United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
E. SEIBERT UNITED STATES MAGISTRATE JUDGE.
October 18, 2017, Petitioner Daniel Ballinger
(“Petitioner” or “Defendant”), acting
pro se, filed a Petition for Habeas Corpus Pursuant
to 28 U.S.C. § 2241 (the “Petition”). ECF
No. 1. On October 19, 2017, the Court entered an Order to
Show Cause why the Petition should not be granted. ECF No. 6.
On October 27, 2017, Respondent filed a response to the
Petition by filing a Motion to Dismiss the Petition or, in
the Alternative, a Motion for Summary Judgment. ECF No. 10.
On October 30, 2017, the Court entered a Roseboro
Notice, informing Petitioner of his right and obligation to
respond to the Government's Motion. ECF No. 12. On
November 13, 2017, Petitioner filed his Response. ECF No. 14.
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.
Conviction and Sentence
initiated this matter, Petitioner was incarcerated at the
federal correctional institution in Glenville, West Virginia
(“FCI Gilmer”). ECF No. 11-1 at 1. He has since
been transferred to the federal correctional institution in
Memphis, Tennessee. ECF No. 15. He is serving a 151-month
sentence imposed by the United States District Court for the
Eastern District of Tennessee on August 11, 2011, for
Possession with Intent to Distribute Fifty Grams or More of
Cocaine Base. ECF No. 11-1 at 1. His projected release date,
with consideration for good conduct time, is January 10,
Prison Disciplinary Proceeding
October 22, 2016, a staff member at FCI Gilmer drafted an
incident report regarding Petitioner, an inmate of that
institution. The staff member reported that:
At approximately 10:25 AM on Saturday, October 22, 2016 as I
was conducting a random cells search for contraband in cell
127 and housing unit C-1, I recovered a homemade weapon
approximately 6 ½ inches in length, with a
blue-and-white handle taped on one end and a piece of metal
that was sharpened to a point attached to the other end. The
item was taped underneath the locker directly beside of the
bunks inside of the cell. Items within the locker are
identifiable to inmate Ballenger, Curtis 21489 - 074.
Possession of this item is in direct violation of prohibited
act code 108.
ECF No. 11-1 at 4.
same day, a copy of the incident report was provided to
Petitioner at 4:35 PM. Id. The Unit Discipline
Committee (“UDC”) assigned a BOP Lieutenant to
investigate the charges. ECF No. 11-1 at 5. During the
investigation, the BOP's Lieutenant interviewed
Petitioner after informing him that he had the right to
remain silent. Id. Petitioner stated, “They
need to rewind the cameras and see who planted that in our
cell.” Id. The investigation was completed at
5:00 PM on October 22, 2016, and the Lieutenant concluded
that based on the information in block 11 of the incident
report, the report was true and correct as written and
warranted. Following the investigation, the UDC forwarded the
Incident Report to the Disciplinary Hearing Officer
(“DHO”) and recommended that, if Petitioner was
found guilty of the charges, the DHO discipline him with,
among other things, loss of good conduct time. ECF No. 11-1
October 25, 2016, FCI Gilmer staff notified Petitioner that a
DHO would conduct a hearing to address the allegations
against him. ECF No. 11-1 at 7. In addition, staff notified
Petitioner of his rights as an inmate facing discipline. ECF
No. 11-1 at 9.
December 6, 2016, a DHO conducted a disciplinary hearing to
address the allegations against Petitioner. ECF No. 11-1 at
11. The DHO again advised Petitioner of his rights as an
inmate facing discipline. Id. Petitioner confirmed
that he understood his rights and decided to proceed without
his previously requested staff representative and declined to
call a witness. Id. When the DHO asked Petitioner
about the weapon, he responded: “No, it wasn't my
weapon. Someone must have put it there.” Id.
at 11. After considering the incident report and
Petitioner's statement, the DHO concluded that Petitioner
had possessed a weapon. Id. More specifically, the
DHO concluded that Petitioner had possessed a dangerous
weapon, which is a BOP prohibited act classified as a
“Code 104.” Id. at 12; See also
28 CFR 541.3. The DHO noted that neither Petitioner nor his
cellmate admitted to possessing the weapon. Id.
Furthermore, the DHO noted that Petitioner is ultimately
responsible for everything inside of his cell, including
concealed contraband. Id. The DHO sanctioned
Petitioner with 40 days loss of good conduct time, 14 days
disciplinary segregation (suspended pending 100 days clear
conduct); 90 days loss of commissary; and 90 days loss of
phone. The report also included the reason for
Petitioner's sanctions. Id. To illustrate, the
report provided that:
The action/behavior on the part of any inmate to possess,
manufacture, or introduce any type of weapon, or weapon
making materials, firearm, or knife capable of inflicting
serious injury to another person, whether another inmate or
staff member, threatens the health, safety, and welfare of
not only the inmate involved, but all other inmates and staff
alike. In the past this action has been shown to result in
more serious injuries and cannot be tolerated.
Id. at 13. A written report summarizing the
disciplinary hearing, including the reasons for the imposed
sanctions, was delivered to Petitioner on January 16, 2017.
CONTENTIONS OF THE PARTIES
alleges that he was denied his due process rights in
violation of 28 CFR 541. More specifically, Petitioner
alleges that the DHO “constructively” amended the
incident report by finding him guilty of violated prohibited
act code104 as opposed to code 108 as charged in the incident
report. In addition, Petitioner maintains that the
constructive possession rule does not apply to this case
because his cell was accessible not only to himself and his
cellmate but also to any of the 130 inmates that lived in
that unit because the inmate cells remain unlocked during the
day except during preset head counts. Petitioner maintains
that the contraband found underneath the locker in his cell
was in an area that can be accessible to any other inmate.
Therefore, Petitioner argues that any inmate could easily
have planted the weapon in his cell as it would not have
taken even 5 seconds to go inside the cell ...