Keller v. Cross
ORDER DISMISSING CASE: The Court DENIES and DISMISSES petitioner's § 2241 habeas petition with prejudice. The Clerk shall enter judgment accordingly. Signed by Judge David R. Herndon on 11/29/2017. (lmp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
Civil No. 14-cv-00680-DRH-CJP
WARDEN, TOM WATSON
MEMORANDUM AND ORDER
HERNDON, District Judge:
Luke Keller (Petitioner), a federal inmate, filed a writ of habeas corpus
under 28 U.S.C. § 2241 (Doc. 1) to restore good-conduct credit he lost after a
disciplinary officer found him guilty of fighting another inmate.
Relevant Facts and Procedural History
In September 2011, Petitioner was charged with fighting another inmate in
violation of the Bureau of Prison’s disciplinary code. Keller v. Cross, 603 F. App’x
488, 489 (7th Cir. 2015). At the disciplinary hearing, Petitioner denied fighting.
Id. He contended he was attacked but threw “no punches” at his assailant. Id.
Another inmate who witnessed the altercation corroborated Petitioner’s version of
events. Id. The hearing officer, however, gave more credit to two staff members
who testified they saw Petitioner “throwing punches with closed fists.” Id. The
hearing officer noted Petitioner did not submit documentary evidence and found
him guilty of the charge. Id. Petitioner received twenty-one days in segregation, a
loss of fourteen days of good-time credit, and a ninety-day loss of phone
Petitioner appealed to the regional director, arguing the hearing officer
refused to view video and photos of the incident. Id. According to Petitioner, the
photos would prove he did not fight back, because they showed his face was
injured, while the other inmate’s face was not. Id. The regional director did not
address Petitioner’s argument and denied his appeal, concluding the hearing
officer’s decision rested on sufficient evidence. Id. at 489-90. Petitioner appealed
the denial to the central office, which also denied his appeal. Id. at 490.
Petitioner then filed a petition under § 2241 in this Court to restore his
Id. He argued substantial evidence did not support the
finding of guilt and that the hearing officer did not review the photos or
surveillance video. Id. This Court dismissed the petition on preliminary review,
concluding it was meritless. Id. Petitioner appealed to the Seventh Circuit. Id.
On appeal, the Seventh Circuit affirmed the dismissal of all but one of
Petitioner’s arguments. Id.
They remanded Petitioner’s case for this
Court to determine: (1) whether Petitioner timely requested a review of the
potentially exculpatory photos and, if so, (2) whether the hearing officer ignored
the request. Id. at 490.
The Supreme Court has held that procedural due process extends to
inmates during disciplinary proceedings. Wolff v. McDonnell, 418 U.S. 539, 563
At a minimum, inmates must receive “advance written notice of the
claimed violation and a written statement of the factfinders as to the evidence
relied upon and the reasons for the disciplinary action taken.” Id. In addition,
inmates “should be allowed to call witnesses and present documentary evidence
in [their] defense” when it would not be “unduly hazardous to institutional safety
or correctional goals.”
Id. at 566.
The Seventh Circuit has expounded that
disciplinary officers “may not arbitrarily refuse to consider exculpatory evidence
simply because other evidence in the record suggests guilt.” Whitford v. Boglino,
63 F.3d 527, 536 (7th Cir. 1995). However, “inmates must request the evidence
before or at the hearing, since due process does not require hearing officers to
consider evidence that could have been but was not presented at the hearing.”
Keller v. Cross, 603 F. App’x 488, 490 (7th Cir. 2015).
On remand, Respondent refutes that Petitioner requested the photos at his
disciplinary hearing. Respondent, nonetheless, asserts the hearing officer viewed
the photos as part of the incident report. (Doc. 24, pp. 4-5).
Respondent set forth an affidavit from James Pfeifer, the officer who
conducted Petitioner’s disciplinary hearing. (Doc. 24, Ex. 1). Mr. Pfeifer attested
that he reviewed the incident report before reaching his decision, which includes
photographs of both inmates involved in the fight.
(Doc. 24, Ex. 1, p. 2).
Respondent attached the entire re-written incident report, which contains
photographs of Petitioner and his alleged assailant. (Doc. 24, Ex 2, pp. 11-34).
The photographs are located at pages 15-17.
In response, Petitioner maintains he requested the photographs at his
hearing. 1 He further argues the photographs in the report “are so darkened” that
the Court cannot confirm Petitioner injuries or the alleged aggressor’s unscathed
face. (Doc. 28, pp. 10-11). Petitioner also asserts the original incident report did
not include the photographs, but Mr. Pfeifer manipulated and fraudulently altered
the incident report to included references to the photographs for this review. Id.
Petitioner’s allegations against Mr. Pfeifer are entirely baseless. The record
indicates the photographs of Petitioner and his supposed attacker were included
in the re-written report Mr. Pfeifer reviewed in determining Petitioner’s guilt at the
See Doc. 24, Ex. 2, pp. 11-34.
received the incident report prior to his hearing (Doc. 1, p. 7) but did not object to
the quality of the photographs until he filed his reply to Respondent’s response to
his § 2241 petition (Doc. 28). Finally, the “Discipline Hearing Officer Report” that
summarizes the hearing suggests Petitioner did not request a review of the
photographs at the hearing. The report provides, “Documentary Evidence: The
inmate did not submit documentary evidence.” (Doc. 24, Ex. 2, p. 2).
The totality of the evidence weighs against Petitioner; it shows the hearing
officer considered the photographs at the disciplinary hearing and, furthermore,
Petitioner did not object to the quality of the photos or otherwise raise any issue
as to the photos at the hearing.
Petitioner continues to assert that the BOP is suppressing evidence and violating his due process
and equal protection rights. However, this Court already dismissed those claims and the Seventh
Circuit affirmed the dismissal. The Court’s analysis, therefore, is limited to the narrow issues of
whether Petitioner timely requested a review of the photographs and, if so, whether the hearing
officer actually considered the photographs.
Petitioner has not demonstrated he was denied due process in connection
with the disciplinary proceedings.
Therefore, his Petition for Writ of Habeas
Corpus Under 28 U.S.C. § 2241 (Doc. 1) is DENIED.
The Clerk of Court shall enter judgment in favor of respondent.
IT IS SO ORDERED.
United States District Judge
If petitioner wishes to appeal the denial of his petition, he may file a notice
of appeal with this court within sixty days of the entry of judgment. Fed. R. App.
P. 4(a)(1)(B). A motion for leave to appeal in forma pauperis should set forth the
issues petitioner plans to present on appeal. See Fed. R. App. P. 24(a)(1)(C).
Petitioner is further advised that a motion to alter or amend the judgment
filed pursuant to Federal Rule of Civil Procedure 59(e) must be filed no later than
28 days after the entry of the judgment—a deadline that cannot be extended. A
proper and timely Rule 59(e) motion may toll the 60-day appeal deadline. Other
motions, including a Rule 60 motion for relief from a final judgment, order, or
proceeding, do not toll the deadline for an appeal.
It is not necessary for petitioner to obtain a certificate of appealability from
this disposition of his § 2241 petition. Walker v. O’Brien, 216 F.3d 626, 638 (7th
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