Denard Neal v. United States Penitentiary Atw , 585 F. App'x 730 ( 2014 )

FILED
NOT FOR PUBLICATION NOV 26 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENARD NEAL, No. 12-15669
Petitioner - Appellant, D.C. No. 1:11-CV-01361-GSA
v.
MEMORANDUM*
UNITED STATES PENITENTIARY
ATWATER; ET AL.,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Gary S. Austin, Magistrate Judge, Presiding
Argued and Submitted November 17, 2014
San Francisco, California
Before: NOONAN and IKUTA, Circuit Judges, and DANIEL, Senior District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Wiley Y. Daniel, Senior District Judge for the U.S.
District Court for the District of Colorado, sitting by designation.
Denard Neal (Neal) appeals the district court’s order denying his petition for
writ of habeas corpus. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
We also deny Neal’s two pro se motions.
We review de novo a district court’s denial of a petition for writ of habeas
corpus under 28 U.S.C. § 2241. See Murphy v. Hood, 276 F.3d 475, 477 (9th Cir.
2001). We conclude that the district court’s denial of Neal’s petition was proper.
Affording deference to the Bureau of Prisons’ (BOP) interpretation of its
regulation, Auer v. Robbins, 519 U.S. 452, 461, 117 S. Ct. 905, 911, 137 L. Ed. 2d
79 (1997), we also conclude that masturbation is a sexual act under Prohibited Act
205 of the BOP’s Disciplinary Code. Thus, we conclude that Neal had fair notice
that his conduct was prohibited.
Lastly, we conclude that Neal’s due process right to an impartial
Disciplinary Hearing Officer (DHO) was not violated. Neal’s DHO was both
qualified and impartial. The DHO’s findings were proper and based on some
evidence in the form of the reporting correctional officer’s statement. See
Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455-56,
105 S. Ct. 2768, 2774, 86 L. Ed. 2d 356 (1985) (Due process is satisfied if some
evidence supports the prison disciplinary board’s decision to revoke good time
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credits. This standard is met if any evidence in the record could support the
disciplinary board’s conclusion.).
Accordingly, we AFFIRM.
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