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Handsome v. Graber

United States District Court, D. Arizona

June 25, 2014

Marwan Handsome, Petitioner,
v.
Conrad M. Graber, Respondent.

REPORT AND RECOMMENDATION

BRIDGET S. BADE, Magistrate Judge.

Marwan Handsome (Petitioner) has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. (Doc. 1.) Petitioner claims that the loss of his good time credits violated due process. Respondents have filed a Response arguing that Petitioner's claim lacks merit. (Doc. 8 at 6.) Petitioner has replied. (Doc. 10.) For the reasons set forth below, the Petition should be denied.

I. Background

A. Guilty Plea and Sentence

On September 9, 2010, Petitioner pled guilty to violating 18 U.S.C. § 922(g)(1), Felon in Possession of a Firearm. (Doc. 8, Ex. A; Doc. 8-1 at 8.)[1] He was sentenced to a term of eighty-four months' imprisonment, followed by three years' supervised release. ( Id. at 9-10.) Petitioner began serving his sentence at Federal Correctional Institution-Gilmer (FCI-Gilmer) in Glenville, West Virginia, and is currently incarcerated at Federal Correctional Institution-Phoenix (FCI-Phoenix) in Phoenix, Arizona. (Doc. 1 at 1.) Petitioner has a projected release date of January 23, 2016. (Doc. 8-1 at 15.)

B. The Petition for Writ of Habeas Corpus

In the pending habeas petition, Petitioner raises one ground for relief asserting that his due process rights were violated during disciplinary hearings because the reporting officer falsified the date of the initial report, and he was convicted of the violation despite presenting witness testimony that he did not commit the offense.[2] (Doc. 1 at 1.) As a result, Petitioner lost twenty-seven days of good time credits. (Doc. 8-1 at 25.) Petitioner asks the Court to expunge the incident report and restore his good time credits. (Doc. 1 at 9.)

II. Petitioner's Due Process Claim

A. The Disciplinary Proceedings and Administrative Appeals

On July 5, 2011, FCI-Gilmer officials initiated disciplinary proceedings against Petitioner after he was involved in an incident with a correctional officer. (Doc. 8-1 at 19.) According to the correctional officer, Petitioner walked up a stairwell, approached the officer in a "threatening manner" and asked, "What would you do if I just knocked your ass out?" ( Id. ) The correctional officer reported the threat to the Operation Lieutenant and wrote an incident report the same day. ( Id. at 19, 23.) The incident report charged Petitioner with violating Code 203, Threatening Another with Bodily Harm. ( Id. at 20.) The correctional officer, however, did not sign the report. ( Id. at 4) The incident report was "suspended" to await the correctional officer's signature. ( Id. )

The correctional officer signed the report on July 11, 2011, and the report was released to a lieutenant to investigate the incident. ( Id. at 20.) The lieutenant delivered the incident report to Petitioner, advised Petitioner of his rights, and conducted an interview. ( Id. ) During the interview Petitioner denied talking to the correctional officer. ( Id. at 19.) Petitioner claimed that he was talking to another inmate who was also in the stairwell, Leroy Kelley[3]. ( Id. at 20.) Petitioner asked that Kelley be called as a witness when appropriate. ( Id. )

The Unit Discipline Committee (UDC) held a disciplinary hearing on July 13, 2011. ( Id. at 19.) At the hearing, Petitioner testified that he was talking to Kelley, not the correctional officer, and was "just messing around" with Kelley. ( Id. ) Based on the seriousness of the charge, the UDC referred the matter to a Discipline Hearing Officer (DHO) for further review. ( Id. )

On August 5, 2011, Petitioner appeared at a hearing before a DHO and waived his right to a staff representative, but called Kelley as a witness. ( Id. at 23.) At the hearing, Petitioner stated that he asked inmate Kelley, "What would you do if I knocked you out?" ( Id. ) Petitioner also stated that he and Kelley were standing at the top of the stairwell and that he never threatened the correctional officer. ( Id. ) Kelley stated that he and Petitioner were standing at the bottom, not the top, of the stairwell. ( Id. at 24.) Kelley also stated that he asked Petitioner, "What would you do if I knocked you out?" and that Petitioner replied, "What would you do if I knocked the C.O. [correctional officer] out?" ( Id. ) Kelley added that he and the Petitioner were "joking amongst themselves" and that neither inmate threatened the correctional officer. ( Id. )

The DHO found Petitioner's and Kelley's statements "questionable" and noted that Petitioner provided no evidence (other than his own denial) that he did not threaten the correctional officer. ( Id. at 25) The DHO upheld the charge and revoked twenty-seven days of Petitioner's "good conduct time." ( Id. ) The DHO also sanctioned Petitioner to ten days of disciplinary segregation, with another twenty days of disciplinary segregation suspended, and revoked his commissary and telephone ...


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