Johnson v. Barron

Filing 6

MEMORANDUM OPINION AND ORDER: 1) Petitioner Johnson's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 [Record No. 1] is DENIED. 2) This action is DISMISSED and STRICKEN from the Court's docket. 3) Judgment in favor of the respondent shall be entered. Signed by Judge Danny C. Reeves on 4/19/2016.(RC)cc: COR, paper copy pro se filer

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at London)
JAMES JOHNSON,
Petitioner,
V.
B. BARRON, WARDEN,
Respondent.

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Civil Action No. 6: 16-24-DCR

MEMORANDUM OPINION
AND ORDER

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Inmate James Johnson has filed an original and an amended pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking to challenge a prison
disciplinary conviction for attempting to manufacture alcohol. [Record Nos. 1, 5] On
October 16, 2013, Johnson placed a white bag containing fruit juice on the window sill of
the prison laundry room. When officers noticed the bag, they reviewed video footage
from closed circuit television cameras and determined that Johnson had placed it there.
During an interview the next day, Johnson admitted that he had placed the bag there in an
attempt to make alcohol. When the liquid tested negative for alcohol, Johnson was
charged with attempting to manufacture alcohol or other intoxicants, an offense described
as Code “111-A” in the incident report. [Record No. 1-1 at 1-2; 1-2 at 2]
During a disciplinary hearing held on October 31, 2013, Johnson stated that “[t]he
report is true; I accept responsibility for this.” The disciplinary hearing officer found
Johnson guilty of the offense and imposed various sanctions, including the disallowance

of 41 days of good conduct time and the forfeiture of 324 days non-vested good conduct
time. The sanctions were ordered to be “served consecutive to like sanctions previously
imposed.” [Record No. 5-1 at 1-3] In his petition, Johnson contends that: (1) there is no
such thing as a “Code 111-A” offense and, therefore, he lacked fair notice of the
punishment he could receive for committing it, and (2) the sanction imposed was too
severe. Johnson requests that the disciplinary conviction be expunged from his record
and that his good conduct time restored. [Record No. 1-1 at 2, 3]
The Court must screen Johnson’s petition, Alexander v. Northern Bureau of
Prisons, 419 F. App’x 544, 545 (6th Cir. 2011), liberally construing his claims because
he is proceeding pro se. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Rule 4 of the Rules
Governing § 2254 Cases in the United States District Courts, which is applicable to
Johnson’s § 2241 petition pursuant to Rule 1(b), requires the Court to deny his petition
“if it plainly appears from the petition and any attached exhibits that the petitioner is not
entitled to relief.”
Johnson does not contend that he was denied the procedural protections required
by due process under Wolff v. McDonnell, 418 U.S. 539, 563-66 (1974) or Superintendent
v. Hill, 472 U.S. 445, 454 (1985). Instead, he first claims that “[n]o where in the inmate
prison rule book or in the Federal Bureau of Prisons program statement does it tell us
(inmates) the punishment for any prihibited (sic) code violation with the letter ‘A’ at the
end of each number violation.” Noting that “[d]ue process requires that inmates receive
fair notice of a rule before they can be sanctioned for its violation” [Record No. 1-1 at 3

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(citing Forbes v. Trigg, 976 F.2d 308, 314 (7th Cir. 1992)], Johnson implies that his
disciplinary sanction violated his due process rights.
Even assuming that this fair notice requirement applies not just to prison rules but
to the possible punishments imposed for violating them, Johnson’s claim necessarily fails
because the Bureau of Prisons provided him with the very notice that he claims was
lacking. The BOP’s Inmate Discipline Program is set forth in detail in BOP Program
Statement (“PS”) § 5270.09 (July 8, 2011).

Prohibited Act Code 111 prohibits

“[i]ntroduction or making of any narcotics, marijuana, drugs, alcohol, intoxicants, or
related paraphernalia, not prescribed for the individual by the medical staff.” PS §
5270.09, Table 1.

Johnson was unsuccessful in his attempt to make alcohol, but

“...[a]iding, attempting, abetting, or making plans to commit any of the prohibited acts is
treated the same as committing the act itself.” 28 C.F.R. § 541.3(a). The Program
Statement explains:
In all categories of severity, aiding another person to commit any of these
offenses, attempting to commit them, or making plans to commit them, is
considered equivalent to committing the offense itself. In these cases, the
letter “A” is combined with the offense code. For example, planning an
escape is Escape, Code 102A. Attempting to adulterate food or drink is
Code 209A.
BOP Program Statement § 5270.09 Ch. 1 § 541.3(b)(5) (July 8, 2011). The Program
Statement thus provided all inmates with clear prior notice that attempting to violate a
prison rule carries the same consequences as actually doing so, and his due process claim
therefore is without merit. Falkiewicz v. Grayson, 110 F. App’x 491, 492 (6th Cir. 2004)
(applying Colten v. Kentucky, 407 U.S. 104, 110 (1972) and City of Chicago v. Morales,
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527 U.S. 41, 56 (1999) to conclude that prison rule need only give fair warning of the
conduct prohibited to overcome vagueness challenge).
Johnson also contends that the sanction imposed was so severe that it constituted
cruel and unusual punishment in violation of the Eighth Amendment to the United States
Constitution. [Record No. 1-1 at 2] However, because a claim that disallowance of good
time credits constituted cruel and unusual punishment would not, even if valid, affect the
duration of Johnson’s confinement, it cannot be pursued in a habeas petition under §
2241. See Stanko v. Obama, 422 F. App’x 146 (3d Cir. 2011); Ricco v. Conner, 146 F.
App’x 249, 253 (10th Cir. 2005). Even if this were not so, a prison disciplinary sanction
need only be reasonably proportionate to the severity of the offense. Overton v. Bazzetta,
539 U.S. 126, 137 (2003); Rummel v. Estelle, 445 U.S. 263, 271-74 (1980). The fortyone days of good conduct time disallowed was permissible under 28 C.F.R. §
541.4(b)(1).
Further, the DHO report directed that Johnson’s sanctions were to be “served
consecutive to like sanctions previously imposed.” [Record No. 5-1 at 1-3] Because
Johnson was already subject to sanctions for other offenses, the forfeiture of 324 days of
non-vested good conduct time was not inappropriate. Cf. Jackson v. Sneizek, 342 F.
App’x 833, 836 (3d Cir. 2009) (upholding disallowance of 54 days of good conduct time
and forfeiture of 352 days of non-vested good conduct time against Eighth Amendment
challenge for prisoner’s Code 110 offense for refusing to provide a urine sample).
Accordingly, it is hereby
ORDERED as follows:
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1.

Petitioner Johnson’s petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2241 [Record No. 1] is DENIED.
2.

This action is DISMISSED and STRICKEN from the Court’s docket.

3.

Judgment in favor of the respondent shall be entered this date.

This 19th day of April, 2016.

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