Howell v. Outlaw
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)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
ROBERT NELSON HOWELL, JR.
Reg. # 09232-026
T.C. OUTLAW, Warden,
FCI Forrest City
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.
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