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Ballinger v. Saad

United States District Court, N.D. West Virginia

April 16, 2018

DANIEL CURTIS BALLINGER, Petitioner,
v.
JENNIFER SAAD, Warden Respondent.

          REPORT AND RECOMMENDATION

          JAMES E. SEIBERT UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         On 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.

         II. BACKGROUND

         A. Conviction and Sentence

         When he 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, 2021. Id.

         B. Prison Disciplinary Proceeding

         On 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.

         That 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 at 4.

         On 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.

         On 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. Id.

         III. CONTENTIONS OF THE PARTIES

         Petitioner 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 ...


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