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Macomber v. Baker

United States District Court, D. Kansas

August 23, 2019

STEPHEN ALAN MACOMBER, Petitioner,
v.
RON BAKER, Warden, Lansing Correctional Facility, Respondent.

          MEMORANDUM AND ORDER

          Sam A. Crow U.S. Senior District Judge

         Petitioner, a state prisoner, filed this pro se petition for writ of habeas corpus under 28 U.S.C. § 2241. Petitioner challenges his prison disciplinary proceedings while incarcerated at the Lansing Correctional Facility in Lansing, Kansas. Petitioner seeks to have his disciplinary conviction reversed and remanded or vacated.

         I. Factual Background

         On December 22, 2016, Petitioner received a Disciplinary Report (“DR”) for Threatening and Intimidating and Disruptive Behavior. (Doc. 1-1, at 5.) The sworn DR provides that:

On 12/22/16 at approximately 0513 hours I (CSI Cawthorn) was at L-210 in response to a medical emergency that had been called by Offender Macomber 44362. While I was at the cell Offender Macomber stated saying that I had better get the full response team [here] because some “shit” was going to happen when the door opened. As I was at the cell door I was directing other offenders to lock down. Offender Macomber began yelling at the other offenders encouraging to not to lock down and to set this “shit” off. Fortunately, the other offenders did not listen to Offender Macomber. Based on the above facts I (CSI Cawthorn) am charging Offender Macomber with 44-12-306, Threatening and Intimidating a Class I Offense, 44-12-318 Disruptive Behavior a Class II Offense.

Id. The DR shows that Petitioner received a copy of the DR on December 22, 2016, at 0809. Id.

         Petitioner's attachments show that prior to the hearing, he requested two witnesses at his Disciplinary Hearing-a staff witness and an inmate witness. (Doc. 1-1, at 17.) The request form shows that the staff witness was to testify that she was unable to identify which of the two inmates in the cell made a threatening comment. Id. The inmate, Petitioner's cellmate, would testify that Petitioner never made any threatening statements. Sgt. Johnson commenced the hearing on December 28, 2016, and questioned Petitioner and allowed Petitioner's cellmate to testify. Petitioner's cellmate testified that Petitioner did not make the threatening statements, but Petitioner alleges that when the cellmate started to testify that he was actually the one that made the statements, the hearing officer would not let him finish his statement and “failed to indicate so in the disciplinary record.” Id. at 3. Petitioner waived his right to call the staff witness, and the hearing was continued to the next day in order to hear the testimony of the 3rd shift officers who were present at the cell where the incident occurred. Id. at 3, 17. On December 29, 2016, Lt. McGuire conducted the rest of the hearing, allowing Sgt. Cawthorn and Petitioner to testify. The second 3rd shift officer, who Petitioner states was his staff witness, did not testify. Petitioner was found guilty of the disciplinary violations and received a fine and privilege restrictions. See Doc. 1-1, at 10 (record of testimony).

         II. Analysis

         To obtain habeas corpus relief, an inmate must demonstrate that “[h]e is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). While § 2241 does not contain an express exhaustion requirement, Tenth Circuit precedent requires a state prisoner challenging the execution of his sentence pursuant to 28 U.S.C. § 2241 to exhaust available state court remedies prior to filing a federal habeas petition. See Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002) (citing Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000). Respondent acknowledges that Petitioner has exhausted his state court remedies. (Doc. 12, at 3.)

         Habeas claims made under § 2241 are reviewed de novo. Walck v. Edmondson, 472 F.3d 1227, 1235 (10th Cir. 2007).[1] “[W]hat is needed in order for § 2254(d) to apply is a state court adjudication on the merits of a claim challenging a state conviction and/or sentence brought forth by an individual in state custody.” Id. at 1234-35 (emphasis added) (“The deferential standard of review contained within § 2254 is . . . only properly invoked when an individual in state custody collaterally attacks the validity of a state conviction and/or sentence.”); see also Leatherwood v. Allbaugh, 861 F.3d 1034, 1042 (10th Cir. 2017) (reviewing state court's denial of claims under § 2241 de novo and finding the standard less demanding than § 2254(d)) (citing Phillips v. Court of Common Pleas, Hamilton Cty., 668 F.3d 804, 810 (6th Cir. 2012) (“[H]abeas petitions governed by § 2241 are not subject to the heightened standards contained in § 2254(d)”); Martinez v. Caldwell, 644 F.3d 238, 242 (5th Cir. 2011) (“The deferential standard afforded to state court decisions, which is specifically articulated in § 2254, is not included in the text of § 2241.”)). Accordingly, the undersigned declines to apply § 2254's deferential standard to this § 2241 action.

         Petitioner alleges that he was denied due process at his disciplinary hearing: 1) because his bifurcated disciplinary proceeding had two Disciplinary Hearing Officers (“DHOs”) presiding over the hearing and the DHO rendering the decision did not hear the testimony of Petitioner's witness; 2) when the testimony of his witness was restricted by the first DHO; and 3) because the DHOs were not impartial because Petitioner previously had physical altercations with both DHOs.

         A prisoner's due process rights are limited. “Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). An inmate receives due process in conjunction with an institutional disciplinary proceeding if he is given: “(1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action.” Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985) (citations omitted). If these protections are provided and there is “some evidence” to support the resolution of the disciplinary charge, then the Due Process Clause's procedural requirements have been satisfied. Id.; Mitchell v. Maynard, 80 F.3d 1433, 1445 (10th Cir. 1996) (noting that the scope of a court's due process review of a prison disciplinary proceeding is limited to determining whether Wolff's requirements are met and there is some evidence to support the decision).

         Petitioner does not allege that he did not receive advance written notice of the disciplinary charge, or a written statement of the evidence relied on and the reasons for any disciplinary action. Although Petitioner acknowledges that he waived his right to call his staff witness, and that his inmate witness (his cellmate) was allowed to testify, he alleges that his cellmate was not allowed to finish his testimony. Petitioner alleges that his cellmate would have testified that he was the one who made the statements in question. The witness request form, however, only sets forth that the cellmate's testimony will be that Petitioner did not make threatening statements. (Doc. 1-1, at 17.)

         The Court does not find that Petitioner's due process rights were violated when the testimony of his cellmate was restricted. To provide due process, prison officials must give an inmate facing disciplinary proceedings the opportunity “to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.” Wolff, 418 U.S. at 566. “[A] prisoner cannot maintain a due process claim for failure to permit witness testimony unless he also shows that the testimony ‘would have affected the outcome of ...


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