Roberts v. Bishop
MEMORANDUM OPINION & ORDER: 1. Roberts's petition for writ of habeas corpus DE 1 is DENIED. 2. The Court will enter a judgment contemporaneously with this order. 3. This matter is DISMISSED and STRICKEN from the docket. Signed by Judge Henry R. Wilhoit, Jr on 9/26/17.(KSS)cc: COR, Roberts (via US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at ASHLAND
JANISSE BISHOP, Acting Warden,
Civil No. 0: 16-131-HRW
*** *** *** ***
Federal inmate Jackie Roberts has filed a prose petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 challenging the imposition of prison
disciplinary sanctions. [D. E. No. 1] This matter is before the Court to conduct an
initial screening of Harris's petition. 28 U.S.C. § 2243; Alexander v. Northern
Bureau of Prisons, 419 F. App'x 544, 545 (6th Cir. 2011).
On October 5, 2015, Officer Grose was conducting surveillance of the prison
recreation grounds via security camera when he noticed three inmates smoking
near a small shelter on the yard. He radioed this information to Officer Ison, who
approached the area and saw the three men, including Roberts, sitting at a table
passing around a single cigarette and exhaling smoke. Ison searched the inmates
but didn't find the cigarette.
[R. 1-1 at 4]
Roberts was initially charged with
Smoking Where Prohibited, a Code 332 disciplinary offense, but that charge was
later amended to Possession of Non-Hazardous Contraband, a Code 331 offense.
[R. 1-1at1, 2]
A Disciplinary Hearing Officer ("DHO") held a hearing on October 28,
2015. In response to the charges, Roberts issued a blanket denial, contending that
neither he nor his associates were smoking at all. Unconvinced, the DHO relied
upon the statements of both reporting officers that they saw Roberts smoking.
Roberts also complained that he couldn't be found guilty of possessing a cigarette
since it was never found. The DHO noted that the Officer Ison saw him exhaling
cigarette smoke, a clear indication that he had possessed a cigarette. The DHO
also noted that cigarettes found in prison are often handmade and much smaller
than their commercial counterparts, and hence can be quickly swallowed by the
inmate or thrown into grass where they can be very difficult to find. The DHO
found Roberts guilty of the offense and imposed various sanctions, including the
disallowance of fourteen days of good conduct time. [R. 1-1 at 3-6]
Roberts appealed the disciplinary conviction on numerous grounds, but the
BOP's Mid-Atlantic Regional Office denied his appeal in January 2016. In doing
so, it invoking its authority pursuant to BOP Program Statement 5270.09 to modify
the charge to Smoking Where Prohibited (the original charge), and an amended
DHO Report was issued shortly thereafter. [R. 1-1 at 7-13] Roberts indicates that
the BOP's Central Office never responded to his final appeal.
When a prison disciplinary board takes action that results in the loss of good
time credits in which the prisoner has a vested liberty interest, the Due Process
Clause requires prison officials to observe certain protections for the prisoner.
Specifically, the prisoner is entitled to advanced notice of the charges, the
opportunity to present evidence in his or her defense, whether through live
testimony or documents, and a written decision explaining the grounds used to
determine guilt or innocence of the offense. Woljf v. McDonnell, 418 U.S. 539,
563-66 (1974). Further, the findings used as a basis to revoke good time credits
must be supported by some evidence in the record. Superintendent v. Hill, 4 72
U.S. 445, 454 (1985); Selby v. Caruso, 734 F. 3d 554, 559 (6th Cir. 2013).
Roberts' s challenge to the sufficiency of the evidence is without merit. This
Court's review of whether there was "some evidence" to support the DHO's
factual determinations is extraordinarily deferential: "[a]scertaining whether this
standard is satisfied does not require examination of the entire record, independent
assessment of the credibility of witnesses, or weighing of the evidence. Instead,
the relevant question is whether there is any evidence in the record that could
support the conclusion reached by the disciplinary board." Hill, 472 U.S. at 45556 (emphasis added). Two officers saw Roberts and the other inmates smoking,
first by surveillance camera and then in person. The officers were not required to
obtain physical evidence of the cigarette; their personal observations of Roberts
smoking provided more than sufficient evidence to find him guilty of either
smoking in an unauthorized area or possession of contraband. The disciplinary
conviction was therefore supported by some evidence and comports with the
requirements of due process.
Roberts also complains that: the Unit Disciplinary Committee took six days
to amend the Incident Report after it was first issued; he never received a copy of
the UDC's findings and recommendations; the DHO who conducted the hearing
was an officer from his prison rather than an "outside" DHO from another prison;
and MARO amended the charge for which he was found guilty. Each of these
actions were taken in conformity with BOP regulations, and none provide a basis
to disturb his disciplinary conviction.
First, "[t]he UDC will ordinarily review the incident report within five work
days after it is issued, not counting the day it was issued, weekends, and holidays."
28 C.F.R. § 541.7(c). The amended incident report was issued on October 11,
2015, one day before the five-day period ended when the date of issuance and
weekend days are excluded. The BOP complied with its regulations.
Second, because Roberts was sentenced under the PLRA, see United States
v. Roberts, No. 6: ll-CR-50-GFVT-l (E.D. Ky. 2011), the loss of fourteen days of
good conduct time was a mandatory sanction for his "moderate severity" offense.
28 C.F.R. §§ 541.4(a)(2), (b)(3).
Only a DHO can order good conduct time
forfeited or disallowed, 28 C.F.R. § 541.7(£), so the UDC was required to
automatically refer Roberts's incident report to a DHO. 28 C.F.R. § 541.7(a)(4).
When it did so, the regulations direct the UDC to state its reasons for the referral
and to recommend sanctions, 28 C.F.R. § 541.7(g), but this generally consists of
nothing more than a statement that the referral was required so that the DHO can
impose the mandatory loss of good conduct time if guilt is found. Roberts was
provided with the amended Incident Report the day it was issued and two weeks
before the DHO hearing [R. 1-1 at 2], and due process required no more than that.
Wolff, 418 U.S. at 563-66.
Third, the fact that the DHO was also an officer at the prison does not run
afoul of the BOP's regulations. 28 C.F.R. § 541.8(b). It is true that "[a]n impartial
decisionmaker is a fundamental requirement of due process that is fully applicable
in the prison context." Gwinn v. Awmiller, 354 F.3d 1211, 1219 (10th Cir. 2004).
But a mere allegation of bias does not undermine the presumption of integrity
afforded a prison disciplinary tribunal; instead, the petitioner must provide "some
substantial countervailing reason to conclude that a decisionmaker is actually
biased with respect to factual issues being adjudicated." Withrow v. Larkin, 421
U.S. 35, 46-47 (1975); Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 518 (10th
Cir. 1998). Roberts's suggested evidence of bias - the mere fact that the DHO
worked with other officers at the prison - is wholly insufficient to establish it:
While it might well be desirable to have persons from outside the
prison system sitting on disciplinary panels, so as to eliminate any
possibility that subtle institutional pressures may affect the outcome of
disciplinary pressures may affect the outcome of disciplinary cases and
to avoid any appearance of unfairness, in my view due process is
satisfied as long as no member of the disciplinary board has been
involved in the investigation or prosecution of the particular case, or
has had any other form of personal involvement in the case.
Wolff, 418 U.S. at 592 (Marshall, J., concurring). The DHO was not involved in
either the investigation or prosecution of the incident report in this case, and
Roberts has provided no viable factual basis to demonstrate or even suggest bias.
Cf. Lasko v. Holt, 334 F. App'x 474 (3d Cir. 2009).
Finally, the regional office acted within its authority to modify the
prohibited action code of which Roberts was found guilty based upon the same
facts already found by the DHO. 28 C.F.R. § 541.8(i); Program Statement 5270.09
Ch. 5 (July 8, 2011). In doing so the regional office did not change or increase any
sanction imposed and, contrary to Roberts' s suggestion, made no new findings of
fact. Rather, it merely revised the prohibited action code to conform to its view of
the offense supported by the evidence.
Nor is there any factual inconsistency
between the DHO's findings and the regional office's action: while an inmate
might possess a cigarette without smoking it, he cannot smoke a cigarette without
possessing it. The amendment of the charge was consistent with BOP regulations
and the requirements of due process.
Cf. Sanders v. Zickefoose, 2015 WL
4 729831, at * 7-10 (M.D. Pa. Aug. 10, 2015) (collecting cases).
Accordingly, it is ORDERED as follows:
Roberts's petition for a writ of habeas corpus [D. E. No. 1] is
The Court will enter a judgment contemporaneously with this order.
This matter is DISMISSED and STRICKEN from the docket.
This 26th day of September, 2017.
f~\ Signed By:
~ Henry R. Wilhoit
United States Di1trlct Judge
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