Major v. Warden, FCC Coleman - Low
Filing
33
ORDER denying 1 Petition for writ of habeas corpus filed by Cleon Edward Major and directing the Clerk to terminate any pending motions/deadlines, enter judgment and close case in accord with the attached order. Signed by Judge William F. Jung on 9/4/2019. (CCB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
CLEON EDWARD MAJOR,
Petitioner,
v.
CASE NO. 5:18-cv-269-Oc-02PRL
WARDEN, FCC COLEMAN - LOW,
Respondent.
/
ORDER
This cause comes before the Court on the Petition for Writ of Habeas
Corpus (Dkt. 1) filed by Cleon Edward Major pursuant to 28 U.S.C. § 2241, and
the response (Dkt. 29). After careful consideration of the submissions of the
parties and the entire file, the Court concludes the petition should be denied.
BACKGROUND
Cleon Major is a federal inmate who was housed at the Federal Correctional
Institution Williamsburg, located in Salters, South Carolina, when he filed his
petition. Dkts. 1, 1-2.1 He is serving a 110-month term of incarceration imposed
by the United States District Court in the Southern District of Florida. Dkt. 29-1
1
Using his register number (00385-104), the BOP website shows that he is
currently housed at “Coleman Low FCI.” See https://www.bop.gov/inmateloc/,which was
last visited on August 30, 2019.
at 4-5. In July 2015, Mr. Major was disciplined by the Bureau of Prisons
(“BOP”). Id. at 24-26. He contends he did not commit the imposed disciplinary
infraction and seeks to overturn the sanctions imposed. Dkt. 1. His current
release date is calculated at February 6, 2021.2
Mr. Major properly filed this petition in his “district of confinement,” which
at the time was in the United States District Court for the District of South
Carolina, Anderson/Greenwood Division. See Dkts. 21, 23; Rumsfeld v. Padilla,
542 U.S. 426, 447 (2004); Meriweather v. Augustine, No. 5:10-cv-236/RS/EMT,
2010 WL 5152979, at *1 (N.D. Fla. Nov. 22, 2010) (citing Padilla). Once
jurisdiction is properly acquired, “the petitioner’s subsequent removal to another
judicial district does not destroy the court’s jurisdiction.” Elcock v. Streiff, 554
F.Supp.2d 1279, 1282 (S.D. Ala. 2008) (citing Padilla). “[J]urisdiction attaches
upon the initial filing of the § 2241 petition and will not be destroyed by a
petitioner’s subsequent Government-effectuated transfer and accompanying
change in physical custodian.” Id. (citing Tang v. Gonzales, No. 4:06cv277MP/WCS, 2006 WL 3628061 (N.D. Fla. Aug. 18, 2006)); see also Dotson v.
United States, No. CV 312-004, 2013 WL 1786568, at *1 n.1 (S.D. Ga. Mar. 7,
2
See https://www.bop.gov/inmateloc/. At the time the Response was filed, his
release date was February 6, 2020, based on good conduct time. Dkt. 29-1 at 3.
-2-
2013) (transferring prisoner to other prison facilities does not defeat otherwise
properly acquired jurisdiction) (citations omitted), adopted by 2013 WL 1786559
(S.D. Ga. Apr. 25, 2013).
In early 2018, Mr. Major filed a notice of change of address to the Federal
Correctional Institution Coleman - Low (Coleman). Dkt. 18. The District Court
of South Carolina held that it did not retain jurisdiction after the inmate was
moved to another federal penitentiary and transferred the case to this Court. Dkts.
21, 23. In reaching this conclusion, the court noted conflicting law among the
district courts in the Fourth Circuit. Dkts. 21 at 3 n.2, 23. Although Eleventh
Circuit law supports the finding that the transferor court retained jurisdiction, this
Court will not return the case but defer to the District Court of South Carolina’s
decision that it no longer has jurisdiction. Mr. Major is now within this district
and this Court will consider the petition on the merits.
THE BOP RECORD
Incident and Disciplinary Proceedings
On July 5, 2015, Mr. Major was housed at the Federal Correctional
Institution in Estill, South Carolina. Dkt. 29-1 at 7 ¶3, 9 ¶8. He was written up
that day for stealing a used insulin syringe (Incident No. 2734566) in violation of
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28 C.F.R.. § 541.3, Table 1, Code 219. Dkt. 29-1 at 15-16. The incident occurred
at 5:00 p.m. and was described in the report as follows:
[The inmate] did drop a Lancet in the sharps container to
simulate the sound of a syringe being dropped. I did
observe a portion of the safety sleeved in the inmate’s
left hand which is the hand away from this observer.
Inmate was exiting the room door when confronted and
the inmate quickly retreated and dropped the syringe in
the sharps container.
Id. at 15. The report was delivered to Mr. Major the following morning. Id. at 15.
At that time, an investigating BOP lieutenant advised him of his rights, and he
stated that he understood his rights and the charges. Id. at 16. He stated that he
did not try to steal the syringe, but was only playing a trick on Mr. Crosby, a staff
member. Id. at 16.
Before the Unit Discipline Committee (“the UDC” or “the Committee”), Mr.
Major stated, “It was an innocent prank, a joke and that’s it. It [wasn’t] suppose to
go this far. It was only a joke. It was not intentional.” Id. at 15. The Committee
referred the charge to a Discipline Hearing Officer (DHO) for further hearing. Id.
at 15. The Committee recommended that should he be found guilty, thirty days’
loss of good conduct time among other sanctions would be appropriate. Id. at 15.
Mr. Major received notice of the hearing and he was informed of his rights. Id. at
18, 20.
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Mr. Major invoked his right to be represented at the disciplinary hearing by
a staff member, Dr. Contino. Id. at 22. At the hearing before the DHO, his due
process rights were again reviewed with him. Id. at 25. He admitted his guilt for
trying take a syringe from health services, even though he maintained the position
that he was merely playing a prank on Mr. Crosby. Id. at 24, 25. Dr. Contino
stated that Mr. Major was “always appropriate” and she never had any problem
with him. Id. at 25. Mr. Major did not call any witnesses. Id. at 18, 24.
The DHO found Mr. Major guilty of attempting to steal. Id. at 25. Mr.
Major’s defense of pranking was unpersuasive because “it is obvious [he was]
trying to deceive Mr. Crosby” when he “dropp[ed] something in the box to make a
simulation sound of a needle.” Id. The DHO found the statement of staff member
Crosby more credible and gave the following admonishment: “Stealing cannot and
will not be tolerated in this environment as it creates more cost for the operation of
the institution.” Id. The DHO imposed 30 days’ disciplinary segregation, six
months’ loss of phone privileges, and 27 days’ disallowance and forfeiture of good
conduct time. Id. at 7 ¶ 3, 25.
Appeals and Rehearing
Mr. Major appealed the DHO ruling through appropriate administrative
channels. Dkt. 29-1 at 28-30. He sought to have his BOP record expunged of this
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incident and, at a minimum, corrected to reflect consistently the same number of
days disallowed or forfeited. Id. at 29-30. He also took issue with the DHO’s
mistake of referring to Mr. Crosby as an officer when he was in fact a nurse. Id. at
29-30. The case was remanded for rehearing. Id. at 28. Remand was granted
based on the inconsistency between the BOP’s SENTRY computer database and
the DHO report. Id. at 37.
After proper notice and advice of rights, Mr. Major declined to request any
witnesses for the rehearing, only staff representation. Id. at 32, 36. At the
rehearing in January 2016 before a DHO, he was again advised of his rights and
indicated he understood his rights. Id. at 11 ¶ 17. When asked about the charge,
Mr. Major denied that he “tried to take anything” and stated he had no recollection
of making any contrary statement to “the UDC or the investigative lieutenant.” Id.
at 11 ¶ 20, 37. The DHO, Ms. Slater, found Mr. Major “less than truthful based on
the statements you provided to the investigative lieutenant and the UDC” as well
as to the first DHO. Id. at 37. She also found Mr. Crosby more credible – “[t]his
staff member gains nothing by fabricating this incident and provides a more
credible version of events than yours.” Id. Sanctions of 30 days’ disciplinary
segregation (which was already served) and disallowance of 27 days’ good
conduct time were imposed. Id. at 11 ¶¶ 21, 22.
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Mr. Major appealed the decision on rehearing through the administrative
remedy process. Id. at 12 ¶ 23, 45-46. He claimed in pertinent part that the DHO
report contained an inaccurate date and fabricated evidence, specifically a nonexistent photo. Id. at 45-46. Upon receipt of the appeal, the regional office
contacted Ms. Slater concerning the date and photo in her DHO report. Id. at 44.
According to Ms. Slater:
In the response to the Petitioner’s appeal, I was
contacted by the Region in regard to the inaccurate
information. I reviewed the DHO report, and saw I had
inadvertently made two errors that I apparently
overlooked during my preparation of the DHO Report.
There was never a photo and I never considered a photo
in reaching my decision that the Petitioner committed the
prohibited act of Stealing Attempted in violation of Code
219A. I also corrected the error with regard to the date
the incident report was given to the Petitioner. I
amended the DHO Report to correct these errors . . .
Id. at 12 ¶ 24.3 She filed an amended DHO report to correct the date and delete
any reference to the nonexistent photo. Id. at 48. Mr. Major received the amended
report on February 8, 2016. Id. at 12 ¶ 25. The appeal was denied. Id. at 44.
3
Ms. Slater retired as of August 2017, and provided her statement in November
2017 as part of these proceedings before the case was transferred to this district court.
Dkts. 12, 29 at 2 n. 1, 29-1 at 7 ¶ 1.
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Mr. Major then appealed to the Office of General Counsel of the BOP. Id.
at 42-43. He raised the same issues. Id. The appeal was denied for the reasons
that 1) the DHO’s decision was reasonable and supported by evidence, 2) no due
process rights were violated during the disciplinary process, and 3) the sanctions
imposed were commensurate to the severity level of the offense and supported by
policy. Id. at 41.
DISCIPLINARY ACTION
Mr. Major argues that he was denied due process because the evidence
against him was fabricated in the rehearing and insufficient to support the overly
severe disciplinary punishment he received. The fabrication refers to the “photo”
noted on the DHO report after rehearing, which appeared there for the first time.
Dkt. 29-1 at 36. He seeks both the return of the loss of time for good conduct and
the permanent removal of the incident report from his BOP record.
The Conduct of the Disciplinary Proceedings
Prison officials “implement disciplinary proceedings that may, at most,
change the conditions of the inmates’ confinement for purposes of maintaining
institutional order and encouraging compliance with prison rules.” U.S. v. Mayes,
158 F.3d 1215, 1224 (11th Cir. 1998). A staff member may write an incident
report “when staff witness or reasonably believe” that an inmate committed a
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prohibited act. 28 C.F.R. § 541.5(a). An investigation begins and the inmate
receives a written incident report. 28 C.F.R. § 541.5(b). The investigator informs
the inmate of his rights. Id.
Once the investigation is complete, the UDC reviews the incident report at
which time the inmate is permitted to appear before the Committee. 28 C.F.R. §
541.7. “The UDC’s decision will be based on at least some facts and, if there is
conflicting evidence, on the greater weight of the evidence.” 28 C.F.R. § 541.7
(e). If the matter is referred to the DHO, the UDC advises the inmate of his rights
at the upcoming DHO hearing. 28 C.F.R. § 541.7(g).
At the DHO hearing, the inmate is permitted to be represented by staff and
to request witnesses to appear to testify on the inmate’s behalf. 28 C.F.R. § 541.8.
The DHO will consider all evidence presented and the decision “will be based on
at least some facts and, if there is conflicting evidence, on the greater weight of the
evidence.” 28 C.F.R. § 541.8(f). The DHO is required to provide written findings
explaining the basis for the disciplinary action and the inmate’s right to appeal.
Wolff v. McDonnell, 418 U.S. 539 (1974) (outlining specific hearing procedures to
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satisfy standards of procedural due process in prison setting);4 28 C.F.R. §
541.8(h), (i).
The record shows that the BOP followed the inmate discipline regulations in
this case. At all stages, Mr. Major was informed of his rights afforded under the
prison disciplinary proceedings. He received written notice of the charge. Dkt.
29-1 at 15-16. He was informed of the charge and his right to remain silent at the
investigative stage. Id. at 16. He was given adequate advance notice of his rights
with respect to the ensuing disciplinary hearing, and was again reminded of those
rights at the DHO hearing. Id. at 15, 18, 20. On remand, he was advised of his
rights before the rehearing. Id. at 32, 36. He was given ample time to prepare for
his defense at all stages, including the rehearing in January 2016. Id. at 18, 32, 36.
A staff representative was present at both DHO hearings. His appeals were
considered on the merits. Accordingly, the requirements of Wolff have been
satisfied in the conduct of the disciplinary proceedings.
4
“Wolff instructed that prisoners must receive: (1) advance written notice of the
charges against them; (2) an opportunity for the inmate to call witnesses and present
documentary evidence, so long as doing so is consistent with institutional safety and
correctional goals; and (3) a written statement by the factfinder outlining the evidence
relied on and the reasons for the disciplinary action.” O’Bryant v. Finch, 637 F.3d 1207,
1213 (11th Cir. 2011).
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The Sufficiency of the Evidence
The standard for determining whether the DHO’s decision satisfies due
process requirements is whether “some evidence” supports the basis of the
decision. Superintendent v. Hill, 472 U.S. 445, 454-55 (1984). “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 (emphasis added). In
situations where the evidence is conflicting, the BOP regulations appear to go one
step further and require that the DHO’s decision be based on “the greater weight
of the evidence.” 28 C.F.R. § 541.8(f).
Federal courts are not tasked with retrying prison disciplinary actions.
Young v. Jones, 37 F.3d 1457, 1460 (11th Cir. 1994). “No de novo review of the
disciplinary board’s factual finding is required, but the courts must consider
whether at least the decision is supported by ‘some facts’ – ‘whether any evidence
at all’ supports the action taken by prison officials.” Id. (citation omitted). “The
clear implication of Hill is that courts are not to conduct exhaustive reviews of
findings of prison disciplinary panels.” O’Bryant v. Finch, 637 F.3d 1207, 1214
(11th Cir. 2011).
The hearing officers, both initially and on rehearing, relied on existing
evidence in finding the greater weight of the evidence supported the charge of
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attempted stealing. At the initial hearing, Mr. Major admitted that he tried to steal
the syringe as part of a scheme to play a joke on the prison staff member, Mr.
Crosby. The first DHO did not find this excuse as a viable defense to attempted
stealing, nor is there any authority that slipping a syringe up a sleeve – hidden
from the joke’s intended recipient’s view – somehow nullifies the offending
conduct. On rehearing, the DHO reached the same conclusion.
Both hearing officers reviewed the evidence and found the reporting staff
member more credible than Mr. Major. The prank defense was not believed or, at
the very least, not viewed as conduct capable of being condoned. Mr. Major’s
shift in his recollection of the event between the initial hearing in 2015 and
rehearing in 2016 only served to lessen his credibility.5
The Court finds at the very least that Hills’ “some evidence” benchmark has
been met. The only conceivably conflicting evidence was Mr. Major’s admission
followed by his denial that he took the syringe. Despite no other change in the
evidence, both the initial decision and the decision on rehearing were based on the
greater weight of the evidence. Because the disciplinary process was sound and
5
Although the main thrust of the petition focuses on the fabricated “photo,” which
was first mentioned in the DHO report issued after rehearing, the amended DHO report
rectifies the fact that no photo was considered in the decision. Ms Slater swore that there
“was never a photo and I never considered a photo in reaching my decision” that Mr.
Major committed attempted stealing.
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the evidence against Mr. Major sufficient under either the “some” or the “greater
weight” standard, the Court denies the petition.
It is therefore ORDERED AND ADJUDGED that the Petition for Writ of
Habeas Corpus (Dkt. 1) pursuant to 28 U.S.C. § 2241 is denied. The Clerk is
directed to enter judgment for Respondent, terminate any pending motions and
deadlines, and close the case.
DONE AND ORDERED at Tampa, Florida, on September 4, 2019.
s/William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
Counsel of Record
Petitioner, pro se
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