United States District Court, N.D. West Virginia, Martinsburg
REPORT AND RECOMMENDATION
W. TRUMBLE UNITED STATES MAGISTRATE JUDGE.
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. 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.
FACTUAL AND PROCEDURAL HISTORY
Conviction and Sentence
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.
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.
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].
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.
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.
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.
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.
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
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.
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
Prison Disciplinary Proceedings
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
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.
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