Daniel Velasquez v. MICHAEL BENOV, Warden

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL VELASQUEZ,
Petitioner - Appellant,
v.
MICHAEL BENOV, Warden,
Respondent - Appellee.
No. 12-15897
D.C. No. 1:10-cv-01593-AWI
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted May 14, 2013**
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
Federal prisoner Daniel Velasquez appeals pro se from the district court’s
judgment dismissing his 28 U.S.C. § 2241 habeas petition. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo a district court’s dismissal of a 28
U.S.C. § 2241 habeas corpus petition, see Alaimalo v. United States, 645 F.3d
FILED
MAY 17 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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12-15897 2
1042, 1047 (9th Cir. 2011), and we affirm.
Velasquez contends that Prohibited Act Code 397, prohibiting use of the
telephone for abuses other than criminal activity, is impermissibly vague. The
district court properly rejected this claim because Code 397 provides fair notice of
what conduct is prohibited by including a non-exhaustive list of proscribed acts.
See 28 C.F.R. § 541.13 (Table 3) (2009); Newell v. Sauser, 79 F.3d 115, 117 (9th
Cir. 1996).
Velasquez also contends that the members of the Unit Disciplinary
Committee (“UDC”) were not properly certified to hold a disciplinary hearing as
required by the Bureau of Prisons’ (“BOP”) Policy Statement 5270.07. This
contention fails because “[a] habeas claim cannot be sustained based solely on 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). To the extent Velasquez challenges the
qualifications of the UDC members and the Disciplinary Hearing Officer on other
grounds, those grounds were not raised in his section 2241 petition and we decline
to address them for the first time on appeal. See Cacoperdo v. Demosthenes, 37
F.3d 504, 507 (9th Cir. 1994) (“Habeas claims that are not raised before the district
court in the petition are not cognizable on appeal.”).

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Velasquez also contends that the investigating officer violated 28 C.F.R.
§ 541.2(a) (2008), when he also filed the incident report. Any violation was
harmless as Velasquez admitted the conduct giving rise to the violation. Thus,
“some evidence” supported the conclusion. See Superintendent v. Hill, 472 U.S.
445, 455 (1985).
AFFIRMED.

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