Glenn McCloud v. Steve Lake ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLENN MCCLOUD, No. 19-15504
Petitioner-Appellant, D.C. No. 1:18-cv-01072-JLT
v.
MEMORANDUM*
STEVE LAKE, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Jennifer L. Thurston, Magistrate Judge, Presiding**
Submitted December 11, 2019***
Before: WALLACE, CANBY, and TASHIMA, Circuit Judges.
Federal prisoner Glenn McCloud appeals pro se from the district court’s
judgment denying his 28 U.S.C. § 2241 petition for a writ of habeas corpus. We
have jurisdiction under 28 U.S.C. § 1291. We review the denial of a section 2241
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceeding before a magistrate judge
pursuant to 28 U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
petition de novo, see Tablada v. Thomas, 533 F.3d 800, 805 (9th Cir. 2008), and
we affirm.
McCloud challenges a prison disciplinary proceeding in which he was
sanctioned with the disallowance of good conduct time for committing the
prohibited act of disruptive behavior most like possession of a hazardous tool. He
argues that he did not receive advance written notice of the charges, that he was
denied the right to call his requested witness, and that the disciplinary hearing
officers were not impartial. We conclude that there was no due process violation.
The incident report McCloud received described the factual situation that was the
basis for the charge and thus “adequately performed the functions of notice”
articulated in Wolff v. McDonnell, 418 U.S. 539, 564 (1974). See Bostic v.
Carlson, 884 F.2d 1267, 1270-71 (9th Cir. 1989), overruled on other grounds by
Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016) (en banc). The record does not
reflect that McCloud was denied an impartial decision maker. See Liteky v. United
States, 510 U.S. 540, 555 (1994). Moreover, on this record, any error that resulted
from McCloud’s inability to call his requested witness was harmless, see Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993), and the record shows that “some
evidence” supported the hearing officer’s findings. See Superintendent v. Hill, 472
U.S. 445, 455 (1985). Finally, we reject McCloud’s various challenges to the
“some evidence” standard set forth in Hill because the Supreme Court “retains the
2 19-15504
prerogative of overruling its own decisions.” See Newman v. Wengler, 790 F.3d
876, 880 (9th Cir. 2015) (internal quotation marks omitted).
AFFIRMED.
3 19-15504