Davenport v. Julian

Filing 14

ORDER DISMISSING CASE without prejudice. Signed by Chief Judge David R. Herndon on 2/24/2012. (tjk)

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

LAVANCE DAVENPORT, No.
08443-033,
Petitioner,
vs.
WENDY J. ROAL,
Respondent.

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CIVIL NO. 11-cv-539-DRH

MEMORANDUM AND ORDER
HERNDON, Chief Judge:
This case is before the Court on petitioner’s application for writ of habeas
corpus. Petitioner, an inmate in the Federal Correctional Institution in Marion,
Illinois, brings this habeas corpus action pursuant to 28 U.S.C. § 2241 to
challenge the revocation of good conduct credits. According to the petition, he was
found guilty of several violations, and lost a total of 98 days of good conduct time
(Doc. 1, p. 2). Petitioner is currently serving a 120-month sentence after he pled
guilty in December 2010 to conspiracy to possess and distribute crack cocaine,
and distribution of crack cocaine. United States v. Davenport, Case No. 09-cr-30TBR-1 (W.D. Ky.). In this action, he seeks restoration of his good conduct credit,
expungement of the disciplinary tickets, and restoration of his lower-level security
placement.
Soon after filing the instant petition, petitioner filed a motion to amend it
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(Doc. 7), but failed to comply with Local Rule 15.1. On December 28, 2011, this
Court denied the motion, but granted petitioner leave to submit an amended
petition by January 27, 2012 (Doc. 13). Petitioner never submitted an amended
petition, therefore, the Court shall review his original petition (Doc. 1).
Rule 4 of the Rules Governing Section 2254 Cases in United States District
Courts provides that upon preliminary consideration by the district court judge,
“[i]f it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner.” RULES GOVERNING § 2254
CASES IN THE U.S. DIST. CTS. R. 4 (2010). Rule 1(b) of those Rules gives this Court
the authority to apply the rules to other habeas corpus cases. Id. R. 1(b). After
carefully reviewing the petition in the present case, the Court concludes that
petitioner is not entitled to relief, and the petition must be dismissed.
Background
Although petitioner mentions that he was found guilty of several different
violations which led to the loss of good conduct time, his description of events
gives a fairly coherent picture of only one of those violations: possession of a cell
phone while incarcerated. He did not attach copies of any incident reports or
administrative appeals, though he does refer to the incident report by number
(Doc. 1, p. 2). The cell phone incident occurred in June 2005, while petitioner
was incarcerated in FCI Memphis, Tennessee (Doc. 1, p. 1). A review of the
docket sheets for petitioner’s three federal criminal cases reveals that in June
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2005, petitioner was incarcerated for a different offense from the one for which he
is currently in prison.1
In his first conviction, petitioner pled guilty in the Western District of
Kentucky to distribution of cocaine base (crack), and was sentenced on January
23, 2004, to 70 months (Doc. 30 in United States v. Davenport (“Davenport I”),
Case No. 03-cr-21 (W.D. Ky.)). Later, due to changes in the crack cocaine
sentencing guidelines, petitioner’s sentence was reduced to 60 months (Doc. 44 in
Davenport I, Case No. 03-cr-21 (W.D. Ky. May 19, 2008)).
Petitioner’s second federal conviction resulted from a charge in the Western
District of Tennessee of the misdemeanor offense of possession of contraband (a
cell phone) in prison (United States v. Davenport (“Davenport II”), Case No. 06cr-20112-BBD-1 (W.D. Tenn.)). That offense took place on June 20, 2005, while
petitioner was serving his sentence on Davenport I. Therefore, the Court
concludes that the incident giving rise to this criminal charge must be the same
one that resulted in the lost good conduct credits. Petitioner pled guilty to the
contraband charge, and was sentenced on August 14, 2006, to time served.
Petitioner was eventually released after serving the required time on his 60

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Court documents are, of course, public records of which the Court can
take judicial notice. See Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir.
1994). The Court has consulted the Public Access to Court Electronic Records
(“PACER”) website (www.pacer.gov) in order to determine Petitioner’s criminal
history. See Bova v. U.S. Bank, N.A., 446 F. Supp. 2d 926, 930 n.2 (S.D. Ill.
2006) (a court may judicially notice public records available on government
websites) (collecting cases).
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month sentence in Davenport I, a fact he acknowledges in his habeas petition
(Doc. 1, p. 2). While he was serving his eight years of supervised release on that
conviction, he was indicted and later pled guilty to conspiracy to possess and
distribute crack cocaine, and distribution of crack cocaine. He was sentenced on
December 21, 2010, to 120 months on that conviction (Doc. 50, United States v.
Davenport (“Davenport III”), Case No. 09-cr-30-TBR-1 (W.D. Ky.)). In addition,
the court revoked petitioner’s supervised release in Davenport I and sentenced
him to serve 18 months, consecutive to the 120-month sentence in Davenport III
(Doc. 50, Davenport I, Case No. 03-cr-21 (W.D. Ky. March 30, 2011)). It is these
sentences that petitioner is now serving.
Analysis
In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court set out the
minimal procedural protections that must be provided to a prisoner in
disciplinary proceedings in which the prisoner loses good time, is confined to
disciplinary segregation, or otherwise subjected to some comparable deprivation
of a constitutionally protected liberty interest. Id. at 556-72; see also Hewitt v.
Helms, 459 U.S. 460, 466 n.3 (1983). Prison disciplinary hearings satisfy
procedural due process requirements where an inmate is provided: (1) written
notice of the charge against the prisoner twenty four (24) hours prior to the
hearing; (2) the right to appear in person before an impartial body; (3) the right to
call witnesses and to present physical/documentary evidence, but only when doing
so will not unduly jeopardize the safety of the institution or correctional goals; and
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(4) a written statement of the reasons for the action taken against the prisoner.
Wolff, 418 U.S. at 563-69; see also Cain v. Lane, 857 F.2d 1139, 1145 (7th Cir.
1988). The Supreme Court has also held that due process requires that the
findings of the disciplinary tribunal must be supported by some evidence in the
record. Superintendent v. Hill, 472 U.S. 445, 455 (1985); McPherson v. McBride,
188 F.3d 784, 786 (7th Cir. 1999). However, in reviewing the sufficiency of the
evidence, the Seventh Circuit has instructed that lower courts are to apply a
lenient standard when determining “whether there is any evidence in the record
that could support the conclusion reached by the disciplinary board.” See Webb v.
Anderson, 224 F.3d 649, 652 (7th Cir. 2000) (emphasis in original).
Petitioner claims that he was denied due process during the adjudication of
the incident report over the cell phone, and asserts he is actually innocent of the
conduct violations. He does not mention any irregularities in his initial
disciplinary hearing and appeal to the regional level. However, after he appealed,
the matter was remanded back to the Disciplinary Hearing Officer (“DHO”) for
further consideration of the evidence (Doc. 1, p. 3). At that point, he states the
DHO “altered the code violation without allowing notice to be given,” but he does
not explain the nature of this alteration (Doc. 1, p. 4). Further, he claims that
after the remand, the DHO did not allow him to call any witnesses, present
evidence, or have a staff representative. Finally, petitioner asserts that the DHO’s
conclusions were not supported by sufficient evidence, because they relied only on
the incident report.
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First, the incident report alone would meet the requirement of “some
evidence” to support a finding of guilt in a disciplinary hearing. See Hill, 472 U.S.
at 455; Webb, 224 F.3d at 652. Moreover, the fact that petitioner pled guilty in
federal court (in Davenport II) to the offense of possessing the cell phone in prison
provides ample evidence that he was guilty of the conduct violation, as well as
undermines his claim of actual innocence.
As to the claim that the DHO on remand altered the code violation without
notice, the Seventh Circuit has stated that in order to satisfy due process
requirements, the notice “should inform the inmate of the rule allegedly violated
and summarize the facts underlying the charge.” Whitford v. Boglino, 63 F.3d
527, 534 (7th Cir. 1995) (construing Wolff v. McDonnell, 418 U.S. 539 (1974)).
The purpose of the advance notice requirement is to permit the accused inmate to
gather the relevant facts in order to prepare his defense to the charge. Wolff, 418
U.S. at 564; Whitford, 63 F.3d at 534. Where the advance notice has sufficiently
identified the facts underlying the charge so as to give the inmate all the
information he would need to defend himself, due process requirements have
been satisfied. See Northern v. Hanks, 326 F.3d 909, 910-11 (7th Cir. 2003);
Kalwasinski v. Morse, 201 F.3d 103, 108 (2nd Cir. 1999). In Northern, the
inmate was charged with conspiracy and bribery for his involvement in a tobacco
smuggling operation with two other inmates and a guard. After he appealed the
hearing board’s finding of guilt, the reviewing authority upheld his punishment,
but modified the charge to attempted trafficking. The Seventh Circuit rejected the
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inmate’s argument that his due process rights were violated by the failure to give
him advance notice that he might be charged with trafficking, finding that the
notice and investigation report gave him all the information he would need to
defend against a trafficking charge. Northern, 326 F.3d at 911.
In the instant case, petitioner has not claimed that the failure to give him
notice of the altered charge in any way deprived him of his ability to respond to
the charge or prepare a defense. Thus, the alleged lack of notice does not amount
to a due process violation.
Additionally, petitioner does not claim that he was denied the opportunity to
call witnesses, present evidence, or obtain staff representation in the original
disciplinary hearing, but only raises these issues in the context of the remand.
Petitioner states that the purpose of the remand was for the DHO to give “further
consideration [to] the evidence,” not to take new evidence (Doc. 1, p. 3). If no new
evidence was to be considered, petitioner could not expect to be allowed to call
witnesses or present new matters. Thus, there was no due process violation. See,
e.g., Wells v. Johnson, No. 91 C 987, 1993 WL 79268, at *2-3 (N.D. Ill. March 16,
1993) (where inmate was given the opportunity to present his evidence at a
disciplinary hearing, due process was not violated where the hearing is then
postponed and later reconvened without the inmate being present). Finally, the
Wolff due process requirements do not include a guarantee of staff representation.
In sum, petitioner’s allegations do not establish any due process violation in
connection with the disciplinary charge and loss of good conduct credit for
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possession of the cell phone while incarcerated.
The only other disciplinary infraction described by petitioner is a charge of
escape. However, his statement that this charge was “denied” indicates that he did
not lose good conduct credits over that charge (Doc. 1, p. 2). Petitioner gives no
further information on the escape charge or on any of the other charges which led
to a loss of good time. Thus, the Court is unable to find any basis to consider
those claims further.
Disposition
Petitioner has failed to show that the process he received before losing good
time credits was constitutionally inadequate. Therefore, the habeas petition does
not survive review under Rule 4, and this action is DISMISSED with prejudice.

David R. Herndon
2012.02.24
11:21:13 -06'00'

IT IS SO ORDERED.
DATED: February 24, 2012

Chief Judge
United States District Court

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