factfinder of the evidence relied on and the reasons for the
disciplinary action.” Hill, 472 U.S. at 454 (citing Wolff, 418 U.S. at 563-67).
To comport with due process, the findings of the disciplinary board must be
“supported by some evidence in the record.” Hill, 472 U.S. at 454. “Ascertaining whether
this standard is satisfied does not require examination of the entire record, independent
assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant
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question is whether there is any evidence in the record that could support the conclusion
reached by the disciplinary board.” Id. at 455-56. “[T]here must be some indicia of
reliability of the information that forms the basis for prison disciplinary actions.” Cato v.
Rushen, 824 F.2d 703, 705 (9th Cir. 1987) (citations omitted).
3. Analysis
Here, Petitioner argues he was denied due process in various ways. He argues that
prison staff (1) failed to give him his IR within 24 hours, in violation of 28 C.F.R. §
541.5(a) and (2) did not advise him as required by 28 C.F.R. § 541.5(b) and BOP program
statement. (Doc. 1 at 11-14.) He further contends that the UDC did not have enough
members, did not allow him to present documentary evidence, and did not give him a
written copy of the UDC report, all in violation of 28 C.F.R. § 541.7 and BOP program
statements. (Doc. 1 at 14-16.) Next, Petitioner argues his DHO hearing was flawed under
28 C.F.R. § 541.8 because (1) the DHO did not make a sufficient finding per 28 C.F.R. §
541.8(a), (2) Petitioner did not waive his right to a staff representative, (3) despite
Petitioner’s witness (inmate Warnick) testifying that Petitioner did not have access to the
cell phone, the DHO did not correctly weigh the evidence and “completely disregarded
credible and undisputed witness testimony!” (Id. at 17-22) (punctuation in original).
Finally, Petitioner generally claims that the BOP reports generated (i.e., the IR and DHO
Reports) contained inaccuracies, in violation of 28 C.F.R. § 541.5(a) and BOP program
statements. (See id. at 22-25.) Thus, Petitioner’s arguments hinge on BOP’s alleged failure
to comply with its own program statements and federal regulations.
At the outset, undersigned notes that any argument based on failure to comply with
BOP program statements fails as a matter of law. “A habeas claim cannot be sustained
based solely upon the BOP’s purported violation of its own program statement because
noncompliance with a BOP program statement is not a violation of federal law.” Reeb v.
Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011). In addition, a prisoner’s right to due process
in the disciplinary process is “violated only if he as not provided with process sufficient to
meet the Wolff standard,” regardless of “whether the prison complied with its own
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regulations.” Walker v. Sumner, 14 F.3d 1415, 1419-20 (9th Cir. 1994) (collecting cases),
overruled on other ground by Sandin v. Conner, 515 U.S. 472, 483-84 (1995). Therefore,
Petitioner “is not entitled to federal due process protection for any … violations of prison
regulations that exceed what Wolff requires.” Id. Accordingly, Petitioner’s complaints that
BOP did not follow certain regulatory provisions that exceed Wolff’s requirements fail as
a matter of law.
Therefore, rather than focus on whether BOP complied with a certain regulation, as
Petitioner would have this Court do, the Court’s inquiry must be on whether Wolff was
satisfied. Here, the record establishes that Petitioner received the minimal due process
protections afforded to him by Wolff.
a. Advance written notice of the disciplinary charge
First, Wolff requires that a prisoner received “advance written notice of the claimed
violation.” 418 U.S. at 563. “Part of the function of notice is to give the charged party a
chance to marshal the facts in his defense and to clarify what the charges are.” Id. at 564.
Here, Petitioner received advance written notice of the charge against him. (Doc. 17-1 at
17 (showing advance written notice of the charge (copy of IR with Prohibited Code Act
108) given to Petitioner on September 26, 2023 and DHO hearing held on October 6,
2023).) Petitioner had the opportunity to marshal facts, and he presented a witness at the
DHO hearing. At the hearing, the DHO found Petitioner had committed Prohibited Code
Act 199, most like 108. (Id. at 20.) Petitioner had sufficient advanced written notice of
the charge.
b. Opportunity to call witnesses and present documentary evidence
Second, an “inmate facing disciplinary proceedings should be allowed to call
witnesses and present documentary evidence in his defense when permitting him to do so
will not be unduly hazardous to institutional safety or correctional goals.” Wolff, 418 U.S.
at 566. However, this is not unfettered; the safe operation of the institution is paramount
and “[t]here is this much play in the joints of the Due Process Clause.” See id. at 566-67.
As to witnesses, Petitioner was given the opportunity to call witnesses. This is
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evidenced by the fact that he called a witness. Although Petitioner concedes that he was
able to call his witness, (Doc. 1 at 20), Petitioner complains that the DHO did not properly
weigh and assess the credibility of Petitioner’s witness and the evidence as a whole. (See
id. at 20-22.) But precedent makes clear that this Court is not required to independently
assess the credibility of witnesses or weigh the evidence. Hill, 472 U.S. at 455. “Instead,
the relevant question is whether there is any evidence in the record that could support” the
DHO’s conclusion. See id. at 455-56.
After considering the record, undersigned concludes there is some evidence that
supports the DHO’s conclusion, and there is an indicia of reliability. Specifically, the DHO
considered SIS staff’s investigation, which indicated Petitioner had made a statement to
staff that he had accessed the phone. (Doc. 17-1 at 20.) The DHO further found that, even
though the phone was not found in Petitioner’s possession, “it is evident by the
investigation and the emails include in the investigation that [Petitioner] used a cellular
phone to orchestrate [Petitioner’s] scheme.” (Id.) The DHO also noted that aiding and
abetting other inmates by writing out emails that would be sent on the phone would
similarly be prohibited conduct. (See id. at 19-20.) The DHO specifically indicated how
she weighed the credibility of Petitioner, his witness, and the other evidence in front of her.
(See id. at 20.) Accordingly, there was some evidence to support the conclusion of the
DHO that Petitioner had committed a prohibited act.
In addition to witnesses, the Supreme Court has held that, to the extent it is
consistent with institutional safety and correctional goals, prisoners may present
documentary evidence at disciplinary hearings. Wolff, 418 U.S. at 566. In the case at bar,
the DHO Report indicates Petitioner had no documentary evidence to present; thus, the
record does not support that Petitioner requested to present any such evidence. (Doc. 17-
1 at 18.) Petitioner does not argue he was denied the ability to present any documentary
evidence at his DHO hearing. (See Doc. 1.) Rather, Petitioner contends he was not allowed
to present documentary evidence at the UDC stage. (Id. at 15-16.) Specifically, Petitioner
alleges that “the UDC refused to accept or review a written statement authored by inmate
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[Warnick],” which would have exculpated Petitioner. (See id.) Petitioner further alleges,
“Had the UDC reviewed and accepted this documentary evidence, the Petitioner would
have undoubtedly been cleared of any wrong-doing.” (Id. at 16.) Petitioner’s assertions,
however, fall far short of any violation of due process under Wolff. Importantly, the alleged
denial of documentary evidence did not occur at the DHO stage, where the charge was
heard and a hearing was held. Instead, the UDC made no findings as to whether Petitioner
had committed the prohibited act and referred the matter to the DHO for a full hearing. (Id.
at 24) (UDC findings section blank and referral to DHO indicated). Indeed, 28 C.F.R. §
541.7(a)(4) provides that a Greatest severity prohibited act will be automatically referred
to the DHO. Thus, assuming Petitioner made a request to have documentary evidence
considered at the UDC stage, that did not result in any action adverse to Petitioner.
Petitioner’s conclusory assertion that had he been able to present a written statement from
another inmate, he would have been “cleared” of wrongdoing, lacks any support. Petitioner
was afforded a DHO hearing, where he had the opportunity to present the live testimony
of inmate Warnick, rather than only a written statement. Due process was not denied to
Petitioner, even assuming he was denied the opportunity to present a written statement to
a committee that took no action against him (and was not empowered by regulation to take
action against him).
c. Written statement by the factfinder
The final requirement of Wolff is that Petitioner must have been provided with “a
written statement by the factfinder of the evidence relied on and the reasons for the
disciplinary action.” Hill, 472 U.S. at 454. This point is not subject to any serious dispute
in this case. Petition makes no such argument (see Doc. 1), and the record amply
demonstrates that Petitioner received a copy because he attached a copy of same to his
appeals. (See, e.g., Doc. 17-1 at 136-42.) Therefore, this final requirement of Wolff has
been met.
4. Conclusion as to Merits
In summary, the record establishes that the DHO process in this case satisfied the
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requirements under Wolff, and the DHO’s finding that Petitioner committed a prohibited
act was supported by some evidence. Further, the sanctions imposed were permitted under
the regulatory scheme. See 28 C.F.R. § 541.3, Table 1 at Sanction B (loss of good credit
time) and Sanction F (loss of privileges, including visiting and telephone), and 28 C.F.R.
§ 541.4(b)(1) (stating inmate will lose at least 41 days of good credit time for each Greatest
severity level act committed). Consequently, undersigned will recommend that the Petition
be denied and dismissed with prejudice.8
RECOMMENDATION
For the foregoing reasons,
IT IS RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2241 (Doc. 1) be DENIED and DISMISSED WITH PREJUDICE.
EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of
Appellate Procedure, should not be filed until entry of the district court’s judgment. The
parties shall have 14 days from the date of service of a copy of this recommendation within
which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a
response to the objections.
Failure to timely file objections to the Magistrate Judge’s Report and
Recommendation may result in the acceptance of the Report and Recommendation by the
district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the
Magistrate Judge will be considered a waiver of a party’s right to appellate review of the
8 Although it does not appear that Petitioner has requested an evidentiary hearing (see
Doc. 1), to the extent any such request has been made, undersigned recommends the request
be denied. The record is sufficiently developed, and no evidentiary hearing is required
when “the record conclusively shows that petitioner is not entitled to habeas corpus under
28 U.S.C. § 2241.” Anderson v. United States, 898 F.2d 751, 753 (9th Cir. 1990) (citation
omitted).
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findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s
recommendation. See Fed. R. Civ. P. 72.
ORDER
IT IS ORDERED directing the Clerk of Court to mail a copy of this Report and
Recommendation to Petitioner at: David Jackson-Mackay, Reg. No. 70739-509, FCI-
Phoenix, Federal Correctional Institution, 37910 N. 45th Avenue, Phoenix, AZ 85086.
IT IS FURTHER ORDERED affirming this Court’s prior Orders, including the
Order directing Petitioner to file a notice of change of address in accordance with LRCiv
83.3(d) upon any change of address. As of this date, Petitioner’s address on file with the
Court remains in Wyoming.
Dated this 18th day of February, 2026.
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