Howell v. Outlaw

Filing 13

ORDER re 11 REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Robert Nelson Howell, Jr. The Court declines the report and recommendation and returns the case to Judge Deere for further consideration. Signed by Judge D. P. Marshall Jr. on 12/4/12. (kpr)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS EASTERN DIVISION ROBERT NELSON HOWELL, JR. Reg. # 09232-026 v. PETITIONER No. 2:12-cv-87-DPM-BD T.C. OUTLAW, Warden, FCI Forrest City RESPONDENT ORDER Magistrate Judge Beth Deere has recommended that Howell's petition for a writ of habeas corpus be dismissed for failure to make out a due process violation that would justify any relief. Document No. 11. Judge Deere ably addressed the facts set out in Howell's petition. But Howell has expanded those facts in a timely objection. Document No. 12. Howell now says that Hodges participated substantially in the decision to refer him for disciplinary charges, then presided over the hearing that imposed sanctions. Howell points to a Third Circuit case that holds such a conflict would violate due process. Meyers v. Alldredge, 492 F.2d 296 (3d Cir. 1974). Eighth Circuit precedent appears to be the same. Jensen v. Satran, 651 F.2d 605, 607 (8th Cir. 1981) (remanding to determine, in part, whether disciplinary board included a prison official who submitted petitioner's incident report); compare Ivy v. Moore, 31 F.3d 634, 635 (8th Cir. 1994) (hearing officer's independent investigation did not violate due process because it "was not done to prepare for prosecution of the charge[.]"). In the circumstances the Court declines the recommendation, Document No. 11, and returns the case to Judge Deere to consider this wrinkle. So Ordered. -2-

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