United States District Court, D. Arizona
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
...