Kincer v. Winn

Filing 17

ORDER, the Petition for Writ of Habeas Corpus 1 pursuant to Title 28, United States Code, Section 2241, filed on June 19, 2013 by Kelly Lynn Kincer is DENIED. The Clerk is directed to prepare a judgment and close this case. Signed by Magistrate Judge Leslie A Bowman on 8/25/14. (KAH)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kelly Lynn Kincer,
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Petitioner,
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vs.
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Louis Winn,
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Respondent.
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No. CV-13-505-TUC-LAB
ORDER

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On June 19, 2013, Kelly Lynn Kincer, an inmate confined (at that time) in the United

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States Penitentiary in Tucson, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to

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Title 28, United States Code, Section 2241. (Doc. 1) Kincer claims the Bureau of Prisons

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(BOP) wrongfully deprived him of 47 days of Good Conduct Time.

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Magistrate Judge Bowman presides over this action pursuant to 28 U.S.C. § 636(c).
(Doc. 12)
The petition will be denied on the merits.

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Summary of the Case

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On December 20, 2011, staff at the U.S. Penitentiary in Tucson reviewed a letter Kincer

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sent to his mother. (Doc. 14, p. 4) That letter read, in relevant part, as follows:
I am sending you this list of names and addresses, and when you get it, keep it in
your purse, or close by. Then, if I send you a letter in someone elses [sic] name,
with a number written in the middle of the label, that means send it to whoever
[sic] that number is on the paper. Do you see what I am saying?

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(Doc. 14-4, p. 5) Staff determined that Kincer was trying to “circumvent mail monitoring

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procedures” by having his mother forward mail from Kincer to unknown individuals. (Doc. 14,

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p. 4) Kincer was subsequently charged with “Use of mail for abuses other than criminal activity

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which circumvent mail monitoring procedures.” (Doc. 14, p. 4)

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On March 29, 2012, the Discipline Hearing Officer upheld the charge and sanctioned

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Kincer with, among other things, the forfeiture of 47 days of Good Conduct Time. (Doc. 14, p.

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5) Kincer appealed to both the Western Regional Office and the General Counsel, but neither

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appeal was successful. (Doc. 14, pp. 5-6)

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Kincer now appeals to this court, arguing that the BOP wrongfully sanctioned him. (Doc.

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1, p. 4) Kincer maintains the list referenced in the letter contained the addresses of his

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attorneys. Id. He further states the purpose of his scheme was to allow his mother to forward

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correspondence and to attach documents that she could possess, but he could not. Id. He asks

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this court to expunge the incident report and restore his Good Conduct Time. (Doc. 1, p. 9)

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The respondent argues that Kincer failed to exhaust his administrative appeals and that

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this petition must be dismissed as a result. Assuming without deciding that Kincer adequately

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exhausted his administrative remedies, this court finds the petition should be denied on the

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merits.

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Discussion

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Federal prisoners have a statutory right to good time credits. See 18 U.S.C. § 3624.

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Accordingly, they have a due process interest in the disciplinary proceedings that may take

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away those credits. Wolff v. McDonnell, 418 U.S. 539, 556-57 (1974).

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The final decision to revoke good time credits must be based on “some evidence.”

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Superintendent, Massachusetts Correctional Instn., Walpole v. Hill, 472 U.S. 445, 455 (1985).

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“The relevant question is whether there is any evidence in the record that could support the

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conclusion reached by the disciplinary board.”

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satisfied. Id. The court need not examine the entire record, independently assess the credibility

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of the witnesses, or weigh the evidence. Id. at 455.
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Id. at 455-56. If so, then due process is

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Code 296 of 28 C.F.R. § 541.3 prohibits the “[u]se of the mail for abuses other than

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criminal activity which circumvent mail monitoring procedures.” Such activity includes

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“directing others to send, sending, or receiving a letter or mail through unauthorized means.”

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Id.

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Here, Kincer sent mail to his mother with instructions for forwarding correspondence to

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third persons. Kincer argues the letter was strictly legal mail, but he failed to properly mark it

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as such. (Doc. 14-4, p. 4) Consequently, there was “some evidence” supporting the BOP’s

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conclusion that Kincer was circumventing mail monitoring procedures. The BOP’s decision

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in this case did not violate due process. Accordingly,

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IT IS ORDERED that the Petition for Writ of Habeas Corpus pursuant to Title 28, United

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States Code, Section 2241, filed on June 19, 2013 by Kelly Lynn Kincer is DENIED. (Doc. 1)

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The Clerk is directed to prepare a judgment and close this case.

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DATED this 25th day of August, 2014.

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