Dalke v. Terris

Filing 9

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KIP DALKE,
Petitioner,

Case No. 16-cv-11165
Hon. Matthew F. Leitman

v.
J.A. TERRIS,
Respondent.
___________________________________/
OPINION AND ORDER DENYING PETITION
FOR WRIT OF HABEAS CORPUS (ECF #1)
Petitioner Kip Dalke (“Dalke”) is a federal prisoner confined at the Federal
Correctional Institution in Milan, Michigan (“FCI Milan”). On March 30, 2016,
Dalke filed a petition in this Court seeking a writ of habeas corpus pursuant to 28
U.S.C. § 2241 (the “Petition”). (See ECF #1.) In the Petition, Dalke challenges a
decision of the Bureau of Prisons (“BOP”) to negate 138 days of good-conduct
time credit that he had earned. (See id.) The sanction stemmed from an incident in
which BOP officials found bottles of alcohol and other items of contraband in a
truck that Dalke and two other prisoners drove during a work furlough. The
Petition claims that BOP staff members failed to comply with BOP policies during
the disciplinary proceedings that preceded the imposition of the sanction. For the
reasons stated below, the Court DENIES the Petition.

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I
Dalke is currently serving a 60-month sentence at FCI Milan following a
conviction for participating in a drug conspiracy. The facts relevant to this action
occurred when Dalke was confined at the Federal Correctional Institution in Terre
Haute, Indiana. On September 23, 2014, shortly after midnight, Dalke and two
other inmates drove from the Terre Haute facility to Talladega, Alabama as part of
a work furlough tasked with making a delivery. When the three men returned to
Terre Haute, prison staff searched the truck and found eight bottles of alcohol and
numerous bags of tobacco. Staff also found a temporary Sam’s Club membership
card bearing Dalke’s name and a receipt showing that Dalke purchased tobacco at
Sam’s Club on the evening of September 23rd. Staff also recovered a cell phone
that included a contact for Dalke’s mother. The truck’s GPS tracking system
showed that the three men had deviated from the planned route and driven to a
shopping center. According to prison staff, Dalke initially admitted to using the
cell phone and purchasing the alcohol and tobacco. (See ECF #7-3.)
On November 3, 2014, following the initial institutional investigation, an
incident report was filed. (See id. at 1-3, Pg. ID 40-42.) Staff gave Dalke a copy of
the incident report that same day. Staff later prepared a re-write of the incident
report containing additional details, and staff gave the re-write to Dalke on
December 1, 2014. (See id. at 4, Pg. ID 43.) 

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The incident was referred to the Unit Discipline Committee (the “Discipline
Committee”), and that committee held a hearing on December 3, 2014. The report
from this hearing indicates that Dalke was advised of his rights and that he chose
not to make a statement. (See id. at 6-7, Pg. ID 45-46.) The Discipline Committee
then referred the incident to a Discipline Hearing Officer for an additional hearing.
Staff provided Dalke with written notice of that hearing.
The Discipline Hearing Officer held a hearing on December 15, 2014. (See
ECF #7-7.) The hearing report indicates that Dalke was informed of his due
process rights, that he indicated that he understood his rights, that he
acknowledged that he received a copy of the incident report, and that he indicated
that he did not have any witnesses to present at the hearing. (See id.) The staff
member appearing on behalf of Dalke indicated that he had met Dalke prior to the
hearing and reviewed the report with him. Dalke did not tell the staff member that
he had any witnesses to present at the hearing.
At the hearing, Dalke admitted that he owned the cell phone and bought the
tobacco, but he denied that the alcohol belonged to him. Dalke said that unlike the
tobacco, there was no receipt for the alcohol and no evidence that he was aware of
its presence in the truck. Dalke also denied that he deviated from the planned
delivery route.

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The Discipline Hearing Officer nevertheless found Dalke guilty of: (1)
possession of a cell phone, (2) possession of alcohol, (3) violation of a furlough
condition, and (4) possession of tobacco. The officer relied on the investigating
officer’s statement, supporting documentation, Dalke’s admissions that the cell
phone and tobacco were his, Dalke’s previous admissions that he and his fellow
inmates deviated from the planned route, and Dalke’s inconsistent statements about
whether or not he purchased the alcohol. (See id. at 2-4, Pg. ID 56-58.) Dalke was
sanctioned with a total loss of 138 days of good-conduct time as well as lesser
sanctions. (See id. at 3-4, Pg. ID 57-58.) Staff delivered the hearing officer’s
report to Dalke on January 28, 2015.
Dalke appealed the disciplinary action to the North Central Regional Office,
but that office denied relief. Dalke then appealed to the Central Office for Inmate
Appeals. Dalke did not receive a response from the central office within the time
allowed by law, and he proceeded to file this action on March 30, 2016. (See ECF
#1.) The central office subsequently denied Dalke’s appeal on May 24, 2016.
II
Dalke raises four challenges to the BOP’s decision to negate his 138 days of
good-conduct time. Dalke first argues that staff issued the incident report beyond
the 30-day limit set by BOP policy. Next, he asserts that the report falsely stated
that he admitted to possession of alcohol. Third, Dalke claims that the BOP did

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not assign an investigating officer who was an “employee at the supervisory level.”
Finally, Dalke alleges that the investigating officer was not “IDC certified” as
required by BOP policy. None of these claims merit relief under Section 2241.
A petition for a writ of habeas corpus is the appropriate vehicle for a
challenge to the revocation of good time credits. See Brown v. Smith, 828 F.2d
1493, 1495 (10th Cir. 1987); Jackson v. Carlson, 707 F.2d 943, 946 (7th Cir.
1983); cf. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). In Wolff v. McDonnell,
418 U.S. 539 (1974), the Supreme Court held that the Due Process Clause provides
certain minimum protections for inmates facing loss of good time credits as a
disciplinary sanction. Specifically, “[w]here a prison disciplinary hearing may
result in the loss of good time credits, . . . the inmate must receive: (1) advance
written notice of the disciplinary charges; (2) an opportunity, when consistent with
institutional safety and correctional goals, to call witnesses and present
documentary evidence in his defense; and (3) a written statement by the factfinder
of the evidence relied on and the reasons for the disciplinary action.”
Superintendent, Mass. Correctional Inst. v. Hill, 472 U.S. 445, 454 (1985)
(discussing Wolff, 418 U.S. at 563-67).
A decision by prison officials to cancel good-time credits need not satisfy
the proof beyond a reasonable doubt standard applicable in a criminal trial. Rather,
“the requirements of due process are satisfied if some evidence supports the

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decision by the prison disciplinary board to revoke good time credits.” Id. at 455.
As the Supreme Court explained, this standard of proof is not demanding:
Ascertaining whether this standard is satisfied does not
require examination 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.
Id. at 455-56. Further, due process “does not require evidence that logically
precludes any conclusion but the one reached by the disciplinary board,” id. at 457,
and a disciplinary finding can be upheld on even “meager” evidence, so long as
“the record is not so devoid of evidence that the findings of the disciplinary board
were without support or otherwise arbitrary.” Id.
Here, the record demonstrates that Dalke received advance written notice of
the charges before his disciplinary hearing. While he complains that the incident
report was generated in an untimely fashion, he does not allege that any delay
adversely affected his ability to defend the charges at the disciplinary hearing. The
officials conducting the hearing also gave Dalke an opportunity to call witnesses,
but he waived that right. In addition, Dalke has not asserted that he was denied an
opportunity to present any documentary evidence. Finally, after the proceedings,
staff gave Dalke a written statement of the evidence relied on and the reasons for
the disciplinary action. (See ECF #7-7 at 1-3, Pg. ID 55-57.)

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With respect to Dalke’s claim about his possession of alcohol, the Discipline
Hearing Officer noted that Dalke denied making an earlier admission to possessing
the alcohol, but the officer nevertheless found that Dalke did indeed possess it. The
hearing officer reasoned:
It is reasonable to believe during the furlough, yourself
and the other two inmates were always in close proximity
to each other and knew what the others were doing at all
times during the furlough of less than 23 hours. Each of
you were in the cab of the truck together and it was the
only source of transportation. The alcohol was found in
the truck during a search, as well as the other contraband.
During the SIS investigation, you stated, “I bought some
tobacco and alcohol. I know it was wrong,” although, at
the DHO hearing you recanted. Whether you admitted to
possession of the alcohol or not, it was in a common area
where all three of you had access, which makes each of
you responsible for the contraband. Additionally, you did
not provide any evidence to refute the alcohol was not
yours or was not found at the time of the search. Receipts
were not found, however, they are not necessary to prove
purchase or possession.
(Id. at 3, Pg. ID 57.)
Despite Dalke’s protestations that he did not admit to possessing the alcohol,
the Discipline Hearing Officer’s finding that he possessed it was supported by
“some evidence.”

Namely, it was supported by the allegation that Dalke

previously admitted to possessing the alcohol and the evidence that it was found in
a common area of the truck which Dalke had access to during the furlough.

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Dalke further asserts that the BOP violated Wolff by failing to prepare “a
written statement provided to [him] regarding the evidence to be relied upon at the
[Discipline Hearing Officer] hearing in advance of said hearing.” (Dalke Reply
Br., ECF #8 at Pg. ID 62.) This is a misreading of Wolff. While the BOP is
required to give advance written notice of the disciplinary charges, it is not
required to give an advance written statement concerning the evidence it intends to
present. See Hill, 472 U.S. at 454 (discussing Wolff, 418 U.S. at 563-67). Instead,
the requirement to give a statement of evidence relied upon arises after the hearing.
See id. Accordingly, and based on the record provided, the due process protections
outlined in Wolff were satisfied here.
Finally, Dalke complains that the investigating officer was not a
“supervisory level” employee of the BOP and was not “IDC certified,” as required
by BOP program statements. However, to the extent Dalke is arguing that the
BOP did not follow its own policies and guidelines, these arguments are not
cognizable under Section 2241. A prisoner’s “habeas claim under § 2241 cannot
be sustained solely upon the BOP’s alleged violation of its own Program
Statements because noncompliance with a BOP Program Statement is not a
violation of federal law, in that such Program Statements are not mandated by
statute or the federal constitution.” Miller v. Terris, 2013 WL 6801157, at *3 (E.D.

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Mich. Dec. 23, 2013) (rejecting identical claim) (citing Reeb v. Thomas, 636 F.3d
1224, 1227 (9th Cir. 2011)).
Because the requirements of due process were satisfied by the BOP in
revoking Dalke’s good-conduct time, he has not demonstrated entitlement to relief.
III
For the reasons stated above, the Petition brought pursuant to 28 U.S.C.
§ 2241 is DENIED. Because a certificate of appealability is not needed to appeal
the denial of a habeas petition filed under Section 2241, see Witham v. United
States, 355 F.3d 501, 504 (6th Cir. 2004), Dalke need not apply for one with this
Court or with the Sixth Circuit before filing an appeal of this Order.
IT IS SO ORDERED.

Dated: April 10, 2017

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on April 10, 2017, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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