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Pompey v. N.C. English

United States District Court, D. Kansas

January 16, 2020

ANDREW POMPEY, Petitioner,
N.C. ENGLISH, Respondent.



         This matter is a petition for habeas corpus filed under 28 U.S.C. § 2241 by a prisoner in federal custody. Petitioner, proceeding pro se, seeks the expungement of a prison disciplinary conviction and the return of good time credits.


         At the time relevant to this petition, petitioner was incarcerated in the United States Penitentiary, Leavenworth, Kansas.

         On October 31, 2018, an officer conducting a search of the cell occupied by petitioner and another prisoner discovered a brown substance attached to the cell trash can. The officer delivered the material to Lieutenant A. Privett, who tested it using NIK Kit A and NIK Kit U.[1] The testing confirmed the substance was an amphetamine. The results were documented in photos and an incident report, but action on the report was suspended pending the referral of the case to the FBI for potential prosecution.

         The FBI declined prosecution, and the incident report was released for administrative action on November 8, 2018. The incident report was reissued and investigated by staff on November 14, 2018. During the investigation, petitioner was advised of his rights and declined to make a statement.

         The incident report was referred to the Unit Discipline Committee (UDC). On November 19, 2018, Warden English granted an extension of time for the completion of the disciplinary process due to an administrative error. Petitioner appeared before the UDC on the same day but gave no statement. Due to the severity of the charge, the UDC referred the matter to the Discipline Hearing Officer (DHO).

         On the same day, petitioner received a notice of hearing and a written explanation of his rights at the hearing. He signed both documents and noted that he did not want to call witnesses or to have a staff representative.

         On November 28, 2018, the DHO conducted the hearing. She reviewed petitioner's due process rights with him and noted that he did not wish to have a staff representative and did not want to present witnesses or documentary evidence. The DHO took notice that the UDC process was not conducted within the usual five-day period but noted that the Warden had approved an extension. Petitioner appeared at the hearing and stated, “I just moved in the cell the day before. I didn't know it was in there. I don't know what amphetamines are.” The DHO considered the incident report, the memorandum explaining the testing conducted by Lieutenant Privett, the photos taken during the testing, petitioner's silence during the investigation and before the UDC, and his statement at the hearing. Based on the evidence, she found that petitioner had committed the prohibited act. The DHO imposed the loss of 41 days of Good Conduct Time and restrictions of 90 days on commissary, e-mail, and visitation. The DHO advised petitioner of her findings and how to appeal. On December 19, 2019, petitioner received a written report setting out the decision of the DHO.


         A petition filed under § 2241 generally is “an attack by a person in custody upon the legality of that custody, and … the traditional function of the writ is to secure release from illegal custody.” McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997)(quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). “A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity and must be filed in the district where the prisoner is confined.” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). The Tenth Circuit has recognized that an “action challenging prison disciplinary proceedings, such as the deprivation of good-time credits, is not challenging prison conditions, it is challenging an action affecting the fact or duration of the petitioner's custody.” McIntosh, 115 F.3d at 812.

         Prisoners must be afforded due process in institutional disciplinary proceedings. However, “[p]rison 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). In a prison disciplinary proceeding, due process requires that a prisoner receive “(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). Disciplinary action must be supported by “some evidence” in the record. Id. at 455. This evidentiary standard “does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence.” Id. Instead, the federal habeas court must consider “whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Id. at 455-56.

         Here, petitioner received written notice of the disciplinary charges, had an opportunity to present a defense, and received both an oral explanation and a written statement of decision and the reasons supporting it. Next, the record contains some evidence supporting the decision of the DHO, as it includes the incident report, the positive drug test results developed by staff, and photographs of the substance found in petitioner's cell. This satisfies the due process requirements established in Wolff and Hill.

         Despite petitioner's claim that the UDC proceeding was improperly delayed, he has not made any argument that the approximately ten days that elapsed between the release of the incident for administrative processing on November 8, 2018, and the UDC hearing on November 19, 2018, prejudiced to his ability to defend himself. While a five-day deadline ordinarily applies to the processing of an incident report, the Warden approved ...

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