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Acrey v. English

United States District Court, D. Kansas

November 6, 2015

KIRK ACREY, Petitioner,
NICOLE ENGLISH, Warden, USP-Leavenworth, Respondent.



         This matter is a petition for writ of habeas corpus filed under 28 U.S.C. § 2241. Petitioner, a prisoner in federal custody at USP-Florence, proceeds pro se. Petitioner challenges prison disciplinary proceedings while in custody at USP-Leavenworth (“USPL”). The Court issued an Order to Show Cause, Respondent filed an Answer and Return (Doc. 9), Petitioner filed a Traverse (Docs. 10, 13), and the matter is ready for resolution. The Court finds that Petitioner does not allege facts establishing a federal constitutional violation and denies relief.

         I. Background

         Petitioner was incarcerated with the Federal Bureau of Prisons (“BOP”) at USPL at the time of filing his Petition. On January 11, 2008, Petitioner was sentenced in the U.S. District Court for the Northern District of Illinois, and is serving a sentence for Distribution of Crack Cocaine in violation of 21 U.S.C. § 841(a)(1). Petitioner has a projected release date of June 30, 2018, via good conduct time release. Disciplinary proceedings at USPL for use of the mail for an illegal purpose, attempted stealing and unauthorized reproduction of any document, resulted in Petitioner's loss of forty-one days of good time credit and loss of a one-year credit for participating in the Residential Drug Abuse Program (“RDAP”). Petitioner alleges the following grounds in his petition: (1) the Incident Report was delivered to him 26 hours after the incident instead of within the 24-hour time frame outlined in BOP policy; (2) his case manager talked to the Disciplinary Hearing Officer (“DHO”) about the incident even though he was not IDC-certified; and (3) the administration altered the delivery date for the Incident Report in an attempt cover up their wrongdoing. Petitioner asks the Court to restore his forty-one days of good conduct time and to remove the discipline from his record so he can receive his one-year reduction in his sentence under 18 U.S.C. § 3621(e) for participation in the RDAP.

         II. Facts

         On October 5, 2015, inventoried property of another inmate who was scheduled to be released that day (the “releasing inmate”), included two sealed envelopes with Petitioner's register number and return address. (Doc. 16-1, at 43.) The envelopes were discovered the previous night, when the releasing inmate was locked up in the Special Housing Unit (“SHU”). Although Petitioner requested to have the letters returned to him several times throughout that evening, the officer working the housing unit sent the letters to the Special Investigative Section (“SIS”). Id. While the incoming SIS Technician approached the SIS Office, he was stopped by Petitioner, who stated that he wanted his letters back. Id.

         The envelopes contained letters to the IRS and Child Support Services, a self-made money order, a 1040 Individual Income Tax Return showing Petitioner is owed $35, 464.65 from a 1099 OID form, a 1040-V payment voucher for the same amount to be used to pay child support, and a letter to Felonda instructing her on how to fill out the 1099 OID and 1096 forms, along with sample copies of the forms. See id. at 49-59, 74.

         The SIS Technician who opened the envelopes wrote Petitioner's Incident Report No. 2769171 (“IR”) on October 6, 2016, for violating Code 196, use of the mail for an illegal purpose; Code 219 (A), stealing (attempted); and Code 314, unauthorized reproduction of any document. Id. The reporting staff member signed the IR at 7:00 a.m. on October 6, 2016. The IR, which contained a delivery date and time of October 7, 2015, at 9:35 a.m., was delivered to Petitioner and Petitioner was advised of his rights. See Doc. 13, at 16. Later, the delivery date on the IR was changed to October 6, 2015. See Id. at 17.

         The IR was suspended pending a referral to the Federal Bureau of Investigation for potential prosecution. (Doc. 16-1, at 61-63.) Prosecution was declined, and the IR was released for administrative processing on October 13, 2015. Id. The IR was reissued to Petitioner, and investigated by staff on October 13, 2015. Petitioner was again advised of his rights during the investigation, and stated “I have no statement to make.” Id. The IR was forwarded to the Unit Discipline Committee (“UDC”) for further disposition. Id.

         Petitioner had an opportunity to appear before the UDC on October 13, 2015, and stated “[t]hey violated the 24 hour [r]ule.” Id. at 43. The UDC referred the matter to the DHO for further disposition, due to the severity of the charge. Id.

         Petitioner was given a Notice of Disciplinary Hearing before the DHO and a copy of the Inmate Rights at Discipline Hearing on October 13, 2015. Id. at 65, 67-68. Included among those rights was the opportunity to have a staff representative assist with the Discipline Hearing, the right to call witnesses and to present documentary evidence on Petitioner's behalf, and the right to present a statement to the DHO or remain silent. Id. Petitioner signed the Notice of Discipline Hearing, and, while he refused to sign the Inmate Rights at Discipline Hearing Form, staff signed indicating he received the form. Id. Petitioner noted that he did not wish to call any witnesses, but that he wished to have a staff representative to assist him during the disciplinary process. Petitioner requested the assistance of “Officer Edwards.” Id.

         A hearing on IR No. 2769171 was held before the DHO on October 28, 2015-over twenty days after Petitioner first received the IR from staff, and fifteen days after the IR was reissued to him. Id. at 70-76. The DHO reviewed Petitioner's due process rights with him at the hearing. Id. at 72. Petitioner requested a staff representative, did not request any witnesses, and provided documentary evidence. The DHO ensured that Petitioner understood his due process rights and was prepared to proceed with his disciplinary hearing.

         Officer Edwards appeared as Petitioner's staff representative, and stated that Petitioner:

wanted me to address the dates and policy. His copy of the report says it was written and delivered on the 7th. He wanted me to get information from Burge that he tried to get the letter from him. Burge sent an email stating he asked him for the letter several times. He wanted me to talk to Associate Warden Loftness about the dates of the report. Mr. Loftness stated the dates were solid.

Id. at 70, 75. The DHO considered the staff representative's statement in making her determination. Id. at 75.

         Because Petitioner was questioning staff regarding the dates on his IR, including questioning Associate Warden Loftness via a request through his staff representative, the DHO received inquiries from staff prior to the DHO hearing regarding the appropriateness of the dates of delivery recorded on Petitioner's IR. Id. at 11. The DHO did not consider these inquiries in making her decision and merely informed staff that, generally, correcting the delivery date of an incident report would not impact an inmate's due process rights as long as the inmate at issue was provided sufficient time before the DHO hearing to prepare his defense. Id. The DHO also explained that she would review and address the date issue based on the evidence presented at the DHO hearing. Id.

         In response to Petitioner's requests, including a request through his staff representative, staff member Burge sent the DHO an email received on October 16, 2015, which the DHO also considered. Staff member Burge reported that:

[o]n 3 separate occasions this evening, [Petitioner] has asked me to let you know that “he tried on two different occasions to get his mail back” from the inmate[']s possession that was supposed to be leaving the following morning. He kept insisting that he had a change of heart and that he was trying to prevent it from being sent out. The feeling I got is that he was nervous and was trying to prevent anyone from searching it. When I found the mail and noticed that it was outgoing and sealed I told him I would need to inspect it before returning it. The night ran short ...

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