Mitchell v. U.S.P.-Marion, IL et al

Filing 155

ORDER denying 118 MOTION to Dismiss filed by Brian A. Bledsoe and denying 150 MOTION to Supplement filed by D. Wallace Mitchell. The case is referred back to Magistrate Judge Williams for an evidentiary hearing. Signed by Chief Judge David R. Herndon on 9/17/2012. (msdi)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

D. WALLACE MITCHELL,
Petitioner,
vs.
BRIAN BLEDSOE,
Respondent.

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Case No. 06–cv–624–DRH–SCW

MEMORANDUM AND ORDER
HERNDON, Chief Judge:
I. Introduction
This matter is before the Court on respondent Brian Bledsoe’s motion to
dismiss (Doc. 118). In his motion to dismiss respondent argues that petitioner D.
Wallace Mitchell’s Statutory Good Time Credit (hereinafter “SGTC”) has been
restored and as petitioner, arguably, has no other liberty interest, respondent seeks
dismissal of the pending petition. Petitioner has filed a response (Doc. 147) in
opposition to respondent’s motion, arguing that his SGTC has not been restored and
that unless the actual incident reports which caused him to lose SGTC are expunged
he will continue to lose his credit. Petitioner also argues that he has other liberty
interests stemming from his loss of SGTC which require his underlying petition to
be resolved. Respondent has filed a reply (Doc. 148) to petitioner’s response.
Petitioner has also asked for leave to file a supplement (Doc. 150) which he claims

will show that he has a liberty interest in his loss of good time. However, as the
Court finds that the supplemental documents which petitioner requests to add are
not required to decide the motion at hand, the Court DENIES petitioner’s request to
supplement (Doc. 150).

Based on the following, the Court further DENIES

respondent’s motion to dismiss (Doc. 118).
II. Background
Petitioner originally filed his petition pursuant to 28 U.S.C. § 2241 on August
14, 2006, seeking to overturn several incident reports he received while being housed
at Marion Penitentiary for violations of his due process rights. Petitioner claims his
rights were violated in fourteen individual incident reports. Petitioner is currently
serving an indeterminate life sentence stemming from convictions he received in the
District of Columbia for assault with intent to kill while armed, felony murder, firstdegree murder while armed, and possession of a firearm during a crime of violence.
On June 21, 2011, the Court issued an order setting the petition for an
evidentiary hearing to determine several factual issues regarding petitioner’s due
process issues. At that time the Court also directed respondent to file briefing
addressing whether petitioner’s SGTC were affected by the disciplinary proceedings
(Doc. 89). On July 7, 2011, respondent filed a brief addressing the Court’s concerns
(Doc. 91). Respondent argued that as petitioner was sentenced pursuant to the
District of Columbia Code, he is subject to that district’s sentencing codes. Petitioner
was sentenced to life imprisonment with a 25 year mandatory minimum (Id.).

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Respondent maintained that as a result of his sentence, petitioner can only have
1200 days of SGTC which are given automatically and cannot be lost as a result of
disciplinary hearings (Id.). Respondent argues that petitioner’s life sentence has not
been affected by his disciplinary hearings and, although petitioner presumably lost
SGTC as a result of the hearings, the time was never deducted from his 1200 SGTC
(Id.). Petitioner filed a response to that briefing disputing respondent’s claim that he
did not accumulate SGTC and that his SGTC were not affected by his disciplinary
sanctions (Docs. 100 & 102).
Respondent was ordered to file a reply as to the issue of SGTC. Respondent
did so, arguing that as a prisoner serving an indeterminate sentence from the District
of Columbia, petitioner did not earn SGTC (Doc. 105). Respondent acknowledged
that documents did show that petitioner had forfeited good time but those numbers
did not affect his parole eligibility date which remained the same and pointed to
exhibits which showed his Statutory Good Time Rate as “0" or “N/A” (Id.).
Given the confusion created by the issue regarding petitioner’s ability to earn
SGTC and whether petitioner had a liberty interest in such credits, the Court
appointed counsel for petitioner to address the issues at an evidentiary hearing (Doc.
114). Specifically, counsel was appointed to provide evidence on the issue of whether
petitioner had a liberty interest in his 1200 days of good time credit and whether
such credits could be lost as a result of a disciplinary sanction. Subsequent to that
appointment, respondent filed the current motion to dismiss (Doc. 118).
In the motion to dismiss respondent informs the Court that petitioner’s SGTC,
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which were reportedly taken away from petitioner as a result of his disciplinary
proceedings, have been restored (Doc. 118).

Respondent points to an Inmate

Disciplinary Data Chronological Disciplinary Record (Doc. 118 Exs. 1 & 2) from
October 18, 2011, showing that the forfeiture of SGTC he had received as part of the
disciplinary hearings has been deleted. In essence, the records now reflect that
petitioner did not lose SGTC as a result of the disciplinary incidents.

Thus,

respondent argues, petitioner’s SGTC had been restored and the records changed
to reflect that he had never lost good time as a result of the disciplinary hearings at
issue (Doc. 118). Respondent further argues that with petitioner having not lost any
SGTC as a result of the disciplinary hearings, petitioner no longer has any liberty
interest in the disciplinary reports (Id.).1
Petitioner filed a response to the motion to dismiss, arguing that his SGTC has
not been restored (Doc. 147). Petitioner first disputes respondent’s claim that
petitioner does not have a liberty interest in his good time credit. Petitioner points
out that he can earn and lose more than 1200 days SGTC and offers exhibits
showing that he has earned more than 1200 SGTC.

Petitioner’s Sentencing

Monitoring Good Time Data sheet from November 2, 2011, reflected that he had
1244 days of good time credit (Doc. 147 Ex. A). Further, the net of petitioner’s
forfeitures, withholdings, and restorations for December 12, 2011, were 1271 days

1

Respondent noted that while the Good Time Credits had been restored,
Respondent was not conceding that petitioner had a liberty interest in his Good
Time Credits.
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(Doc. 147 Ex. C).

Net forfeitures, withholdings, and restorations for March 15,

2012, were 1041 days (Doc. 147 Ex. D). The March 15, 2012, data sheet was
produced after petitioner’s SGTC was purportedly restored.
Petitioner argues that this is proof that his SGTC has not been restored as
suggested by respondent and that he continues to loss good time credits (Doc. 147).
Petitioner argues that given the issues with restoring his SGTC, the main issue of due
process rights violations can not be moot or avoided because his loss of good time
is capable of repetition, in that the SGTC can be restored and then forfeited again
because the disciplinary reports remain on record (Id.).
Respondent has filed a reply to petitioner’s response (Doc. 148). Respondent
points to petitioner’s exhibits B and D showing that petitioner’s forfeiture of SGTC
from the disciplinary hearings at issue have been wiped out and thus his good time
stemming from those dates has been restored (See Doc. 147 Exs. B and D; Doc. 148,
Chart at p. 2). Respondent argues that any liberty interest, and thus due process
rights, petitioner had in the disciplinary hearings are now gone because the forfeiture
of the SGTC have been abolished as disciplinary sanctions.
III. Analysis
Petitioner’s habeas petition was filed pursuant to 28 U.S.C. § 2241 seeking
habeas relief from several prison disciplinary proceedings. A writ of habeas corpus
may be granted if an inmate is in custody in violation of the United States
Constitution or its laws or treaties. 28 U.S.C. § 2241(c)(3). Inmates are entitled to
due process before any of their good time credits, in which they have a liberty
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interest, are taken away from them. Jones v. Cross, 637 F.3d 841, 845 (7th Cir.
2011).
The parties dispute whether petitioner has a liberty interest in his good time
credit given that he is serving an indeterminate life sentence from the District of
Columbia. However, for purposes of this motion, the Court presumes that petitioner
has a liberty interest in his SGTC. While respondent maintains its initial argument
that petitioner does not have a valid liberty interest, respondent’s motion to dismiss
instead argues that since petitioner’s good time credits have been restored, petitioner
no longer has a liberty interest in any of his other punishments from the disciplinary
hearing which would require due process. In essence, respondent argues that now
that petitioner’s punishment of loss of SGTC has been expunged, petitioner’s petition
is moot.
The crux of respondent’s motion to dismiss rests on the fact that the Bureau
of Prisons has now restored petitioner’s SGTC by expunging those disciplinary
sanctions from petitioner’s incident reports. Petitioner argues that the good time
credits have not been restored and until such time as the incident reports themselves
are expunged, petitioner will still continue to lose SGTC based on those reports.
Petitioner claims that forms submitted by respondent have no substance and that his
Sentence Monitoring Good Time Date sheets continue to reflect that loss of SGTC.
Thus, petitioner argues that his good time credits have never been restored.
While it appears from documents that have been provided by respondent that
petitioner’s SGTC has, as of March 15, 2012, been restored and the loss of SGTC as
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a punishment for petitioner’s disciplinary reports expunged, the Court notes that
there is some contradiction among the many reports presented by both sides. As
petitioner points out, respondent initially indicated that petitioner’s SGTC had been
restored but Sentence Monitoring Good Time Data sheets showed that his good time
had not been restored. In fact, a data sheet printout from November 3, 2011, which
was taken after respondent had filed his motion to dismiss on October 19, 2011,
indicating that the good time had been expunged, shows that his SGTC from January
12, 2005, had not been expunged.

The November 3, 2011, data sheet also

contradicts the Inmate Disciplinary Data Chronological Disciplinary Record printout
of October 18, 2011, which respondent included with his motion to dismiss
indicating that the loss of good time credit had been expunged from his disciplinary
record. While respondent points out that Sentencing Monitoring Good Time Data as
of March 15, 2012, does show that the good time credit at issue in this case has now
been properly expunged, the Court understands petitioner’s concern that the
documents he is presented with might be form documents and that his SGTC from
January 12, 2005, might continue to be forfeited. The dueling documents presented
to the Court, along with documents postdating the motion to dismiss indicating that
his SGTC is still being forfeited, present some dispute as to whether petitioner’s
SGTC has been fully restored. Thus, there are still issues of fact as to whether
petitioner’s SGTC has been restored which prevent this Court from granting
Respondent’s motion to dismiss.
While the Court finds that a dismissal of petitioner’s case is not warranted at
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this time, given the numerous issues of concern presented by the parties’ dueling
documents, the Court will refer this matter to the magistrate judge to conduct an
evidentiary hearing to determine whether, once and for all, petitioner’s good time
credits have been restored. Not only will the Court seek confirmation that the SGTC
has been restored and the loss of good time expunged from his disciplinary record,
but it will also seek an explanation as to why petitioner’s Sentencing Monitoring Good
Time Data sheet from November 3, 2011, still listed his good time forfeitures from
January 12, 2005, even though the report was ran after respondent’s motion to
dismiss which reported that petitioner’s loss of good time from that date had been
restored. The Court also expects an explanation as to how the restoration process
works and what effect it has on petitioner’s parole date.
Turning to the issue of parole, the Court notes that petitioner also argues that
he has a liberty interest in parole and that his loss of good time affects his parole
eligibility date as well as his mandatory parole date. Respondent counters that his
parole eligibility date is not impacted by good time credit as petitioner is serving a life
sentence and does not have a maximum term of imprisonment to use in order to
determine a mandatory parole date under the District of Columbia Code.
Respondent also points out that petitioner’s first date to see the parole board has not
changed and that the District of Columbia does not have a provision for Mandatory
Parole.

Petitioner disputes this point and maintains that his parole date does

fluctuate (Doc. 150 at p. 2).
While Respondent’s arguments regarding parole rely on the District of
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Columbia Code, neither party has cited to any relevant case law from this Circuit.2
In fact, the Seventh Circuit has addressed the issue of parole in the habeas context
as it relates to those inmates sentenced under District of Columbia Code. The
Seventh Circuit has previously found that the District of Columbia’s parole statute
does not “contain mandatory language creating an expectancy of release that rises to
the level of a constitutionally protected liberty interest. Indeed, the law is well
established that the D.C. statutory scheme does not create any liberty interest in
parole.” Thompson v. Veach, 501 F.3d 832, 836-37 (7th Cir. 2007) (“[A] state may
create a protected liberty interest in parole by enacting provisions governing parole
that give a prisoner a reasonable expectation that he will be released if certain criteria
are met.”). State statutes create such an expectation when they contain mandatory
language, such as the word “shall”, creating a presumption that a prisoner will be
released if certain criteria are met. Id. at 836 (citing Blair-Bey v. Quick, 151 F.3d
1036, 1047-48 (D.C. Cir. 1998)) (D.C. parole regulations contain non-mandatory
language and do not create a liberty interest in parole); Ellis v. District of Columbia,
84 F.3d 1413, 1420 (D.C. Cir. 1996)) (D.C. parole stattue and regulations do not give
any prisoners a liberty interest in parole); McRea v. Hyman, 667 A.2d 1356, 1357
(D.C. 1995)) (“The District’s parole scheme confers discretion to grant or deny parole

2

Additionally, while respondent cites to the D.C. Code relating to
institutional good time credits and its effect on parole, the motion to dismiss does
not discuss anything about institutional good time (Doc. 148 at p. 4). See Kinard
v. O’Brian, Case No. 7:07-CV-00601, 008 WL 2095112, at *2-3 (W.D. Va. May 16,
2008).
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and the scoring system creates no liberty interest overriding the exercise of that
discretion.”).3 The holding in Thompson seems to suggest to this Court that
petitioner does not have a liberty interest in parole, although neither party discusses
the implications of Thompson on petitioner’s case. Thus, the Court will also seek
evidence regarding petitioner’s parole and the effect, if any, of the discipline at issue
in this case on his parole date at the evidentiary hearing, whether it relates to SGTC
or otherwise. The Court will seek evidence and argument as to whether petitioner’s
parole does indeed fluctuate and, if so, why does it fluctuate and does that have any
impact on the merits of this case. The Court will also seek argument from the parties
as to how Thompson applies to the facts in this case, if at all.
IV. Conclusion
In conclusion, the Court DENIES respondent’s motion to dismiss (Doc. 118).
The Court further DENIES petitioner’s motion to supplement as the Court deems
that an evidentiary hearing is necessary and further evidence can be presented at that
time. The Court refers this matter back to United States Magistrate Judge Stephen
C. Williams, to conduct an evidentiary hearing. At that hearing, the parties should
come prepared to prevent evidence on and argue the following issues:
1.

Whether petitioner’s good time has been restored and an explanation on
how the restoration process works.

3

In Thompson, the petitioner filed a habeas corpus petition challenging
procedures by the United States Parole Commission (USPC) who had rescinded
his parole date and continued his next scheduled parole hearing.
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2.

Whether petitioner’s parole does fluctuate and, if so, why that is so and
whether it has anything to do with the issues in this case.

3.

The impact of Thomspon v. Veach. 501 F.3d 832 (7th Cir. 2007), on
this case

4.

The relevance, if any, of District of Columbia Good Time Credits, and
Educational Good Time Credits, to this case, and in particular, to
petitioner’s parole eligibility.

5.

Any other issues deemed appropriate by the magistrate judge

IT IS SO ORDERED.
DATED: September 17, 2012

Digitally signed by
David R. Herndon
Date: 2012.09.17
11:31:29 -05'00'
Chief Judge
United States District Court

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