Foote v. Cozza Rhodes

Filing 37

ORDER by Magistrate Judge Nina Y. Wang on 5/17/17, DENYING 1 Application for Writ of Habeas Corpus, filed by Stanley Foote. This case is dismissed with prejudice. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-2705-NYW
STANLEY FOOTE,
Applicant,
v.
T.K. RHODES-COZZA, USP Florence,
Respondent.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

This matter comes before the court on the Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (the “Application”) [# 1], filed pro se on December 14, 2015, by
Applicant, Stanley Foote. On April 22, 2016, Respondent filed a Response to the Application
(the “Response”) [#19]. On May 27, 2016, Mr. Foote filed a Reply (the “Reply”) [#23]. On
October 14, 2016, Mr. Foote filed a “Motion Requesting Permission or Leave of the court to
Supplement Pleadings of 28 U.S.C.S. 2241 and Said Supplements in the Interest of Judicial
Economics, Pro Se” (the “Motion to Supplement”) [#25], which was stricken without prejudice
by the court on November 3, 2016 [#27]. On December 22, 2016, Mr. Foote filed a “Motion to
Reconsider Facts, Take Judicial Notice of Exhibits from Document #25, and Request for
Appointment of Counsel” (the “Motion to Reconsider”) [#29]. On January 3, 2017, the court
granted the motion to reconsider in part and denied it in part. [#30]. Mr. Foote’s request that the
court reconsider its Minute Order [#27] and his request for appointment of counsel were denied.
However, to the extent Mr. Foote was seeking to amend his habeas application, the court granted
the request and directed Mr. Foote to file an amended habeas corpus application no later than

February 1, 2017. Applicant failed to file an amended habeas application within the time
allowed.
On February 12, 2017, the court issued a Minute Order directing the Respondent to file
exhibits, which were referenced in its Response in a Declaration from Mark Renda [#19-1], but
were not attached. [#35]. In addition, the court stated that because there was additional time
permitted to Respondent, the court would consider Applicant’s supplement information provided
in [#25] and Respondent could file a response to the supplement information by March 6, 2017.
On March 6, 2017, Respondent filed a “Response [to the court’s Minute Order],” (the “Response
to Motion to Supplement”) [#36], which included a response to Applicant’s supplement
information. Respondent also attached the missing exhibits. (“Respondent’s Exhibits”), [#36-2,
#36-3].
After reviewing the pertinent portions of the record in this case, including the
Application, the Response, the Reply, the Motion to Supplement, the Response to Motion to
Supplement, and the Respondent’s Exhibits, the court respectfully concludes that the Application
should be denied.
RELEVANT FACTUAL AND PROCEDURAL HISTORY
Mr. Foote is a federal prisoner, currently in the custody of the United States Bureau of
Prisons (“BOP”) at the McCreary United States Penitentiary in Pine Knot, Kentucky. While he
was incarcerated at the United States Penitentiary in Florence, Colorado, Mr. Foote filed this
action challenging the validity of a prison disciplinary conviction he incurred while he was
incarcerated at the United States Penitentiary in Canaan, Pennsylvania (“USP Canaan”).
Specifically, on April 22, 2014, Applicant received an incident report for “attempted introduction
of drugs” (Code 111A) and “use of a telephone to further criminal activity” (Code 197). See [#

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36-3 at 1]. On April 23, 2014, Applicant was issued a copy of Incident Report No 2574624.
[Id.] On April 25, 2014, Applicant was provided a copy of the Notice of Discipline Hearing
before the DHO and a written notice of his rights before the DHO. [Id. at 113-17]. The Unit
Disciplinary Committee provided Applicant the opportunity to make a statement and he stated,
“Nobody spoke my name in any of these phone conversations.”

[Id. at 113].

Applicant

requested staff representation but declined to have witnesses. [Id. at 114]. On May 2, 2014,
Discipline Hearing Officer Mark Renda (“DHO Renda”) conducted a DHO hearing in regard to
the above incident report. [Id. at 1]. Applicant’s staff representative reviewed all available
documentation regarding the incident and listened to the phone call. [Id.]. She also met with
Applicant prior to the DHO hearing. [Id.]. She noted no discrepancies in the discipline process.
[Id.]. At the DHO hearing, Applicant made the following statement: “I’m trying to figure out
how I got caught up in this. Nobody mentioned my name. Some of the stuff wasn’t said. They
switched the words around. Nothing I said was pointing to introduction.” [Id. at 2]. Applicant
provided no documentary evidence. [Id.]. The DHO found that Mr. Foote committed the
prohibited acts based on numerous transcribed telephone calls and email message reports for Mr.
Foote as well as his alleged co-conspirators. [Id. at 68].
Specifically, the DHO report states that it relied on the account of the reporting staff
member, who provided information regarding numerous telephone calls by several inmates,
which used coded/veiled language to discuss introducing drugs into the prison. [#36-2 at 4].
The following is some information that was provided specifically about Mr. Foote:
On November 18, 2013, at 5:10 p.m., inmate Foote placed a
telephone call to 551-497-2209, and spoke to Beyah. During the
call, Beyah used coded/veiled language to tell inmate Foote about
his plan with inmate Edwards to introduce heroin during social
visits with Shavon Thomas. Beyah indicated that Shavon Thomas
would pick up him [sic] so he could supply her with heroin. Beyah
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then indicated he would be sending drugs for him, inmate Johnson,
and inmate Hargrove and that he was fronting the money for the
heroin in return for inmate Edwards paying him $1000.00 after the
drugs were sold. Beyah then asked inmate Foote to tell inmates
Johnson and Hargrove to call him so he can let them know about
the heroin he is sending for them via inmate Edwards. Inmate
Foote indicated that he would tell them to call him. The pertinent
parts of the call are transcribed below.
BEYAH

FOOTE
BEYAH

FOOTE
BEYAH:

FOOTE:
BEYAH:
FOOTE:
BEYAH:

FOOTE:
BEYAH:

FOOTE:
BEYAH:

FOOTE:
BEYAH:

FOOTE:
BEYAH:

But you, uh this week and shit, uh, my man’s girl
(Shavon Thomas) and shit supposed to be coming
through and shit, you know what I’m saying.
Yeah.
So you know what I mean, like I don’t know man.
She’s supposed to be coming through and shit to put
up some books for him and shit. Know what I’m
saying, I told them ya’ll read them and shit. You
feel me?
Yeah.
Tyson (inmate Edwards) girl and shit supposed to be
coming through, I don’t know this week, he said to
pick up them books and shit, if anything just holler at
him and shit. You know what I’m saying, just call
me back Friday and shit I’ll let you know, you know
what I’m saying whatever, whatever, you feel me?
Who’s girl you said?
Tyson.
Alright, yeah.
Yeah, she supposed to be come get me so I can go
down there get some books (heroin) and shit like that
and shit.
yeah.
I told him that to holler at, I told him to make sure
that you, uh, you, Tank, and uh, uh, uh, uh, uh Sheed
get to read them and shit. You hear me?
Yeah.
She’s supposed to coming through and whatever and
shit like I’m a go ahead and kick out like that and he,
you know what I mean?
Yeah.
But let Tank and them niggas know, like I’m just,
word is bond that nigga gonna give me a dollar
Murda. You hear me my nigga?
Yeah.
Word is bond to Allah, nigga gonna give me a dollar
my nigga.
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FOOTE:
BEYAH:
FOOTE:
BEYAH:
...
BEYAH:
FOOTE:
BEYAH:

FOOTE:
BEYAH:
FOOTE:
BEYAH:
FOOTE:
BEYAH:

FOOTE:

That’s crazy man.
A dollar, you hear man?
Yeah
A dollar dog.
But uh, yeah man. I’m just give me about another
week, you hear me Murda?
Yeah.
If she comes down and goes barging over with me,
though those books will be coming this weekend
though, or not this weekend, you know next week
sometime though. You heard me.
Where she coming from the city?
No, ATL (Atlanta, Georgia)
Oh alright.
You heard?
Yeah.
So tell Sheed and Tank, and shit that the books
probably be, just make sure ya’ll call me Friday, so I
can just let ya’ll know.
Yeah, I got you.

[Doc. # 36-2 at 43-45].
Following the DHO hearing, the DHO concluded that there was sufficient evidence to
support the charges. [Id. at 68]. For his Code 111A violation, Mr. Foote was sanctioned with
the loss of forty days of good conduct time, 90 days disciplinary segregation, three months
Impound Property (excluding religious and legal material), two years loss of commissary
(suspended pending 180 days clear conduct), two years loss of email, three years loss of
telephone privileges, three years loss of visiting privileges followed by three years non-contact
and immediate family only visiting. [Id. at 69]. For his Code 197 violation, Mr. Foote was
sanctioned with 40 days loss of good conduct time, 200 days forfeiture of non-vested good
conduct time, two years loss of email (to be served concurrent to code 111A), three years loss of
telephone privileges (to be served concurrent to code 111A), three years loss of visiting
privileges followed by three years non-contact and immediate family only visiting (to be served
concurrent to code 111A). [Id.].

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On May 19, 2014, Applicant was provided with a copy of the DHO’s written findings
and conclusions. [Id. at 70]. Mr. Foote appealed the Incident Report. According to Mr. Foote,
on July 3, 2014, Regional Director J.L. Norwood remanded the incident report for further action,
stating, “your appeal revealed questions concerning the disciplinary hearing record and process.”
[#1 at 4]. Mr. Foote argues that the warden informed him that the incident report would be
“reheard” by DHO. [Id. at 3].
On December 14, 2015, Mr. Foote filed the instant habeas action asserting one claim of
violation of his due process rights. [#1]. According to Applicant, as of the date he filed his
habeas application, no further action had been taken on his case and his privileges had not been
restored. For relief, he seeks expungement of his disciplinary conviction and restoration of his
good-time credit. [Id. at 6].
Subsequent to the filing of the habeas action, DHO Renda stated that the North Central
Regional Office conducted an audit of the discipline packet. During the review of Incident
Report No. 2574624, it determined that charging and sanctioning Applicant with both
disciplinary code violations was considered stacking the charges because the same evidence was
used to support both codes. [#19-1 at 5]. Therefore, on January 21, 2016, an amended DHO
report was issued. [#36-1 at 68]. The Code 197 violation (Use of the Telephone to Further
Criminal Activity) was removed, along with the associated sanctions. [Id.]. Applicant was
issued a copy of the amended DHO report on January 26, 2016. [Id. at 70].
On October 14, 2016, Applicant filed a Motion to Supplement, arguing that he was
entitled to a rehearing in U.S.P. Florence on the original incident report, that the DHO
improperly amended its report and that there was “no evidence whatsoever” of a Code 111
violation in the original hearing. [#25-2 at 7]. In the Motion to Supplement, Mr. Foote also
states that he has now exhausted all administrative remedies for a second time. [Id. at 3].
STANDARD OF REVIEW
The court must construe Mr. Foote’s filings liberally because he is not represented by an
attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Hall v. Bellmon, 935
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F.2d 1106, 1110 (10th Cir. 1991). However, the court should not be an advocate for a pro se
litigant. See Hall, 935 F.2d at 1110.
An application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 “is an attack by a
person in custody upon the legality of that custody, and . . . the traditional function of the writ is
to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973); see also
McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997). Habeas corpus relief is
warranted only if Mr. Foote “is in custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2241(c)(3).
ANALYSIS
The Fifth Amendment protects federal prisoners against the deprivation of liberty or
property without due process of law. To plead a due process claim sufficiently, Mr. Foote must
allege facts showing: 1) that he was deprived of a liberty or property interest and 2) that the
procedures required prior to such a deprivation were not properly observed. Wilkinson v. Austin,
545 U.S. 209, 221 (2005) (“those who seek to invoke [the due process clause’s] procedural
protection must establish that one of these interests is at stake”).
In Wolff v. McDonnell, 418 U.S. 539, 555-57 (1974), the Supreme Court held that
prisoners have a liberty interest in receiving good time credits that cannot be deprived in a prison
disciplinary proceeding without procedural due process protections. Notwithstanding, the Court
held that prison 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, 418 U.S. at 556.
If a protected liberty interest is implicated, procedural due process requires that a prison inmate
facing disciplinary charges be provided: 1) the right to appear before an impartial decisionmaking body, 2) twenty-four hour advance written notice of the charges, 3) an opportunity to call
witnesses and present documentary evidence, provided the presentation of such does not threaten
institutional security or correctional goals, 4) assistance from an inmate representative, if the
charged inmate is illiterate or if the complexity of the issue makes it unlikely that the inmate will
be able to collect and present the evidence necessary for an adequate comprehension of the case,
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and 5) a written decision by the fact finders as to the evidence relied upon and the rationale
behind their disciplinary action. Id. at 563-71. In addition, procedural due process requires that
“the findings of the prison disciplinary board are supported by some evidence in the record.”
Superintendent v. Hill, 472 U.S. 445, 454 (1985) (internal citation and quotation marks omitted).
In the instant case, the court finds that Applicant was afforded each of the due process
protections required by Wolff in connection with the disciplinary proceeding at issue in this
action. Specifically, he received the opportunity to appear before a DHO, he was provided with
written notice of the charges against him, and a copy of his rights and notice of the disciplinary
hearing were delivered to him more than twenty-four hours before his hearing. Also, he was
provided the opportunity to call witnesses and afforded the right to staff representation. Finally,
the BOP provided Applicant with the DHO’s report, and then the amended DHO’s report, which
provided a thorough written explanation of the DHO’s decision, as well as the evidence relied
upon and the rationale for the decision.
Although Mr. Foote argues that he was entitled to a “rehearing” following his appeal, see
[#23 at 3], the response from the Regional Director, dated July 3, 2014, specifically stated: “A
review of your appeal revealed questions concerning the disciplinary hearing record and process.
Accordingly, this disciplinary action is being remanded for further action.” [# 1 at 9 (emphasis
added)]. There is no due process requirement that an inmate receive a rehearing, particularly as
to a DHO Report that has been substantively amended. Following the Regional Director’s
response, an Amended DHO Report was issued and the Code 197 violation was removed, as well
as the associated sanctions. The Code 111A violation was upheld as initially adjudicated with no
new evidence being considered. [#19-1 at 5]. As such, Mr. Foote has not demonstrated that his
constitutional due process rights were violated.
Moreover, contrary to Applicant’s assertions, the DHO’s decision that he violated Code
111, is supported by some evidence. The determination of whether that standard is satisfied
“does not require examination of the entire record, independent assessment of the credibility of
witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any
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evidence in the record that could support the conclusion reached by the disciplinary board.” Hill,
472 U.S. at 455-56. Under Hill, judicial review of a prison disciplinary decision is limited to
ensuring that the prisoner was afforded certain procedures, the action against him was not
arbitrary, and that the ultimate decision has some evidentiary support. Id. at 457. The court
cannot conduct a de novo review of the evidence and re-try the disciplinary case.
In this case, Mr. Foote offers nothing to show that the disciplinary case against him was
arbitrary. The fact that the DHO believed the testimony of the prison staff member rather than
Mr. Foote’s statements does not show a violation of due process; even if the DHO erred, in the
context of prison disciplinary proceedings, the Constitution requires due process, not error-free
decision-making. McCrae v. Hankins, 720 F.2d 863, 868 (5th Cir. 1983). The DHO Report
thoroughly includes information from the Incident Report and cites transcribed telephone calls
that involved Mr. Foote as well as other inmates. [#36-2].
It is apparent upon review of the record that the DHO’s decision was based on “the
greater weight of the evidence,” and that the DHO properly documented his findings and specific
evidence relied on in reaching those findings as required by 28 C.F.R. § 541.17(g). Thus, Mr.
Foote received all the due process protections required for the deprivation of a protected liberty
interest. Therefore, he is not entitled to relief.
CONCLUSION
For the reasons set forth herein, the court respectfully concludes that Mr. Foote is not
entitled to any relief and the Application will be denied. Accordingly, IT IS ORDERED that:
(1)

The Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [# 1]

is DENIED; and
(2)

This case is DISMISSED WITH PREJUDICE.

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DATED: May 17, 2017

BY THE COURT:

s/ Nina Y. Wang
Nina Y. Wang
United States Magistrate Judge

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