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Pair v. English

United States District Court, D. Kansas

August 7, 2017

DAVID PAIR, Petitioner,
v.
NICOLE ENGLISH, Respondent.

          MEMORANDUM AND ORDER

          JOHN W. LUNGSTRUM U.S. District Judge

         This 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).

         Background

         On 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.[1]

         The 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.[2]

         On the 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 Authorized.[3]

         Petitioner 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.

         On November 17, 2015, petitioner appeared before the UDC but offered no statement. The UDC referred the matter to the Discipline Hearing Officer (DHO).[4]

         On the 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 forms.[5]

         On 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.[6]

         The 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 year.[7]

         The DHO 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.[8]

         As 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 visiting privileges.

         Petitioner 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.[9]

         Petitioner 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.

         Discussion

         To 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 ...


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