United States District Court, D. Kansas
MEMORANDUM AND ORDER
RICHARD D. ROGERS, District Judge.
This petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2241 by an inmate of the United States Penitentiary, Leavenworth, Kansas (USPL). The court issued a show cause order to respondent who filed an Answer and Return (A&R). Petitioner filed a Traverse to which respondent responded, and petitioner filed a "Reply to Respondent's Response to Traverse". Having considered all the materials filed, the court finds that the claims raised in the petition are moot due to a voluntary rehearing, which clearly provided those specific elements of due process that petitioner claimed were denied in his first disciplinary hearing. Accordingly, this action is dismissed without prejudice.
The following facts are not in dispute. At the time this action was filed Mr. Mertins was serving a sixty-three month sentence at the USPL for Felon in Possession of a Firearm. On May 29, 2012, he was searched by Officer Genter as he attempted to enter A Cell House. Officer Genter found a bag that contained 40 cartons of milk,  which he immediately assumed had been stolen from Food Services. Officer Genter wrote Incident Report (IR) No. 2309204 charging Mr. Mertins with Possession of Stolen Property in violation of Code 226, and the IR was delivered to petitioner that morning. Two days later petitioner appeared before the UDC, where he stated that Officer Genter had told him to call Genter as a witness that the milk was taken from the trash and the charge should be possession of contraband. The UDC referred the matter to the DHO (Disciplinary Hearing Officer). Petitioner appeared before the DHO on September 11, 2012, having requested that the reporting officer be called as a witness and assuming Genter's statement would serve as his defense. However, Officer Genter was ill and unavailable. Petitioner declined a staff representative, made a brief statement, and presented no documentary evidence. The DHO believed "the reporting officer's testimony was adequately contained" in the IR and found Mr. Mertins guilty as charged. The sanctions imposed included loss of 27 days of good conduct time.
On the day Mr. Mertins was found guilty, he wrote to "DHO Secretary" Ms. Prier that his copy of the IR did not "contain the incident report number, " and he needed "this number to file an appeal." Petition, Attachments (Doc. 1-1) at 6. Prier responded: "The IR number will be included on your DHO report. You can't appeal until you receive a copy of the DHO report." Id.
On September 25, 2012, which was a couple weeks after petitioner's disciplinary hearing, Officer Genter wrote a Memorandum addressed to the BOP Regional Director stating he had discovered "sometime later" that "the milk was actually expired and had been discarded and Mertins had retrieved it from a trash can." Id. at 2. Genter further stated that he had intended to appear before the DHO at petitioner's hearing "to explain about the milk but was taken ill." Id. In addition, Genter stated he would have testified that he "no longer felt that the Offense amounted to Possessing Stolen Property but rather Code 305 Possession of Anything Not Authorized, " and that he likely "would have dealt with the matter in a far different manner such as Informal Resolution or the previously mentioned lesser charge." Id. Genter noted "Mertin's record of otherwise clear conduct" and recommended that the charge and sanctions "be reduced or expunged." Id.
On October 7, 2012, petitioner sent his administrative appeal to the Regional Office in which he complained that DHO Potts had violated his right to call a witness under Wolff v. McDonnell, 418 U.S. 439 (1974). He asked to have the guilty finding annulled and the IR returned to Genter "for further processing." Id. at 3. Petitioner received a Notice dated October 11, 2012, that his Regional Appeal was rejected and returned to him for the following reasons: "You must wait for the DHO's decision of the DHO Hearing before you may appeal to the Regional Office." Id. at 4. Mertins was directed to resubmit his appeal "within 20 days of the date you receive the DHO's decision." Id. On October 26, 2012, Mertins went ahead and sent an appeal to the Central Office.
On December 18, 2012, petitioner sent a "Request to Staff" to DHO B. Potts stating that he "could not find any evidence substantiating a requirement" that he wait until after his receipt of the DHO's written report to begin the administrative appeal process. He also again requested the IR number. Id. at 7. As of the date he mailed his petition to this court, Mr. Mertins had not received a reply to this request. Id.
Petitioner was informed on November 29, 2012, that his Central Office appeal was rejected on procedural grounds but did not receive written notice. Respondent provides an administrative remedy retrieval record showing the rejection status of this Central Office appeal dated December 11, 2012. A&R, Attachments (Doc. 5-1) at 30. The instant petition was received by the court on January 2, 2013.
DHO Potts was apprised of the instant court action shortly after it was filed and reviewed documents filed in this case including Genter's Memorandum. As a result, Potts "determined to hold a re-hearing of Petitioner's Incident Report No. 2309204." Id. (Doc. 5-2 at 6)(Potts Affid.). Mr. Mertins was provided notice, and the rehearing was conducted on January 22, 2013. Id. at 57. Petitioner declined a staff representative, declined to make a statement, and presented no documentary evidence. He called Officer Genter as a witness, who testified that a couple days after the incident he learned the Food Services Department had thrown out the expired milk. Id. at 8. Genter further stated that he could have handled the IR differently and would have written it for a Code 305, Possession of Anything Unauthorized. Id. DHO Potts conducted the rehearing and provided a detailed written statement of the evidence considered and the reasons for her decision. Id. at 62-63. Potts stated that she had considered all the evidence presented at the rehearing along with petitioner's statements during the investigation and at the prior hearings and the written and oral statements of Officer Genter. Id. at 62. She found it undisputed that Mr. Mertins was in possession of the milk and that he was guilty of the offense of possession of stolen property as charged because there was no evidence indicating that anyone else had taken the milk or that staff had authorized petitioner to take it. Id. The DHO imposed the same sanctions upon Mr. Mertins as at his first hearing including the loss of 27 days good conduct time, and found they had all been served after the original hearing. Id. at 63. The DHO Report from the rehearing was provided to petitioner on February 1, 2013. Id.
As a threshold matter, respondent contends in his A&R that the issues presented in the petition are now moot and that this court lacks jurisdiction as a result. In support, respondent alleges that the circumstances existing when this action was filed "have completely changed" in that petitioner was afforded a rehearing, the sanctions imposed were re-evaluated, and the original disciplinary proceedings no longer exist. More specifically, respondent argues that the due process elements alleged to have been denied petitioner in his first hearing, namely his request for witness Genter and the DHO report, were afforded in his rehearing. Thus, respondent argues that there is no further relief for this court to grant.
In response to the mootness issue, petitioner argues that he seeks return of his good time and that the constitutionally deficient rehearing did not cure the constitutionally deficient original hearing because he was denied due process at both. He asks the court to ...