Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Zellner v. Entzel

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

May 1, 2018

ANTHONY EDWARD ZELLNER, Petitioner,
v.
FREDERICK ENTZEL, JR., Respondent.

          REPORT AND RECOMMENDATION

          ROBERT W. TRUMBLE UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         On August 14, 2017, Petitioner Anthony Edward Zellner (“Petitioner” or “Defendant”), an inmate incarcerated at Hazelton FCI, acting pro se, filed a Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241. ECF No. 1.[1] On December 12, 2017, this Court entered an “Order Directing Respondent to File Answer, Motion or other Responsive Pleading”. ECF No. 8. On January 5, 2018, Petitioner filed a “Motion to the Court to clarify Petitioner's Grievances Alleged in Petition to the Court from the Very Beginning”, with four exhibits attached thereto. ECF Nos. 16, 16-1, 16-2, 16-3, 16-4. On January 16, 2018, the Respondent filed a motion to dismiss or, alternatively, for summary judgment, and memorandum in support thereof with an exhibit attached thereto. ECF Nos. 20, 21, 21-1. Following issuance of a Roseboro notice on January 25, 2018 [ECF No. 25], Petitioner filed a response on February 14, 2018. ECF No. 27. 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 dismissed with prejudice.

         II. FACTUAL AND PROCEDURAL HISTORY[2]

         A. Conviction and Sentence

         On October 19, 1999, a criminal information was filed in case number 2:99-CR-164 in the Eastern District of Virginia, Norfolk Division. ECF No. 1. On that same date, a waiver of indictment and plea agreement were filed in open court during a plea hearing. ECF Nos. 2, 3. On February 3, 2000, Petitioner was sentenced to 384 months of imprisonment followed by four years of supervised release. ECF No. 8. On April 30, 2001, Petitioner filed a motion to vacate pursuant to 28 U.S.C. § 2255. ECF No. 9. On June 20, 2001, Petitioner filed a successive § 2255 motion, along with a supplemental motion and a memorandum. ECF Nos. 10, 11, 12. On June 22, 2001, the District Court dismissed Petitioner's § 2255 motion [ECF No. 9]. ECF No. 13. On July 2, 2001, Petitioner filed a motion to reconsider the dismissal order. ECF No. 14. On June 20, 2001, the District Court dismissed Petitioner's successive § 2255 motion [ECF No. 10]. ECF No. 15. On June 20, 2001, the District Court entered an order denying Petitioner's motion to reconsider [ECF No. 14]. ECF No. 16.

         On August 15, 2001, Petitioner filed a notice of appeal with the United States Court of Appeals for the Fourth Circuit in that court's case number 01-7378. ECF No. 17. By unpublished per curium decision decided February 6, 2002, the Fourth Circuit denied Petitioner a certificate of appealability and dismissed his appeal. ECF Nos. 20, 21, 22, 23. An August 14, 2002, docket entry indicates that Petitioner filed a petition for a writ of certiorari with the United States Supreme Court. An October 21, 2002, docket entry indicates that the Supreme Court denied certiorari.

         On November 1, 2002, Petitioner filed with the District Court a motion with memorandum in support of his motion to vacate. ECF No. 28. On November 14, 2002, the United States filed a response. ECF No. 29. On December 5, 2002, Petitioner filed a reply. ECF No. 30. On March 24, 2003, the Court entered an order [ECF No. 31] which dismissed the memorandum in support [ECF No. 28-1].

         On May 19, 2004, Petitioner filed a notice of appeal with the Court of Appeals for the Fourth Circuit in that court's case number 03-6835. ECF No. 32. On July 9, 2004, by unpublished per curiam opinion, the Fourth Circuit denied Petitioner a certificate of appealability and dismissed his appeal. ECF Nos. 33, 40. On August 12, 2004, Petitioner filed a motion for rehearing en banc, which was denied by order entered on September 21, 2004. ECF Nos. 34, 39; Court of Appeals 03-6835, ECF Nos. 22, 28.

         On August 16, 2004, Petitioner filed a motion to vacate the judgment pursuant to Federal Rule of Civil Procedure 60(b)(6), and a memorandum of law in support thereof. ECF Nos. 35, 36. On August 19, 2004, the Government filed a motion to dismiss and response to the Rule 60(b)(6) motion. ECF No. 37. On September 20, 2004, Petitioner filed a reply. ECF No. 38. On December 29, 2004, the District Court entered a memorandum opinion and order which denied the motion to vacate pursuant to Federal Rule of Civil Procedure 60(b)(6). ECF No. 41. On January 18, 2005, Petitioner filed a motion for reconsideration. ECF No. 42. On February 10, 2005, the District Court entered a memorandum opinion and order which denied the motion to reconsider. ECF No. 43.

         On April 6, 2005, Petitioner filed a notice of appeal of the District Court's orders entered December 29, 2004, and February 10, 2005, with the Court of Appeals for the Fourth Circuit in that court's case number 05-6537. ECF No. 44. On October 19, 2005, by unpublished per curiam opinion, the Fourth Circuit denied Petitioner a certificate of appealability and dismissed his appeal. ECF Nos. 45, 46.

         By order entered January 26, 2006, the Court of Appeals denied Petitioner's motion filed pursuant to 28 U.S.C. § 2244 to file a successive application. ECF No. 47; Court of Appeals 05-586, ECF No. 7.

         On July 17, 2006, Petitioner filed a motion for “new” and “independent” action pursuant to Federal Rule of Civil Procedure 60(b). ECF No. 48. On July 25, 2006, the District Court entered a memorandum order which denied Petitioner's motion. ECF No. 49. On August 30, 2006, Petitioner filed a notice of appeal with the Court of Appeals for the Fourth Circuit, in that court's case number 06-7569, as to the District Court's order denying relief under Rule 60(b). ECF No. 50. By unpublished per curiam opinion filed April 3, 2007, the Court denied a certificate of appealability and dismissed the appeal. Court of Appeals 06-7569, ECF Nos. 24, 25. The opinion further denied Petitioner authorization to file a successive § 2255 motion. ECF No. 51; Court of Appeals 06-7569, ECF No. 25 at 7.

         On May 23, 2008, Petitioner filed a notice of appeal with the Court of Appeals for the Fourth Circuit in that court's case number 08-7000, “for a review of an otherwise final sentence pursuant to [ ] 18 U.S.C. § 3742.” ECF No. 53, 54; Court of Appeals 08-7000, ECF No. 9. On July 24, 2009, the Fourth Circuit entered an order which granted the Government's motion to dismiss the appeal as untimely. ECF No. 56; Court of Appeals 08-7000, ECF Nos. 37, 38, 39. On September 11, 2009, the Fourth Circuit entered an order denying as untimely Petitioner's motion for rehearing en banc. ECF No. 59; Court of Appeals 08-7000, ECF No. 44.

         On October 13, 2015, Petitioner filed with the District Court a letter which was construed as a motion to reduce his sentence. ECF No. 62. On December 9, 2015, appointed counsel filed a motion to reduce sentence. ECF No. 66. On January 8, 2016, the Government filed a response to Petitioner's motion to modify his sentence. ECF No. 73. On February 17, 2016, the District Court entered an order which denied Petitioner's motion to reduce his sentence, finding that Petitioner was “not eligible for a sentence reduction under Amendment 782 of the Fair Sentencing Act.” ECF No. 75.

         B. Prison Disciplinary Proceedings

         On January 30, 2015, while Petitioner was incarcerated at FCI Fort Dix, in Joint Base MDL, New Jersey, he was charged in an incident report with possession of a sharpened object. ECF No. 21-1 at 15. On that date, employee B. Tarquinio reported that:

While performing a random room search in 5802 room 215, I found a homemade sharpened instrument in inmate Zellner REG# 51432-083 secured wall locker 2156L. The homemade instrument was found in the 2nd shelf under a towel under a large amount of vari[ous] clothing. The homemade instrument looks like a 8 in. long white sharpened hard plastic [w]ith a black string handle sharpened to a point. Locker was secured before the search and inmate was packed out after search.

Id. The incident report includes comments from the Petitioner that he was “not guilty”, “the locker couldn't be locked, because I have never locked the locker, ” and that he believed “someone placed the weapon in [his] locker in retaliation [for complaining] against a staff member.” Id. On the following day, January 31, 2015, the Unit Disciplinary Committee (“UDC”) referred the matter to a Discipline Hearing Officer (“DHO”) “based on [the] seriousness of [the] incident report.” Id. Also on January 31, 2015, a “Notice of Discipline Hearing Before the (DHO)” (“the Notice”) was issued to Petitioner, who signed and dated the document on that date. ECF No. 21-1 at 17. The Notice indicated that Petitioner initially elected to have a staff representative, J. Ordonez, at the hearing, but later waived that right on February 19, 2015. Id. The Notice further indicated that Petitioner wished to call three witnesses who could testify that Petitioner never locked his locker. Id. On the same date the Notice was issued, January 31, 2015, Petitioner also received and acknowledged receipt of “Inmate Rights at Discipline Hearing” notice. ECF No. 21-1 at 19.

         The DHO hearing was held on March 18, 2015, by DHO A. Boyce, whose Discipline Hearing Officer Report was issued March 30, 2015. ECF No. 21-1 at 21-22. According to the DHO Report:

Inmate Z[ellner]. . . made the following statement, “I had a problem with a staff member in January 2015. I got this shit two weeks after. On Friday inmate [redacted] saw the staff members go in and search. I never secure my locker.” The DHO asked if the writer of the report was the staff member he had a problem with he stated no.

ECF No. 21-1 at 21. The DHO found that Petitioner committed the act as charged, and included the following specific evidence relied on to support his findings:

I find that on January 30, 2015, at about 2:30 p.m., at the Federal Correctional Institution, Fort Dix, New Jersey, you did commit the prohibited act of Code 104, Possession, manufacture or introduction of a sharpened instrument.
This decision is based on the evidence provided before me, which is documented in the written report provided by the reporting employee. . . . The DHO took into consideration your statement at the hearing. . . . Also considered were the witness statements that you leave your locker open.
In a correctional environment, [i]nmates who claim they left their lockers open must be held accountable at the same level as if their locker was secured. Otherwise, inmates who are hiding contraband could avoid or lessen the consequences by simply stating my locker was open. You do not deny the items were ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.