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Hill v. Blanckensee

United States District Court, N.D. West Virginia, Clarksburg

January 4, 2018

ANTOINE HILL, Petitioner,
v.
B. VON BLANCKENSEE, Respondent.

          KEELEY JUDGE.

          REPORT AND RECOMMENDATION

          ROBERT W. TRUMBLE UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         On December 7, 2016, Petitioner Robert Antoine Hill (“Petitioner”), acting pro se, filed a Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241, seeking additional Good Conduct Time credits (“GCT”). ECF No. 1. On December 8, 2016, Petitioner paid the $5 filing fee. ECF No. 4. On February 22, 2017, the Court entered an to Show Cause why the Petition should not be granted. ECF No. 6. On April 5, 2017, Respondent filed a response by filing a Motion to Dismiss the Petition or, in the Alternative, a Motion for Summary Judgment. ECF No. 14. On April 6, 2017, the Court entered a Roseboro Notice [ECF No. 15], informing Petitioner of his right and obligation to respond to Respondent's motion. On April 12, 2017, Petitioner filed a Motion for Rule 56 Summary Judgment [ECF No. 17], and on April 17, 2017, Petitioner filed his response to the Motion to Dismiss or for Summary Judgment. ECF No. 18. On December 5, 2017, Respondent was directed to file a supplemental response addressing Petitioner's clarified claim for relief as set forth in his response. ECF No. 20. On December 12, 2017, Respondent filed his Reply [ECF No. 23], and on December 20, 2017, Petitioner filed a surreply. ECF No. 24. The matter is now before the undersigned United States Magistrate Judge for a Report and Recommendation to the District Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR PL P 2. For the reasons set forth below, the undersigned recommends that the Petition be denied.

         II. BACKGROUND

         Petitioner is currently serving an aggregate 137 month term of imprisonment imposed by the United States District Court for the Eastern District of Virginia on October 7, 2008. ECF No. 14-2 at 7. His current projected release date is May 18, 2018, via good conduct time release. ECF No. 14-2 at 6.

         The Petitioner was committed to the custody of the BOP on November 17, 2008. ECF No. 14-2 at 7. On July 6, 2009, Petitioner began taking GED classes. On October 6, 2010, while still enrolled in the GED program, Petitioner received an Incident Report for violations of BOP Disciplinary Codes 307 and 310.[1] Petitioner was found guilty of the offenses by the Unit Disciplinary Committee. Accordingly, he was placed in GED unsatisfactory (“UNSAT”) status. On October 7, 2010, Petitioner voluntarily withdrew from the GED program. He did not re-enroll in the program until December 16, 2013. On August 28, 2014, Petitioner accrued the additional 240 hours of GED enrollment time required as a result of his disciplinary infraction, and was returned to GED satisfactory (“SAT”) status. Petitioner subsequently completed the GED program on May 23, 2016. ECF No. 14-2 at 3-4.

         III PLEADINGS

         A. The Petition

         Petitioner asserts that he earned his GED after “being out for legal purposes.” ECF No. 1 at 9. Therefore, Petitioner contends that his good conduct time should not have been taken from him. In addition, Petitioner alleges that pursuant to 28 C.F.R. § 544.71, the education staff should have documented that he was out of the literacy program for legal purposes. For relief, Petitioner requests that the Court require the BOP to give him back 48 days of good conduct time.

         B. Respondent's Motion to Dismiss or for Summary Judgment

         Respondent acknowledges that Petitioner voluntarily withdrew from the GED program, but maintains that the reason he was placed in GED UNSAT status and therefore earned 42 days of good conduct time instead of 54 days per year, was because of his guilty finding as to the incident report he received on October 6, 2010.

         C. Petitioner's Reply

         Petitioner notes inmates determined by staff to be temporarily unable to participate in the literacy program due to special circumstances beyond their control are exempt from the literacy program. Petitioner maintains that he was “on direct appeal and [] went out on a writ for legal purpose.” ECF No. 18-2. Accordingly, Petitioner argues that he was exempt from participation and should have received the maximum allowable good conduct time. In addition, he argues that he has never “caught” a ...


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