Turner v. United States of America

Filing 10

MEMORANDUM AND ORDER ENTERED: This matter is dismissed and all relief is denied. Respondent's motion 6 to strike traverse and petitioner's motion 9 to expedite are denied. Signed by Senior District Judge Richard D. Rogers on 1/13/2012. (Mailed to pro se party Drew Turner by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DREW TURNER,
Petitioner,
v.

CASE NO. 10-3250-RDR

WARDEN, USP-LEAVENWORTH,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed by a prisoner
in federal custody. Petitioner seeks relief from an administrative
disciplinary determination alleging a denial of due process and
insufficient evidence. The court has considered the record and
concludes he is not entitled to habeas corpus relief.
Background
Petitioner is incarcerated in the satellite camp at the United
States Penitentiary, Leavenworth, Kansas. On September 13, 2009, a
Correctional Counselor at the facility discovered petitioner had
contacted an unauthorized party, namely, his mother through the
inmate telephone system. (Doc. 4, Attach. 1, Potts. declar. ¶ 12,
Ex. G.)
Staff monitored the phone call pursuant to procedure and heard
this exchange between the parties to the call:

Petitioner:“I found a way around them.”
Other party: “I don’t think this is a real good idea. This
is going to cause me problems if you’re not supposed to
call me and you go around them. It will cause me problems.
I did not give you this telephone number.” Id.
The Counselor prepared an incident report the same day charging
petitioner with violations of Codes 406/327 Unauthorized Use of
Phone/Unauthorized Contact with Public. Id., Potts declar. ¶ 13. The
report included the date and place of the incident, the specific
charges and the Code sections violated by the petitioner’s conduct,
and a detailed summary of the incident. Id.
The incident report was given to petitioner on September 13,
2009. Id., Potts declar. ¶ 14. On September 24, 2009, the report was
changed to modify the Code sections and incident charge to a
violation of Code 297, Phone Abuse Other Than Criminal Activity.
Id., Potts declar. ¶ 15. Petitioner received a copy on the same day.
Id., Potts declar. ¶ 16.
Staff began to investigate the matter on the same day, and
petitioner

denied

procedures.

The

misconduct,

matter

was

stating

he

had

forwarded

to

the

used
Unit

the

proper

Discipline

Committee. Id., Potts declar. ¶ 17, Ex. H.
Petitioner appeared before the UDC on September 28, 2009, and
stated that the phone number in question belonged to his son. He
explained that his mother answered, and he spoke to her and his son
before hanging up. The UDC referred the incident to the Discipline
Hearing Officer (DHO) for additional consideration. Id., Potts
declar. ¶ 18, Ex. G.
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After this referral, the incident was reviewed by the Bureau of
Prisons’ North Central Regional Office DHO assigned to the hearing.
After that review, the DHO asked that the report be rewritten to
provide petitioner with additional notice of the prohibited conduct.
Id.
On October 26, 2009, the Correctional Counselor rewrote the
incident

report.

explanation
telephone

The

concerning

number

rewritten
the

because

report

removal

she

is

a

of

contained

additional

petitioner’s

retired

BOP

mother’s

employee,

the

instructions petitioner received from the prison administration that
he was not to add his mother’s number to his telephone list, how
petitioner placed the number on the list with another name, the
statements made during the monitored conversation, and the fact that
the number is listed for his mother’s spouse, a BOP employee. The
revised

incident

report

also

explained

that

the

petitioner’s

placement of the call to a number belonging to his motion is the
ground for the higher level misconduct charged. Id., Potts declar.
¶ 20, Ex. I.
The revised report was given to petitioner on October 27, 2009
Id., Potts declar. ¶ 21, and the matter was investigated by staff on
October 27 and 28, 2009.
The matter was forwarded to the UDC for additional review, and
petitioner appeared before the UDC on October 30, 2009. At that
time,

petitioner

stated

that

the

number

was

to

a

cell

phone

belonging to his son, and that his sister gave him the number. The
UDC referred the matter to the DHO. Id., Potts declar. ¶ 23.
3

Petitioner received notice of a hearing and of inmate rights at
a discipline hearing on October 30, 2009. Id., Potts. declar. ¶ 24,
Exs. K-L. Petitioner signed both documents, and did not request
staff representation or any witnesses. Id.
The hearing before the DHO was conducted on November 10, 2009.
The DHO noted petitioner’s receipt of advance notice of the charges
and his due process rights, and petitioner stated he understood
those right, did not intend to submit documentary evidence, and that
he did not seek representation or witnesses. Id., Potts declar. ¶
25, Ex. M.
At the hearing, petitioner stated he called the number to speak
to his son, that staff removed some numbers from his telephone
lists, and that his sister gave him the number in question so that
he could contact his son. Id., Potts declar. ¶ 26, Ex. M.
The DHO found that the evidence showed petitioner was guilty of
the charge based upon the reporting officer’s written report,
petitioner’s

statements

during

the

telephone

call,

and

his

acknowledgement that staff notified him that he was not to contact
his

mother

by

telephone

or

mail.

The

DHO

found

petitioner’s

statements of innocence were not credible due to his statements
during the telephone call. The DHO imposed sanctions of disallowance
of 27 days of good conduct time, and loss of commissary, telephone,
and visitation privileges.
Petitioner was given verbal notice of the decision and he
subsequently received a written report prepared on February 10,
2010. Id., Ex. M.
4

Discussion
A prisoner is entitled to due process before good time credits
may be revoked. Wolff v. McDonnell, 418 U.S. 539, 557 (1974). A
prison disciplinary proceeding provides adequate due process where
the prisoner receives (1) written notice of the violation no less
than 24 hours before the hearing; (2) the opportunity to call
witnesses and present documentary evidence where this is consistent
with institutional safety and penological goals; (3) a written
decision of the evidence and reasons supporting the decision. Wolff,
418 U.S. at 563-66, 571. Due process requires that “some evidence”
in the record support the decision. Superintendent, Mass. Corr.
Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985).
The record in this matter is well-documented and clearly shows
that petitioner received appropriate due process protections as
outlined in Wolff. He had notice of the conduct supporting the
disciplinary report and of his rights at the administrative hearing.
He appeared at the hearing and gave a statement and waived the
opportunity to call witnesses or to have a staff representative, and
he received a written statement explaining the decision against him
and the evidentiary support for it.
Finally,

the

court

finds

that

the

record

contains

ample

evidence to support the conclusion of the DHO, as petitioner’s
comments

during

the

monitored

telephone

call

are

reasonably

understood as an admission of the conduct charged. Moreover, while
petitioner contends that he did not understand that he was not to

5

contact his mother, the record does not support this position. The
rewritten incident report prepared on October 27, 2009, shows that
petitioner

was

advised

that

he

could

not

place

his

mother’s

telephone number on the list of authorized contacts:
The inmate was told by the Executive Assistant that he was
not allowed to add his Mother’s phone number to his
telephone list. A short while after the inmate was placed
on notice, he submitted phone number ... with a name other
than his Mother’s name. (Doc. 4, Ex. I.)
Petitioner’s statement at the hearing reflects his awareness of
the telephone restriction:
I have never had a shot in five years. I have always been
able to go in and talk and work something out. My mom even
sent me money here and they didn’t kick that back. They
just took her off my phone and visits, and told me I can’t
write to her. (Id., Ex. J.)
Accordingly, the court concludes petitioner is not entitled to
relief in this habeas corpus challenge to the disciplinary action
arising from his telephone contact with his mother.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is dismissed
and all relief is denied.
IT IS FURTHER ORDERED respondent’s motion to strike traverse
(Doc. 6) and petitioner’s motion to expedite (Doc. 9) are denied.
Copies of this order shall be transmitted to the parties.
IT IS SO ORDERED.
DATED:

This 13th day of January, 2012, at Topeka, Kansas.

S/ Richard D. Rogers
RICHARD D. ROGERS
United States District Judge
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