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Topete v. Feather

United States District Court, D. Oregon

December 15, 2014

JOSE ELIODORO TOPETE, Petitioner,
v.
MARION FEATHER, Warden, Respondent.

Jose Elidoro Topete, Federal Correctional Institution, Sheridan, Oregon, Petitioner, Pro se.

S. Amanda Marshall, United States Attorney, District of Oregon, Natalie K. Wight, Assistant U.S. Attorney, Portland, Oregon, Attorneys for Respondent.

OPINION AND ORDER

MALCOLM F. MARSH, District Judge.

On or about April 13, 2014, petitioner filed this habeas corpus proceeding pursuant to 28 U.S.C. §2241. Petitioner contends that he was denied due process at a disciplinary hearing held on November 13, 2013, at Taft Correctional Institution (CI Taft) (a contracted correctional institution operated by a private corporation). For the reasons set forth below, the petition is dismissed as moot.

BACKGROUND

While incarcerated at CI Taft, petitioner was charged with attempting to introduce two cell phones (hidden in the insoles of a pair of tennis shoes) into the institution. The shoes were mailed in a package addressed to Inmate Emiliano Jose-Ramirez (under the guise that they were his release clothes), and bearing petitioner's son's return address. Petitioner was charged with attempted possession, manufacture, or introduction of a hazardous tool. CI Taft Special Investigative Supervisor Lieutenant K. Sy issued the incident report and conducted an investigation. Declaration of Daniel Cortez, Exh. 2 at 3.

At the November 13, 2013, disciplinary hearing, CI Taft Hearings Officer C. Logan found petitioner guilty of the alleged rule violation. Id. at ¶ 3 & Exh. 2 at 3. Petitioner was sanctioned with the loss of 41 days good time credits, 3 months disciplinary segregation, and 1 year loss of telephone privileges. Id. at ¶ 4 & Exh. 2 at 4.

On June 13, 2013, Bureau of Prison (BOP) Disciplinary Hearings Officer (DHO) Daniel Cortez, Jr. conducted a rehearing of the alleged rule violation. Id. at ¶¶ 1 & 4 & Exhe. 3. DHO Cortez found petitioner guilty of the rule violation and reimposed the same sanctions. Id. The evidence relied upon by DHO Cortez included:

The DHO considered the photo sheets July 8, 2013, which depict the package received addressed to inmate Emiliano Jose-Ramirez... [from] (the same address as... Topete's son). These photos also depict the tennis shoes contained in the package received as well as the cell phones and charging materials secreted in the inside of the tennis shoes.
The DHO considered the Authorization to Receive Package or Property dated June 12, 2013, for inmate Emilano Jose-Ramirez which contains the address of inmate Topete's son as the return address.
The DHO considered the inmate Telephone Call Monitoring Reports which covered a span of several months.... During these calls inmate Topete requested the address of his son.... Additionally inmate Topete makes statements such as instructing his son to buy some tennis shoes and "get them ready."
* * * * *
The DHO considered the statement inmate Topete provided during the DHO hearing: "Ramirez told the SIS that I was going to send him clothes, but I didn't tell him that. I said I was guilty because I didn't want the FBI going after my son. I am not that dumb to use the phones that are recorded to talk with my son to do something like this. I never worked with anyone to get any cell phones. I don't know why they used my sons address ...

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