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Brown v. Saad

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

April 9, 2018

CARL R. BROWN, Petitioner,
v.
JENNIFER SAAD, WARDEN, Respondent.

          REPORT AND RECOMMENDATION

          ROBERT W.TRUMBLE, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On August 21, 2017, the pro se Petitioner filed an Application for Habeas Corpus pursuant to 28 U.S.C. §2241. ECF No. 1.[1] The Petitioner is currently a federal inmate housed at FCI Gilmer, however, the incidents complained of in the Petition occurred at FCC Yazoo City, in Yazoo City, Mississippi. Petitioner is challenging the results of a disciplinary action during his confinement at FCC Yazoo City following his conviction in the United States District Court for the Eastern District of Missouri (E.D.Mo.) case number 4:12-CR-4. This matter is pending before the undersigned for an initial review and Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule of Prisoner Litigation Part 2.

         II. FACTUAL AND PROCEDURAL HISTORY

         A. Petitioner's Underlying Conviction[2]

         On January 12, 2012, a grand jury indicted Petitioner and charged him with conspiracy to distribute and possession with the intent to distribute heroin in Count 1 and possession of a firearm during a drug trafficking crime in Counts 3 and 4. ECF Nos. 20, 21. On February 23, 2012, a superseding indictment was issued which charged Petitioner with the same offenses. ECF Nos. 88, 89. On June 21, 2012, a plea agreement was filed with the Court, and the Petitioner entered his guilty pleas to Counts 1 and 3 of the superseding indictment. ECF Nos. 164, 232. On September 21, 2012, the court sentenced Petitioner to a term of imprisonment of 60 months for Count 1 and to 60 months for Count 3, which terms were to be served consecutively to one another, for an effective sentence of 120 months. ECF No. 232. Petitioner filed an appeal with the Court of Appeals for the Eighth Circuit, but later moved to dismiss the appeal, which motion was granted on November 2, 2012. ECF No. 274.

         On August 4, 2016, Petitioner filed a petition for a writ of mandamus with the Court of Appeals for the Eighth Circuit, in that court's case number 16-3271. ECF No. 314. The petition for a writ of mandamus was denied on August 8, 2016. ECF No. 315. On January 19, 2018, Petitioner filed a document titled, “Extraordinary Writ - Pursuant to Rule 21(a) Due Process Violation”, which was construed as a motion to vacate pursuant to 28 U.S.C. § 2255 which remains pending. ECF No. 327.

         B. The Instant Habeas Corpus Proceeding Filed under 28 U.S.C. § 2241

         On August 21, 2017, Petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. ECF No. 1. Petitioner's sole ground for relief is that he suffered a violation of his due process rights based on the conduct and decision of the Discipline Hearing Officer (“DHO”) concerning an Incident Report he received. ECF No. 1 at 5. Petitioner seeks to have 27 days of Good Conduct Time (“GCT”) restore and the DHO's determination vacated and expunged. ECF No. 1 at 8.

         The Incident Report which charged Petitioner and the resulting DHO hearing were based on a September 6, 2016, brawl between a number of inmates playing a basketball game in the prison Rec-yard gymnasium. ECF Nos. 1-1 at 10; 15-1 at 22. After one inmate struck another inmate who was officiating the basketball game, a number of inmates began fighting. Id. Petitioner was identified as one of the fighting inmates via the Vicon Surveillance system. Id.

         On September 8, 2016[3], at 11:58 a.m., Petitioner was charged in Incident Report Number 2893657 with “[a]ssaulting any person”, on September 6, 2016, at 6:45 p.m. ECF Nos. 1-1 at 15, 15-1 at 13. The Incident Report charged Petitioner with a violation of Code 224, which provides it is to be “used when less serious physical injury or contact has been attempted or accomplished by an inmate.” Id. A written copy of the Incident Report notice of charge was provided to Petitioner on September 8, 2016 at 7:15 p.m. ECF Nos. 1-1 at 9, 15-1 at 21.

         The DHO hearing was held on September 26, 2016 at 9:36 a.m. Id. According to the DHO report, Petitioner, “admitted guilt to Fighting with Another Person, Code 201” at the hearing. Id. Further, “When asked if he wanted to make any further comment, he stated ‘I admit to fighting.' ” Id., see also ECF No. 1-1 at 10. In addition to Petitioner's admissions, the DHO report further states that, “SIS Technician R. Dean was clear . . . that on September 8, 2016 at approximately 0800 hours, a review of the video surveillance revealed [Petitioner] among other inmates, striking each other in the facial and lower body areas on September 6, 2016.” ECF No. 1-1 at 10.

         The DHO report found that Petitioner's conviction for a violation of Code 201 had a high offense severity level, and imposed a sanction of disallowance of 27 days of good conduct time. ECF Nos. 1-1 at 11, 15-1 at 23.

         Petitioner attempted to file two administrative remedies with the Bureau of Prisons, first to the Mid-Atlantic Regional Office, in Remedy No. 881202-R1, and second to the Central Office in Remedy No. 881202-A1. The first appeal was rejected as untimely, the second was rejected as illegible. Petitioner did not refile his appeal. ECF No. 15-1 at 2 - 3. Petitioner contends that he attempted to timely file his first appeal, but that prison mail officials prevented him from doing so. ECF No. 1-1 at 1.

         Regardless of the timeliness[4] of his appeal to the Bureau of Prisons regional office, in that appeal Petitioner asserted that at the hearing he admitted that, “I attempted to swing at another inmate but did not assault him (no physical conta[c]t) thus the charging of a 224 violation, which is what [I] plead guilty to.” ECF No. 1-1 at 8. Petitioner further stated that he, “ultimately plead[ed] guilty to the 224 violation I was given notice for/of.” ECF Nos. 1-1 at 7, 16-1 at 8. In that regional appeal, Petitioner did not deny that he was fighting with another inmate. Instead, Petitioner argued that despite his attempts to fight with another inmate, he was improperly convicted of a violation of Code 201 for fighting, because he never received an Incident Report notice of charge for a Code 201 violation. In his regional appeal Petitioner argued that because he received an Incident Report notice of charge for a Code 224 violation for “assaulting any person”, he was improperly convicted of a Code 201 violation for fighting.

         In his § 2241 Petition, Petitioner further claims his due process rights were violated because FCC Yazoo City staff violated internal policies when processing Petitioner's incident report and his placement immediately following the September 6, 2016 fight. ECF Nos. 1 at 5, 1-1 at 2. Petitioner alleges that after the fight, he was taken to the Special Housing Unit (“SHU”) where he was temporarily held for a total of 10 hours before staff determined there was insufficient space for Petitioner to be admitted to the SHU, whereupon he was returned to his housing unit. Id. More specifically Petitioner complains that for five hours he was held in a “cage” without his shoes or a belt, and an additional five hours in the Receiving and Discharge (“R&D”) department. ECF No. 1-1 at 2.

         Petitioner further complains that he did not receive the Administrative Detention Order (“ADO”) report within 24 hours of the writing of the incident report, and that he did not receive a Segregation Review Order (“SRO”) review while held in the SHU. Id.

         III. STANDARD OF REVIEW

         A. Review of Petitions for Relief

         Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and this Court's local rules, the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court. This Court is charged with screening Petitioner's case to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 Cases in the U.S. District Courts; see also Rule 1(b) Rules Governing Section 2254 Cases in the U.S. District Courts (a district court may apply these rules to a habeas corpus petition not filed pursuant to § 2254).

         B. Pro Se Litigants.

         Courts must read pro se allegations in a liberal fashion and hold those pro se pleadings “to less stringent standards that formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Pursuant to 28 U.S.C. § 1915A(b), the Court is required to perform a judicial review of certain suits brought by prisoners and must dismiss a case at any time if the Court determines that the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. A complaint is frivolous if it is without arguable merit either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (superseded by statute). The Supreme Court in Neitzke recognized that:

Section 1915(d) is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11. To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.

490 U.S. at 327.

         C. Habeas Corpus Petitions Filed Pursuant to 28 U.S.C. § 2241

         A petition filed pursuant to § 2241 is the appropriate method to challenge a due process violation as part of a prison disciplinary hearing. Burgess v. Dunbar, 628 Fed.Appx. 175 (4th Cir. 2015). An inmate who is subject to a ...


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