United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM U.S. District Judge
matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2241. Petitioner, a prisoner at the United States
Penitentiary, Leavenworth, Kansas (USPL), challenges an
administrative disciplinary proceeding that resulted in the
loss of Good Conduct Time (GCT).
November 12, 2015, a plumbing foreman at the Federal
Correctional Institution, Schuykill, Pennsylvania, discovered
approximately four gallons of intoxicants, sugar, and the
heating element from an iron in a cell assigned to petitioner
and another prisoner. A test of the intoxicants with the
Alco-Sensor III yielded a “Hi” reading,
indicating .500 or greater.
Alco-Sensor equipment had been calibrated ten days earlier,
on November 2, 2015. Under Bureau of Prisons policy, the
equipment must be calibrated every thirty days.
same day, the staff member wrote an Incident Report charging
petitioner with violating Code 113, Possession of
Intoxicants, and Code 305, Possession of Anything Not
received the Incident Report on the same day. At the same
time, he was advised of his rights and stated he understood
them. He requested a staff representative but did not request
witnesses. The Incident Report was sent to the Unit
Discipline Committee (UDC) for review.
November 17, 2015, petitioner appeared before the UDC but
offered no statement. The UDC referred the matter to the
Discipline Hearing Officer (DHO).
same day, petitioner received a Notice of Discipline Hearing
before the DHO advising him of the specific violations
alleged. Petitioner also received a copy of the Inmate Rights
at Discipline Hearing, which included the right to have a
staff representative assist him at the hearing, the right to
present documentary evidence, and the right to present a
statement or to remain silent. Petitioner signed both
November 23, 2015, the DHO conducted a hearing. Petitioner
again requested a staff representative but did not request
witnesses or offer documentary evidence. Although petitioner
requested Kevin McGinley as his representative, he was not
available to assist on the day of the hearing. The DHO
advised petitioner that the hearing could be postponed or he
could proceed with a different staff representative.
Petitioner chose to proceed, and Lieutenant Schreffler was
appointed to assist him.
evidence against petitioner consisted of the incident report
describing the discovery and photographs taken by the
investigating officer showing the bags found in the cell, the
hole behind the cell toilet where the bags were concealed,
the number of the cell where the bags were discovered, and
the Alco-Sensor III showing the reading. Petitioner gave a
statement at the hearing professing his innocence and stating
he had been assigned to the cell for over a
found petitioner committed the violation of Possession of
Intoxicants in violation of Code 113 but expunged the related
charge of Possession of Anything Not Authorized. The DHO
found the weight of the evidence was that the amount of the
intoxicants, approximately four gallons, made it unlikely
petitioner was unaware of the presence of intoxicants in the
cell and that both of the cell's occupants had access to
the area where the bags were hidden.
sanctions, the DHO imposed 60 days of disciplinary
segregation, disallowed 40 days of Good Conduct Time,
forfeiture of 400 days of Non-Vested Good Conduct Time, 8
months loss of telephone privileges, and 8 months loss of
was advised of the DHO's decision and the appeal
procedure. On December 2, 2015, the DHO issued a written
report with a statement of the evidence supporting the
decision and the reason for the sanctions. Petitioner
received the report on the same day.
seeks relief from the disciplinary finding on these grounds:
(1) he was sanctioned more harshly than other,
similarly-situated prisoners; (2) the appointment of
Lieutenant Schreffler violated due process because petitioner
requested another staff member as a representative; and (3)
he was entitled to have the intoxicants tested.
obtain habeas corpus relief, a petitioner must demonstrate
that he is “in custody in violation of the Constitution
or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3). An application for habeas corpus filed
under Section 2241 challenges the execution of a sentence