Quenzer v. Hemingway
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. 2241 AND GRANTING PETITIONER LEAVE TO APPEAL IN FORMA PAUPERIS Signed by District Judge Linda V. Parker. (AFla)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
LANDON G. QUENZER,
Case No. 22-cv-11017
Honorable Linda V. Parker
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 AND GRANTING
PETITIONER LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Landon G. Quenzer, confined at the Federal Correctional
Institution in Milan, Michigan, filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Petitioner challenges a prison disciplinary hearing
decision by the Bureau of Prisons (BOP) which resulted in the loss of good
conduct time credits and privileges. For the reasons stated below, the Court is
denying the petition for a writ of habeas corpus.
Petitioner is a federal prisoner who is serving a 120-month sentence for
conspiracy to distribute a controlled substance under 21 U.S.C. § 841(a)(1).
On August 31, 2020, a prison officer filed an incident report charging
Petitioner with possessing a cellular telephone and a battery pack. (Incident
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Report, ECF No. 7-3.) A prison counselor entered Petitioner’s cell and saw a cell
phone sitting on the desk in the common area. (8/31/20 Memo, ECF No. 7-3 at Pg
ID 166.) The cell phone was taped to what appeared to be an improvised battery
pack with multiple wires attached to it. (Id.) Petitioner’s inmate identification
card was discovered on the same desk as the phone and battery pack. (Id.)
The case was referred to the Federal Bureau of Investigation (FBI), but the
FBI declined to investigate on October 21, 2020. (Referral, ECF No. 7-4.) The
case was sent back to the prison for administrative processing.
The following day, October 22, Petitioner was given a copy of the incident
report by the investigating lieutenant and advised of his rights during the prison
disciplinary process. (Incident Report, ECF No. 7-3.) According to the report,
Petitioner was advised of his right to remain silent and stated he understood that
right. (Id. at 2, Pg ID 164. Petitioner then informed the lieutenant that after he got
back from work and showered, his cellmate came back, the two men were counted,
and then pulled from the cell. (Id.) Petitioner claimed that the cellmate threw the
phone while informing Petitioner that he also discarded another phone in their cell.
(Id.) Petitioner reported that his cellmate later told him he was “holding phones for
other inmates,” and that Petitioner didn’t know his cellmate had a phone. (Id.)
The lieutenant found “greater weight” supporting a charge against Petitioner. (Id.)
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The incident report was referred to the Unit Discipline Committee (UDC),
which requested and was granted an extension of time to conduct the investigation
and hearing. (Request, ECF No. 7-5.) Thereafter, Petitioner was given written
notice of the hearing and advised of his hearing rights. (Hr’g Notice, ECF No. 7-6;
Hr’g Rights, ECF No. 7-7.) Petitioner waived his right to have a staff
representative appear on his behalf and stated he did not wish to have any
witnesses. (Hr’g Notice, ECF No. 7-6 at Pg ID 171.) During the UDC
investigation, Petitioner stated: “I was not aware of any contraband in the room. I
am not g[uilty]. Staff pulled me out first and I had nothing on me.” (Discipline
Hr’g Officer Report § V, ECF No. 7-8 at Pg ID 174.)
The UDC hearing was held on November 9, 2020. (See Discipline Hearing
Officer Report at 1, ECF No. 7-8 at Pg ID 173.) During the hearing, the discipline
hearing officer reviewed Petitioner’s due process rights with him, and Petitioner
indicated that he understood his rights. (Id. at § V, Pg ID 174.) Petitioner waived
his right to staff representation at the hearing, did not request any witnesses, and
did not present any documentary evidence. (Id.) During the hearing, Petitioner
stated: “We keep our cell clean. I didn’t know anything about it.” (Id.) (Id. at Pg
“[B]ased on the greater weight of the evidence,” the discipline hearing
officer found Petitioner guilty of possessing a cell phone (code 108) and
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possessing a makeshift battery pack (code 305). (Id. § V, Pg ID 174.) In making
this determination, the discipline hearing officer relied on the reporting officer’s
statement, memorandum from prison staff, photographs of the cell phone and
battery pack, and Petitioner’s statements throughout the disciplinary process. (Id.)
The discipline hearing officer also observed that all prisoners are made
aware through admission, orientation, and the inmate handbook that if contraband
is discovered or confiscated in a common area of the cell, all inmates assigned to
that cell will be held accountable. (Id.) The discipline hearing officer also noted
that although Petitioner stated that he kept his cell clean and there wasn’t any
contraband in the cell, he was at least aware of the cell phone and battery pack
because his cellmate stated that he used the phone on the day of the incident during
the time that all inmates were secured in their cells due to count and Covid
Petitioner sought administrative review of the decision. (Appeal, ECF No.
7-9.) Petitioner’s appeals were denied. (Id.) Petitioner now seeks a writ of habeas
corpus, arguing: (1) that he was not in possession of a cell phone or battery pack
and, (2) that his due process rights were violated by going over the five-day limit
to see the UDC. (Pet., ECF No. 1.)
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A petition for a writ of habeas corpus filed by a federal inmate under § 2241
is proper where the inmate is challenging the manner in which his sentence is
being executed. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998).
The Court construes Petitioner’s first argument as a claim that there was
insufficient evidence to establish that he possessed the cell phone and battery pack
found in his cell. Petitioner points to an affidavit signed by his cellmate, who
states that the contraband was his and not Petitioner’s. (See Aff., ECF No. 1 at Pg
“Not much evidence is required to support the action of a prison disciplinary
board.” Williams v. Bass, 63 F.3d 483, 486 (6th Cir. 1995) (citing Superintendent,
Mass. Corr. Inst., 474 U.S. 445 (1985)). As the Supreme Court and Sixth Circuit
have indicated: “‘Some evidence’ is all that is needed.” Id. (quoting Hill, 472 U.S.
at 455). When deciding whether a prison disciplinary board decision is supported
by evidence, a federal court is “not required to examine the entire record, make an
independent assessment of the credibility of witnesses, or weigh the evidence.” Id.
at 486 (citing Hill, 472 U.S. at 455). “Instead, the relevant question is whether
there is any evidence in the record that could support the conclusion reached by the
disciplinary board.” Id. (quoting Hill, 472 U.S. at 455-56) (emphasis in original).
“[T]he reasonable-doubt standard does not apply.” Hampton v. Williams, Nos. 205
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3158, 3420, 2021 WL 3519333, at *3 (6th Cir. Apr. 28, 2021); see also Mullins v.
Smith, 14 F. Supp. 2d 1009, 1012 (E.D. Mich. 1998).
“[C]ourts ‘have uniformly held that the discovery of contraband in a shared
cell constitutes ‘some evidence’ of possession sufficient to uphold a prison
disciplinary sanction against each inmate in the cell.’” Horton v. Hemingway, No.
21-1388, 2021 WL 5183547, at *2 (6th Cir. Nov. 8, 2021) (quoting Denny v.
Schutlz, 708 F.3d 140, 145 (3d Cir. 2016) and citing additional cases). In Horton,
the Sixth Circuit affirmed the district court’s denial of a habeas petition
challenging a decision that the petitioner violated prison rules after two SIM cards
were found in his shared cell, even though the petitioner’s cellmate admitted that
the SIM cards were his. Id. at *2; see also Spears v. Hemingway, No. 20-cv13392, 2021 WL 3164283, at *3 (E.D. Mich. July 27, 2021) (upholding the BOP’s
disciplinary decision where a corrections officer found an eight-inch shiv
underneath the petitioner’s locker in his shared cell, and the petitioner’s cellmate
took responsibility for it); McCarthy v. Hemingway, 20-cv-12846, 2021 WL
927375, at *3 (E.D. Mich. March 11, 2021) (denying habeas relief where
marijuana was found in a common area of the petitioner’s shared cell and the
petitioner’s cellmate admitted that the marijuana belonged to him). As the Sixth
Circuit reasoned in Horton, “prison rules require inmates to keep their area free
from contraband, regardless of whether the contraband belongs to a cellmate.”
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2021 WL 5183547, at *2 (citing Inmate Discipline & Special Housing Units,
Bureau of Prisons Policy Statement 5270.09, APp’x C); see also Denny, 708 F.3d
at 146 (emphasis added) (explaining that when two or more federal prisoners share
a cell, “each individual prisoner is responsible for keeping the entire cell free from
contraband”). “Because each prisoner in a shared cell has an affirmative
responsibility to keep the entire cell . . . free from contraband,” courts have upheld
the BOP’s decisions that “any contraband found within the cell is constructively
possessed by each of the inmates housed in that cell.” Denny, 708 F.3d at 146.
A prison guard entered Petitioner’s cell and discovered the cell phone and
battery pack on a desk in an area accessible to Petitioner. Petitioner’s inmate
identification card was in the same area. “[The mere discovery of contraband in
[Petitioner’s] shared cell constitute[d] ‘some evidence’ that each prisoner in that
cell [including Petitioner] possessed the contraband.” Id. Because the hearing
officer’s decision is supported by “some evidence” in the record, Petitioner is not
entitled to habeas relief on his first claim. Further as noted above, Petitioner was at
least aware of the cell phone and battery pack because his cellmate stated that he
used the phone on the day of the incident during the time that all inmates were
secured in their cells due to count and Covid restrictions. See Humphreys v.
Hemingway, 77 F. App’x 788, 789 (6th Cir. 2003).
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Petitioner also claims that he is entitled to habeas relief because the UDC did
not conduct its hearing in the matter within five days after the investigative report
was issued, as stated in 28 C.F.R. § 541.7(c). The regulation provides:
The 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. UDC review of the incident report may also be
suspended if it is being investigated for possible criminal prosecution.
28 C.F.R. § 541.7(c) (emphasis added). Another judge in this district, in rejecting
such a claim, noted that “courts have consistently found that a UDC’s delay in
reviewing an incident report does not violate a federal prisoner’s right to due
process.” Linares v. Terris, No. 17-cv-11085, 2018 WL 1709027, at *4 (E.D.
Mich. Apr. 9, 2018) (citing Whyte v. Snyder-Norris, No. 0:16-cv-1, 2016 WL
4069874, at *5 (E.D. Ky. July 28, 2016), aff’d, No. 16-6379, 2017 WL 4071133
(6th Cir. June 27, 2017); Henson v. Longley, No. 3:13-cv-830, 2015 WL 5604273,
at *3 (S.D. Miss. Sept. 23, 2015) (collecting cases)); see also Epps v. Beard, No.
0:20-cv-44, 2022 WL 1462762, at *5 (E.D. Ky. May 9, 2022) (collecting
additional cases and finding no due process violation when UDC review was
conduct “well after the typical five-day period”). In Whyte v. Snyder-Norris, No.
16-6379, 2017 WL 4071133 (6th Cir. June 27, 2017), the Sixth Circuit likewise
found no due process violation when the petitioner’s disciplinary hearing was held
outside the five-day window—fifteen days after he received notice. Id. at *1
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As the district court reasoned in Linares, the regulation provides that UDC
“ordinarily” will complete its review within five days of the incident report being
issued. 2018 WL 1709027, at *4. The district court explained in Epps, when
speaking of the time frame for the UDC review and for delivering a copy of the
incident report to the prisoner:
[B]oth provisions indicate that these time frames will
“ordinarily” be met, not that they must be met in all instances.
Through its inclusion of the qualifying term “ordinarily,” the rule
‘intrinsically contemplates the possibility that prison staff might need
additional time . . .
2022 WL 1462762, at *5. As the timing is not mandatory, Petitioner is not entitled
to relief on his second claim.
For these reasons, the Court concludes that Petitioner is not entitled to
habeas relief under § 2241. A certificate of appealability is not needed to appeal
the denial of a habeas petition filed under § 2241. Witham v. United States, 355
F.3d 501, 504 (6th Cir. 2004). Nevertheless, a petitioner seeking to appeal the
denial of such a petition in forma pauperis must obtain permission before doing so.
The Court is granting Petitioner leave to appeal in forma pauperis because any
appeal would be taken in good faith. See 28 U.S.C. § 1915(a)(3).
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IT IS ORDERED that the Petition for a Writ of Habeas Corpus under 28
U.S.C. § 2241 is DENIED.
IT IS FURTHER ORDERED that Petitioner is granted leave to appeal in
forma pauperis, if he chooses to appeal this decision.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: November 17, 2022
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, November 17, 2022, by electronic
and/or U.S. First Class mail.
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