Lee v. Lake

Filing 10

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that the District Court enter an order denying the 1 Petition on the merits. Any party may serve and file written objections within 14 days of being served with a copy of this Report and Re commendation. If objections are not timely filed, they may be deemed waived. The Local Rules permit a response to an objection. They do not permit a reply to a response. The Clerk is directed to send a copy of this Report and Recommendation to the petitioner and the respondent. Signed by Magistrate Judge Leslie A Bowman on 5/26/15.(BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tracy Damon Lee,
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Petitioner,
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vs.
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S. Lake, Warden,
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Respondent.
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No. CV 15-039-TUC-DCB (LAB)
REPORT AND RECOMMENDATION

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On January 26, 2015, Tracy Damon Lee, an inmate confined in the Federal Correctional

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Institution in Safford, AZ, filed a Petition for Writ of Habeas Corpus pursuant to Title 28,

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United States Code, Section 2241. (Doc. 1) Lee claims the BOP improperly sanctioned him

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with the loss of 54 days of good conduct time after he was found in possession of contraband.

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Id.

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The respondent, Warden S. Lake, filed an answer opposing the petition on April 7, 2015.
(Doc. 9) Lee did not file a reply.

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Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate

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Judge Bowman for Report and Recommendation. The petition should be denied on the merits.

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Summary of the Case

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Lee is currently incarcerated at the Federal Correctional Institution in Safford, Arizona.

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(Doc. 9-2, ¶ 3) At the time of the disciplinary incident at issue here, he was an inmate in the

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Special Housing Unit in Lompoc, California. Id., ¶ 4

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On September 22, 2009, a correctional officer found in Lee’s cell “six razor blades and

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three pieces of metal approximately one and one-half inches long, sharpened to a point, with

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one melted to a toothbrush in the form of a lock-picking device.” (Doc. 9-2, ¶ 4) An incident

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report was prepared charging Lee with Possession of a Weapon, a Code 104 prohibited act, and

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Possession of a Lock Picking Device, a Code 208 prohibited act. Id.

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The incident report was delivered to Lee and investigated. (Doc. 9-2, ¶ 5) Lee admitted

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that the items were his, but he argued they were not weapons, just tools he used to fix radios and

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headphones. (Doc. 9-2, ¶ 5); (Doc. 9-3, p. 6)

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The Discipline Hearing Officer (DHO) found Lee guilty of Code 108, possession of a

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hazardous tool, and Code 208, possession of a lock picking device. (Doc. 9-2, ¶ 5) He states

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in his affidavit that he intended to sanction Lee with the loss of 27 days of good conduct time

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for each offense, a total of 54 days. (Doc. 9-2, ¶ 6) The original DHO report, however, gave

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the sanction as 34 days. (Doc. 9-2, ¶ 7) The DHO states this was a typographical error. (Doc.

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9-2, ¶ 7)

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Lee administratively appealed the disciplinary action on due process grounds, but his

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appeal was denied. (Doc. 9-2, ¶ 7) During the review process, the DHO sent a corrected1 copy

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of his report to Lee on June 3, 2011. Id.

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Lee then administratively appealed the sentence itself, the 54 days. His appeal was

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denied after the Warden contacted the DHO, who explained that the “34” in the original report

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was a typographical error. (Doc. 9-2, ¶ 8) Lee’s final Central Office Administrative Remedy

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Appeal was denied on November 6, 2014.

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Previously, on January 6, 2014, Lee filed in this court his first petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2241. In his amended petition, filed on March 26, 2014, he

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The court notes that the “corrected” copy is not a model of clarity. (Doc. 9-3, pp. 44-45) The
report lists Lee’s offenses and the sanction imposed for each offense, but it does not clearly indicate
that each offense was punished with a sanction of 27 days. The report has a “27” placed next to the
stated offense, “Code 108,” but it has a blank next to the stated offense,“Code 207 [sic].” Id. The
missing “27” appears at the bottom of the previous page. Id. “Code 207” prohibits “wearing a disguise
or a mask.” 28 C.F.R. 541.13. It is apparently another typographical error.
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argued his procedural due process rights were violated because his disciplinary hearing was held

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three days later than it should have been according to BOP regulations. CV 14-136-TUC-LAB,

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(Doc. 5) The respondent filed an answer on May 29, 2014. Id., (Doc. 10) This court denied

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the petition on the merits on December 3, 2014. Id., (Doc. 20)

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On January 26, 2015, Lee filed the pending petition for writ of habeas corpus pursuant

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to 28 U.S.C. § 2241. (Doc. 1) Lee again challenges the BOP’s handling of this disciplinary

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incident. Now, he claims the BOP improperly sanctioned him with the loss of 54 days of good

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conduct time. Id. Lee maintains the DHO intended to sanction him with the loss of only 34

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days because the DHO believed the contraband items were tools, not weapons. Id. He further

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argues that according to the “amended” report, he was sanctioned with a loss of 27 days for the

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Code 108 offense and a loss of zero days for the Code 207 [sic] offense. Id.

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The respondent filed an answer on April 7, 2015 arguing the petition should be dismissed

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as an abuse of the writ or, in the alternative, denied on the merits. The court finds that the

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petition should be denied on the merits. The court expresses no opinion on the respondent’s

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alternative arguments.

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Discussion

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Lee claims the BOP erroneously sanctioned him with the loss of 54 days of good time

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credit. He argues the DHO intended to sanction him with the loss of only 34 days, as stated in

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the original disciplinary report, because he accepted Lee’s explanation that the contraband items

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were tools and not weapons. In the alternative, Lee argues the DHO intended to sanction him

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with the loss of only 27 days because that is what the amended report seems to indicate. On that

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report there is a “27” placed in line with the stated offense, “Code 108,” but there is a blank in

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line with the stated offense,“Code 207 [sic].” (Doc. 9-3, pp. 44-45)

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The court agrees that the amended disciplinary report is not a model of clarity. However,

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the court finds that the BOP was correct in imposing a total sanction of 54 days of good time

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credit for violating Code 108, possession of a hazardous tool, and Code 208, possession of a

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lock picking device. (Doc. 9-2, ¶ 5) That is the sanction that the DHO intended to impose. He
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says as much in his affidavit. (Doc. 9-2, ¶ 6) Lee concedes that the DHO had the authority to

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impose a sanction of that size.

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RECOMMENDATION

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The Magistrate Judge recommends that the District Court, after its independent review

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of the record, enter an order denying the petition on the merits.

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Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within

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14 days of being served with a copy of this Report and Recommendation. If objections are not

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timely filed, they may be deemed waived. The Local Rules permit a response to an objection.

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They do not permit a reply to a response.
The Clerk is directed to send a copy of this Report and Recommendation to the petitioner
and the respondent.

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DATED this 26th day of May, 2015.

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