                                                                               FILED
                            NOT FOR PUBLICATION                                AUG 13 2012

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


GEORGE WILLIAMS, Jr.,                            No. 11-35031

              Petitioner - Appellant,            D.C. No. 3:08-cv-01476-MA

  v.
                                                 MEMORANDUM*
J. E. THOMAS, Warden, FCI-Sheridan,

              Respondent - Appellee.


                  Appeal from the United States District Court
                           for the District of Oregon
                Malcolm F. Marsh, Senior District Judge, Presiding

                        Argued and Submitted July 12, 2012
                                Portland, Oregon

Before: GOODWIN, PREGERSON, and CHRISTEN, Circuit Judges.

       Federal prisoner George Williams, Jr. appeals the district court’s denial of

his 28 U.S.C. § 2241 petition for habeas corpus. Williams challenges prison

disciplinary sanctions that resulted in a loss of good conduct time credits (“good

time”) totaling 134 days based on three incidents and seven related incident



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
reports. We have jurisdiction under 28 U.S.C. § 1291, and we “review a district

court’s denial of a writ of habeas corpus pursuant to 28 U.S.C. § 2241 de novo.”

Tablada v. Thomas, 533 F.3d 800, 805 (9th Cir. 2008). The district court’s

underlying findings of facts are reviewed for clear error. McNeely v. Blanas, 336

F.3d 822, 826 (9th Cir. 2003). We reverse in part and affirm in part.

Incident Reports 1633188, 1633234, 1633242

      Williams contends that his due process rights were violated during

disciplinary hearings that concerned alleged assaults at the Federal Detention

Center SeaTac (“SeaTac”) in Washington State. Williams had attempted suicide

while housed at SeaTac and prison guards alleged he was assaultive when they

responded. By the time the resulting disciplinary hearings were held, Williams had

been transferred to a different facility. Williams informed the Disciplinary Hearing

Officer (“DHO”) that he reached an agreement with the officials at SeaTac

whereby he would come off suicide watch in exchange for the prison authorities

returning his property and expunging the disciplinary charges. A

contemporaneously created notation in Williams’s prison records from SeaTac

states: “Inmate is to be taken off D/S status, given all his property, and all pending

sanctions expunged.”




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      Prisoners have a limited procedural due process right to call witnesses at

disciplinary hearings so long as it “‘will not be unduly hazardous to institutional

safety or correctional goals.’” Ponte v. Real, 471 U.S. 491, 499 (1985) (quoting

Wolff v. McDonnell, 418 U.S. 539, 566 (1974)). “[P]rison officials may be

required to explain, in a limited manner, the reason why witnesses were not

allowed to testify.” Id. at 497. Williams asked to have the warden from SeaTac

testify about what he alleges was an agreement to dismiss the disciplinary charges

against him. The DHO did not allow Williams to call the warden, deeming the

proposed testimony irrelevant because the prospective witness would not have

stated that Williams did not commit the prohibited acts. In other words, the DHO

was under the impression that he was required to determine whether the disputed

conduct occurred regardless of whether the officials at SeaTac had or had not

agreed to dismiss the disciplinary charges.

      The DHO’s duties included determining whether the alleged disciplinary

infraction occurred and, if it did, fashioning an appropriate sanction. 28 C.F.R.

§ 541.18 (2008). The proffered testimony from the warden at SeaTac may have

been irrelevant to determining whether an infraction occurred, but it was relevant

to imposing a sanction. Indeed, if on remand Williams’s version of events proves

to be accurate, it may demonstrate that no sanction was warranted.


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       The Bureau of Prisons has a policy of encouraging informal resolution of

disputes. Id. § 541.14. On this record, we have no way of knowing whether the

warden’s testimony would have supported Williams’s version of events or whether

there is a different explanation for the notation in the SeaTac prison records. We

decide only that the DHO erred by ruling the testimony irrelevant. Accordingly,

we reverse and remand the district court’s denial of this portion of the petition for

habeas corpus.

Incident Reports 1706615, 1706620

      Williams also challenges two sanctions arising from an incident where he

refused orders to submit to hand restraints. Williams alleges that his due process

rights were violated because he received two sanctions for the same offense. We

disagree. Substantive due process requires that there be “some evidence in the

record” supporting the decision by the prison disciplinary board to revoke good

time. Superintendent v. Hill, 472 U.S. 445, 454 (1985). The DHO’s decisions are

supported by “some evidence” that Williams refused two separate orders given by

two different prison guards. We affirm the denial of this portion of the petition for

habeas corpus.




                                          4
Incident Reports 1720378, 1720411

      Finally, Williams argues that his due process rights were violated because

the DHO failed to consider video evidence of a second suicide attempt that also

allegedly involved Williams assaulting prison guards who responded. According

to Williams, the video refutes the guards’ testimony that he was combative.

Williams cites to Viens v. Daniels to support his argument that the DHO

impermissibly overlooked the video evidence. 871 F.2d 1328, 1336 n.2 (7th Cir.

1989) (holding that a “prison disciplinary body may not arbitrarily refuse to

consider exculpatory evidence offered by a prisoner simply because the record

already contains the minimal evidence suggesting guilt required by Hill”). Viens is

inapposite because the record shows the DHO did review the video — as did the

district court and this court. We agree with the district court’s finding that the

video is not conclusive evidence that Williams did not assault the responding

guards; at some points, the video does not provide a clear view of Williams. The

officers’ reports and their medical records provide some evidence that Williams

exhibited assaultive behavior in the aftermath of the second suicide attempt. We

therefore affirm this part of the district court’s denial of the petition for habeas

corpus.




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     Each party shall bear its own costs on appeal. REVERSED in part and

AFFIRMED in part.




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