United States District Court, N.D. West Virginia, Martinsburg
CARL R. BROWN, Petitioner,
JENNIFER SAAD, WARDEN, Respondent.
REPORT AND RECOMMENDATION
W.TRUMBLE, UNITED STATES MAGISTRATE JUDGE
August 21, 2017, the pro se Petitioner filed an
Application for Habeas Corpus pursuant to 28 U.S.C.
§2241. ECF No. 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.
FACTUAL AND PROCEDURAL HISTORY
Petitioner's Underlying Conviction
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.
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.
The Instant Habeas Corpus Proceeding Filed under 28 U.S.C.
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.
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.
September 8, 2016, 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.
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.
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.
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.
of the timeliness 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.
§ 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.
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.
STANDARD OF REVIEW
Review of Petitions for Relief
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).
Pro Se Litigants.
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.
Habeas Corpus Petitions Filed Pursuant to 28 U.S.C. §
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