United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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