Darden v. Blanckensee

          REPORT AND RECOMMENDATION

          Honorable Jacqueline M. Rateau United States Magistrate Judge

         Pending before the Court is a Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody filed by Robert Antoine Darden (“Petitioner”). (Doc. 1). On May 13, 2019, Respondent filed A Return and Answer to Petition under 28 U.S.C. § 2241 for a Writ of Habeas Corpus. (Doc. 12). On May 31, 2019, Petitioner filed Motion Under Rule which the Court designated as a Reply. (Docs. 16, ). As explained below, the Magistrate Judge recommends that the Petition be dismissed.^[1]

         I. Background

         Petitioner is incarcerated in the United States Penitentiary in Tucson, Arizona (“USP Tucson”). (Doc. 12-2, p. 2-3.) He is serving a 600-month sentence for Conspiracy to Produce Child Pornography and Tampering with a Witness, Victim or Informant. (Id.) His projected release date is February 18, 2055 via good conduct time release. (Doc. 12-2, p. 5-7.)

         In this matter, Petitioner alleges that his rights were violated during a disciplinary hearing. He asks that the Court order the Federal Bureau of Prisons to expunge his incident report and credit back to him 41 days of good conduct time. Respondent argues that the Petition should be denied and dismissed because Petitioner failed to show that his constitutional rights were violated.^[2]

         Petitioner makes four arguments in his Petition: 1) that he was not put on notice as to how he had constructive possession of the weapon (Doc. 1-1, p. 2-4); 2) that the Discipline Hearing Officer (“DHO”) was not impartial because she relied on the officer's account as stated in the incident report (Id. at 5-6); 3) that there was insufficient evidence that he committed the violation (Id. at 7-9); and 4) that based on new-reliable evidence, he is factually innocent of the charge. (Id. at 10-11).

         II. Facts

         At 8:43 a.m. on December 29, 2017, while searching Petitioner's cell, an officer found a homemade weapon hidden in the back compartment of Petitioner's secured locker. (Doc. 12-2, p. 14-15.) The weapon appeared to be a “lock-n-sock” consisting of a cut-up grey shirt fashioned and tied into a circular handle with a combination lock attached by knots to hold it in place. (Id.) Within two hours of the discovery, an investigation was initiated. (Id.) At 10:44 a.m., Petitioner was advised of his rights and stated that he understood them. (Id.) He was provided written notice of the charge. (Id.) When asked if he had any comments, he responded, “no comment.” (Id.) At 12:13 p.m., the investigation was complete and an Incident Report was prepared charging Petitioner with “possession, manufacture, or introduction of a gun, firearm, weapon, sharpened instrument, knife, dangerous chemical, explosive, ammunition, or any instrument used as a weapon.” (Id.) Because of the type of sanctions that could be imposed, the case was referred to a DHO. (Id. at 14-15).

         On January 2, 2018, Petitioner was advised of his rights before a DHO. (Id. at 12-13.) He was also advised that an adverse finding by the DHO could result in a rescission or retardation by the Parole Commission of the presumptive of effective parole date. (Id.) Petitioner was advised that the DHO would be calling those witnesses who were reasonably available and determined by the DHO to have information relevant to the charges. (Id.) Petitioner waived his right to present witnesses as well as his right to have a staff representative appointed. (Id.) He was informed that his disciplinary hearing would occur on January 10, 2018. (Id.)

         At the disciplinary hearing on January 10, 2018, in addition to the incident report and details of the investigation, the DHO considered the following documentary evidence: a photograph of the weapon; a memorandum prepared by a senior correctional officer describing the search and a memorandum prepared by the technician detailing chain of custody. (Id. at 9-11, 17-18.) The only statement made by the Petitioner at the hearing was in reference to the photograph of the weapon wherein he stated, “it didn't look like that.” (Id.) Petitioner did not call any witnesses or ask to have a staff representative appointed to represent him at the hearing. (Id.) He was advised of the option to postpone the hearing to obtain representation; he declined. (Id.)

         The DHO found that Petitioner committed the prohibited act of possession of a weapon and/or sharpened instrument and further found that the contrived instrument could cause bodily harm if used against someone. (Id.) In order to convey the seriousness and inappropriateness of his actions, Petitioner was sanctioned with the loss of 41 days of good conduct time. (Id.) In addition to being provided with a copy of the DHO's Report, Petitioner was advised of the findings, the specific evidence relied on and the action and reason for the disciplinary action. (Id.) He was advised that he had 20 calendar days from the date of the report to appeal the action. (Id.) Presumably, the time began to run when Petitioner received the Report on January 26, 2018. (Id.)

         III. Law

         A. The Due Process Requirements in a Prison Disciplinary Hearing

         Federal prisoners serving a term of imprisonment of more than one year have a statutory right to receive credit toward their sentence for good conduct. See 18 U.S.C. § 3624(b); 28 C.F.R § 523.20 (2008). When such a statutorily created right exists, a prisoner has a constitutionally protected ...