Dailey v. Oliver

Filing 33

ORDER Denying 7 Application for Writ of Habeas Corpus. ORDERED that the Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 7 is DENIED and this case is DISMISSED with prejudice. It is FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied for the purpose of appeal, by Magistrate Judge Kathleen M. Tafoya on 10/21/14. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 13-cv-03322-KMT
MICHAEL DAILEY,
Applicant,
v.
WARDEN OLIVER,
Respondent.

ORDER DENYING APPLICATION FOR A WRIT OF HABEAS CORPUS

This matter comes before the Court on the Amended Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 7), filed by Applicant Michael
Dailey pro se. The parties have consented to disposition of this case by a United States
Magistrate Judge. (ECF Nos. 29, 31).
The Court will construe the Amended Application liberally because Mr. Dailey is
not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972);
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). However, the Court does not act
as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons
discussed below, the Amended Application will be denied and this action dismissed.
I.

Background
Mr. Dailey is a federal prisoner incarcerated at the United States Penitentiary in

Florence, Colorado. In the Amended Application, he challenges the constitutionality of
two prison disciplinary proceedings that resulted in the forfeiture of vested good time

credits.
A.

Incident Report 2214975

On September 27, 2011, Mr. Dailey received Incident Report No. 2214975 for
possession of narcotics (attempted) (offense code 113a).1 (ECF No. 27-1, Declaration
of Carl Miedich, at ¶ 5; see also id., attach. 2, at 11). The incident report stated, in
pertinent part:
During an ongoing S.I.S. Investigation on September 26, 2011 at
approximately 11:00 a.m., it determined on July 1, 2011, at approximately
12:29 p.m., inmates Michael Dailey, Reg. No. 06819-025, and inmate
[blacked out name] reported to the Inmate Systems Management Mail
Room and picked up certified mail. Inmate Dailey signed for the
possession of books therefore retained ownership of the incoming books.
Contraband was discovered inside the binder of the books. The Marijuana
(THC) was wrapped inside of a plastic bag of the binders of the books.
The T.H.C. was tested and weighed 8.8 grams.
(ECF No. 27-1, attach 2, at 14; see also id. at 19).
A hearing before a DHO was held on November 4, 2011. (ECF No. 27-1,
Miedich Decl, at ¶ 6; see also id. attach. 2, at 11). Mr. Dailey declined a staff
representative. (ECF No. 27-1, at 11). Mr. Dailey requested that Unit Secretary Weise
be called as a witness, but the DHO determined that Weise’s proffered testimony – that
he called Mr. Dailey to the mail room to find out what type of mail he had – was
irrelevant to the charged offense. (Id. at 11, 12, 18). At the hearing, Mr. Dailey “claimed
ownership of the books, but denied any knowledge of marijuana.” (Id. at 12).
On January 17, 2012, the DHO issued a written report finding that Mr. Dailey was
guilty of attempted possession of narcotics and sanctioned him with, inter alia, 41 days

1

The offense code refers to its designation in 28 C.F.R. § 541.3 (Table 1). An “a” added after an
offense code means that the offense was attempted.

2

of forfeited good time credits. (ECF No. 27-1, Miedich Decl., at ¶ 6; see also id., attach.
2, at 12).
Mr. Dailey filed an administrative appeal challenging the disciplinary proceeding.
In the appeal, Mr. Dailey claimed that he was innocent of the charged offense and that
he was not sanctioned in the presence of the DHO. (ECF No. 27-2, attach. 3, at 8-10).
The Regional Director reviewed Mr. Dailey’s appeal and found a “procedural error.” (Id.
at 8). The incident report was returned to the DHO for reconsideration. (Id.). In a
separate internal Memorandum to the Warden, the Regional Director explained that the
DHO “did not introduce or consider the supporting documentation with the discipline
packet. This documentation is necessary to uphold the charge, as it connects the
inmate to the incident.” (Id. at 39). The Regional Director further instructed that “[t]he
DHO must specifically explain why the greater weight of the evidence showed the
inmate committed the prohibited act.” (Id.).
The DHO held a rehearing on Incident Report No. 2214975 on April 6, 2012.
(ECF No. 27-1, Miedich Decl., at ¶ 7; No. 27-2, attach. 3, at 1). Mr. Dailey did not
request a staff representative or witnesses. (ECF No. 27-2, attach. 3, at 1). Mr. Dailey
made the following statement in his own defense at the hearing: “I did sign for the
books, but I was unaware of drugs in them. I told staff that I was unaware of getting
books in. I did take the books into the facility.” (Id.).
On August 14, 2012, the DHO issued a written report finding that Applicant had
committed the charged offense. (ECF No. 27-1, Miedich Decl., at ¶ 9; No. 27-2, attach.
3, at 2). The DHO stated in the report that he relied on the following evidence to
support his conclusion:
3

section # 11 of the incident report, the evidence collected by SIS
concluding that you were paid (vis family to family which is a common
practice among inmates), eight photographs of the drugs and packaging of
the items received, your willingness to sign the receipt log for the items
and accept these books that you claim you didn’t order (which does not
make reasonable sense), and that another was with you at the time that
had received previous documentation of date of delivery and escorted you
to the pick-up at the mail-room (which a reasonable person would believe
would be highly unlikely unless it was to retrieve the items inside the
books from you). . . .
(ECF No. 27-2, attach. 3, at 3; see also id. at 19-38). The DHO also emphasized that
Mr. Dailey had changed his story throughout the disciplinary process. (Id. at 3). Mr.
Dailey was sanctioned with, inter alia, the forfeiture of 41 days of vested good time
credits. (Id.).
B.

Incident Report 2272977

On March 5, 2012, Mr. Dailey received Incident Report No. 2272977 for
possession of a weapon (offense code 104), destroying or disposing of any item during
a search or an attempted search (offense code 115a) and conduct which disrupts the
orderly running of institution (offense code 199) (removed). (ECF No. 27-1, Miedich
Decl., at ¶ 5; see also No. 27-3, attach. 4, at 1). The Incident Report stated, in pertinent
part:
At approximately 9:25 AM [on 2/25/12], I, Senior Officer S. Williams,
observed inmate Dailey, Michael Reg. No. 06819-025 pass through the
metal detector setting it off in Echo-Alpha Unit. I ordered inmate Dailey to
stop three times and he refused and continued into the Unit. I attempted
to follow inmate Dailey when inmate [ ], stepped in front of me to block me
from inmate Dailey and pointing at my watch and stated, “what’s this!” I
walked around inmate [ ] and followed inmate Dailey to cell 130 w[h]ere he
appeared to be using the toilet. I advised inmate Dailey to exit the cell and
the cell was secured. I advised inmate Dailey to clear the metal detector
which he did. I conducted a cell search of cell 130 and found under the
top bunk mattress a piece of metal 8 1/2 inches in length and 1 1/4 inches
wide sharpened to a point. The homemade weapon had string wrapped
4

around it for a handle. Cell 130 is occupied by inmate [ ] and inmate [ ].
Inmates Dailey and [ ] were escorted to the Lieutenants holding cell.
Operations Lieutenant was notified.
(ECF No. 27-3, attach. 4, at 4).
A hearing before a DHO was held on March 16, 2012. (Miedich Decl, at ¶ 14;
ECF No. 27-3, attach. 4, at 1). Mr. Dailey declined to have a staff representative and
did not request or present any witnesses. (ECF No. 27-3, attach. 4, at 1, 9). Mr. Dailey
admitted his guilt with the following statement: “I’m guilty. Reeves had nothing to do
with it.” (Id. at 1.)
On July 6, 2012, the DHO issued a written report finding that Mr. Dailey was
guilty of the prohibited acts of possession of a weapon (104) and destroying or
disposing of any item during a search or an attempted search (115a). (Id. at 2; see also
Miedich Decl., at ¶ 16). The DHO relied on the Incident Report and a photograph of the
items found in Mr. Dailey’s room (see ECF No. 27-3, attach. 4, at 11), to support the
disciplinary convictions. (Id.). Mr. Dailey was sanctioned with, inter alia, the forfeiture of
41 days of vested good time credits. (Id.; see also Miedich Decl., at ¶ 17).
In response to an administrative appeal, the DHO report was amended on
January 9, 2014 to reflect that Mr. Daily was guilty of destroying or disposing of any item
during a search or attempted search (offense code 115) instead of attempting to do so
(offense code 115a) as stated in the original DHO hearing report. (Miedich Decl, at ¶¶
18-20; ECF No. 27-3, attach. 4, at 15).

II.

Legal Standard
A section 2241 habeas proceeding is “an attack by a person in custody upon the
5

legality of that custody, and . . . the traditional function of the writ is to secure release
from illegal custody.” McIntosh v. U.S. Parole Common, 115 F.3d 809, 811 (10th
Cir.1997) (quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). A § 2241 petition
may challenge the deprivation of good-time credits and other prison disciplinary matters
where the challenged action affects duration of the inmate’s sentence. Id. at 811-12.
“It is well settled ‘that an inmate's liberty interest in his earned good time credits
cannot be denied without the minimal safeguards afforded by the Due Process Clause
of the Fourteenth Amendment.’” Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 811
(10th Cir. 2007) (applying law to federal prisoner) (quoting Mitchell v. Maynard, 80 F.3d
1433, 1444 (10th Cir.1996) (internal quotation marks and citation omitted)). However,
“[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full
panoply of rights due a defendant in such proceedings does not apply.” Wolff v.
McDonnell, 418 U.S. 539, 556 (1974).
Where a prison disciplinary hearing may result in the loss of good time
credits, . . . the inmate must receive: (1) advance written notice of the
disciplinary charges; (2) an opportunity, when consistent with institutional
safety and correctional goals, to call witnesses and present documentary
evidence in his defense; and (3) a written statement by the factfinder of
the evidence relied on and the reasons for the disciplinary action.
Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454 (1985) (citing Wolff, 418
U.S. at 563-67). Mr. Dailey does not dispute that these requirements were met.
Instead, Mr. Dailey asserts that there was insufficient evidence to support the
disciplinary convictions.
To comport with due process, there must be some evidence to support a
disciplinary conviction. Hill, 472 U.S. at 454. “Ascertaining whether this standard is

6

satisfied does not require examination of the credibility of witnesses, or weighing of the
evidence. Instead, the relevant question is whether there is any evidence in the record
that could support the conclusion reached by the disciplinary board.” Id. at 455-56. A
disciplinary board’s decision can be upheld by a reviewing court “even if the evidence
supporting the decision is ‘meager.’” Mitchell, 80 F.3d at 1445 (10th Cir. 1996) (quoting
Hill, 472 U.S. at 457).
III.

Analysis
A.

Incident Report 2214975

In concluding that Mr. Dailey was guilty of attempted possession of narcotics, the
DHO considered the reporting officer’s statements that Mr. Dailey went to the mail room
on July 1, 2011, signed for books that were sent to him via certified mail, and that eight
grams of marijuana were discovered inside the binders of the books. The DHO also
relied on the photographs of the marijuana found in the books, as well as the SIS
investigation which revealed that Applicant was with another inmate at the time he
received documentation concerning the delivery of the books and that the same inmate
accompanied Applicant to pick up the books. The Court finds that the information relied
on by the DHO, together with the presumption of constructive possession, constituted
“some evidence” to support the disciplinary conviction for attempted possession of
narcotics.
“In general, a person has constructive possession if he knowingly has ownership,
dominion, or control over the contraband itself or over the premises in which the
contraband is located.” See United States v. McKnight, 953 F.2d 898, 901 (5th
Cir.1992); see also Hamilton v. O’Leary, 976 F.2d 341, 345 (7th Cir. 1992) (concluding
7

that incident report together with constructive possession rule provided “some evidence”
of prisoner’s guilt). The Tenth Circuit has expressly condoned the constructive
possession doctrine to support a prison disciplinary conviction. See Howard, 487 F.3d
at 812 (citing Hamilton, 976 F.2d at 345) (concluding that where incident report
indicated that contraband was found among the petitioner’s legal papers confiscated
during the time of his detention, there was “some evidence” to support the disciplinary
sentence on a theory of constructive possession.). The constructive possession rule
applies “absent exculpatory evidence that makes the finding of petitioner’s ‘possession’
so unreliable as to not satisfy the minimum constitutional standard that some reliable
evidence supports the disciplinary decision.” Thompson v. Hawk, 978 F. Supp. 1421,
1423 (D. Kan. 1997).
Mr. Dailey maintains in the Amended Application that he does not know who
sent him the books from a New York bookstore via certified mail, and, therefore, he was
not aware that marijuana was concealed inside the books. (ECF No. 7, at 3). However,
the DHO specifically found that the statements made by Mr. Dailey at the rehearing
were not credible because he had changed his story several times. A federal habeas
court does not review the DHO’s credibility determinations. See Hill, 472 U.S. at 45556.
The Court finds that Mr. Dailey’s due process rights were not violated in the
prison disciplinary hearing because there was some evidence to support the DHO’s
decision that resulted in the forfeiture of good time credits.
B. Incident Report 2272977
Mr. Dailey asserts that the evidence did not support his disciplinary convictions
8

for possession of a weapon and destroying or disposing of the same during a search of
attempted search. He maintains that he “had to take the hit” because he was in another
inmate’s cell using the bathroom when prison officials searched that cell and found a
knife. (ECF No. 7, at 3).
Even if the Court ignores Mr. Dailey’s admission of guilt at the DHO hearing, the
correctional officer’s report of the incident, together with the constructive possession
rule, constitute some evidence to support the disciplinary convictions. Mr. Dailey set off
the metal detector en route to the cell where the weapon was found, but did not set it off
after he left the cell. Further, Mr. Dailey was the only inmate in the cell at the time the
weapon was discovered. These facts support a presumption of constructive
possession. See Hamilton, 976 F.2d at 345 (“The proposition that constructive
possession provides ‘some evidence’ of guilt when contraband is found where only a
few inmates have access is unproblematical”). see also Hill, 472 U.S. at 456-57 (three
inmates seen fleeing from the scene of an assault); Mason v. Sargent, 898 F.2d 679,
680 (8th Cir. 1990) (contraband found in locker shared by two inmates); Simon v.
Jones, 550 F. App’x 670, 671 (10th Cir. 2014) (unpublished) (disciplinary conviction was
supported by some evidence where prison officials made the logical inference that the
contraband (a cell phone and marijuana) belonged to the petitioner where petitioner was
the only inmate in the bathroom where the contraband was discovered).
The Court finds that Mr. Dailey’s due process rights were not violated in the
prison disciplinary hearing for Incident Report 2272977 because there was some
evidence to support the DHO’s decision that resulted in the forfeiture of good time
credits.
9

Accordingly, it is ORDERED that the Amended Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 7) is DENIED and this case is
DISMISSED with prejudice. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied for the purpose of appeal. The Court certifies pursuant to 28 U.S.C.
§ 1915(a)(3) that any appeal from this order would not be taken in good faith. See
Coppedge v. United States, 369 U.S. 438 (1962). If Mr. Dailey files a notice of appeal
he must also pay the full $505 appellate filing fee or file a motion to proceed in forma
pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in
accordance with Fed. R. App. P. 24.
Dated this 21st day of October, 2014.

10