United States District Court, S.D. West Virginia, Bluefield
PROPOSED FINDINGS AND RECOMMENDATION
L. Tinsley United States Magistrate Judge.
before the court is the petitioner's Petition for a Writ
of Habeas Corpus, pursuant to 28 U.S.C. § 2241, which
was filed on April 20, 2015. (ECF No. 1). The petitioner has
paid the $5.00 filing fee. (ECF No. 4). This matter is
assigned to the Honorable David A. Faber, Senior United
States District Judge, and it is referred to the undersigned
United States Magistrate Judge for submission of proposed
findings and a recommendation for disposition, pursuant to 28
U.S.C. § 636(b)(1)(B).
HISTORY AND THE PETITIONER'S PRESENT CLAIM
petitioner is a federal inmate who, at the time he filed the
instant petition, was incarcerated at the Federal
Correctional Institution, McDowell, in Welch, West Virginia.
The petition challenges an institutional disciplinary action
taken against him at FCI Miami in 2014, for possession of
contraband consisting of a cellular phone. Following a
hearing before a Disciplinary Hearing Officer
(“DHO”), the petitioner was found guilty of the
charge and sanctioned with the disallowance of 40 days of
good conduct time (“GCT”), 60 days of
disciplinary segregation, and one year loss of telephone
privileges. The instant petition asserts both substantive and
procedural due process violations resulting from these
April 8, 2016, the undersigned issued an Order to Show Cause,
directing the respondent to file a response to the
petitioner's section 2241 petition. (ECF No. 7). The
respondent, by counsel, filed a response to the petition on
April 29, 2016. (ECF No. 10). On May 6, 2016, the petitioner
filed a Reply. (ECF No. 11). This matter is ripe for
respondent's Response addresses the Bureau of
Prisons' (“BOP”) rules for inmate discipline,
which are found in 28 C.F.R. Part 541 et seq.
According to these rules, where a staff member believes an
inmate has violated a BOP regulation, the staff member
prepares an incident report and provides the inmate with a
written copy of the charges against him, normally within 24
hours of when staff becomes aware of the alleged violation.
See 28 C.F.R. § 541.5(a). Thereafter, an
investigating officer is assigned to inform the inmate of the
charges and take a statement from the inmate. An inmate is
advised that he has a right to remain silent, but that an
adverse inference may be drawn from his silence, which may,
alone, be used to support a finding that he committed the
prohibited act. Id., § 541.5(b).
Unit Disciplinary Committee (“UDC”) will review
the incident report, usually within five days of its
issuance. The inmate is permitted to appear and make a
statement and present documentary evidence before the UDC
either in person or electronically, except during the
UDC's deliberations, or if institutional security would
be jeopardized by his presence. Id., §§
541.7(c), (d), and (e). The UDC then makes a decision based
upon at least some evidence, and if there is conflicting
evidence, based upon the greater weight thereof.
Id., § 541.7(e).
may determine whether or not the inmate committed the
prohibited act as charged, or refer the case to a
Disciplinary Hearing Officer (“DHO”) for further
proceedings. Id., § 541.7(a)(1)-(H). When
charges are referred to the DHO, the UDC advises the inmate
of the rights afforded to him at the DHO hearing.
Id., § 541.7(g). An inmate may request to have
a staff representative and/or witnesses at the DHO hearing.
Id., § 541.8. At the hearing, the inmate may
make a statement, present documentary evidence, and present
witnesses on his behalf, subject to institutional security
issues. Id., § 541.8(f).
considers all evidence presented at the hearing and
determines whether or not the inmate committed the
infraction, or whether further investigation is needed.
Id., § 541.8(a). The DHO prepares a record of
the proceedings, which need not be verbatim. The record
documents the advisement of the inmate's rights, the
DHO's decision, the evidence relief upon in making the
decision, and the reasons for the sanctions imposed.
Id., § 541.8(h).
to the respondent's Response, on May 25, 2014, while
housed at FCI Miami, a correctional officer completed
Incident Report No. 2587050, charging the petitioner with a
violation of prohibited act code 108, Possession of a Cell
Phone, after the correctional officer found the device in the
petitioner's underwear during a search. (ECF No. 10, Ex.
1, Attach. A, § 11). The petitioner received a copy of
the incident report on May 26, 2014 at 7:15 a.m.
(Id., §§ 15, 16). The Lieutenant tasked
with conducting an investigation into the incident advised
the petitioner of his rights that same day. (Id.,
§§ 23, 24). The petitioner responded, “I have
no comment.” (Id., § 24).
hearing was held on May 28, 2014. (ECF No. 10, Ex. 1, Attach.
A, § 21). Again, the petitioner told the UDC that he had
“no comments.” (Id., § 17). The
incident report was forwarded to a DHO for further
proceedings. (Id., §§ 18, 19).
petitioner was provided with a Notice of Disciplinary Hearing
Before the DHO on May 28, 2014. (ECF No. 10, Ex. 1, Attach.
B). The petitioner did not request a staff representative or
that any witnesses be made available for the hearing.
(Id.) The petitioner was also provided with a form
advising him of his rights at the DHO hearing. (ECF No. 10,
Ex. 1, Attach. C).
hearing was held on May 29, 2014. (ECF No. 10, Ex. 1, Attach.
D). At the hearing, the petitioner was advised of his rights,
and he acknowledged that he understood those rights. The
petitioner admitted the accuracy of the incident report,
stating, “I had it. I bought it for $1, 400.00.”
(Id. at Part III, § B, and Part V). However,
the DHO's Report, drafted after the hearing, mistakenly
indicated that the petitioner ...