JENNINGS v. HOLLINGSWORTH
Filing
10
OPINION. Signed by Judge Robert B. Kugler on 3/4/2016. (tf,n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
THOMAS HAREL JENNINGS, II,
:
:
Petitioner,
:
Civ. No. 14-6881 (RBK)
:
v.
:
:
OPINION
WARDEN JORDAN HOLLINGSWORTH,
:
:
Respondent.
:
_________________________________________ :
ROBERT B. KUGLER, U.S.D.J.
I.
INTRODUCTION
Petitioner, Thomas Harel Jennings, is a federal prisoner currently incarcerated at F.C.I.
Fort Dix, in Fort Dix, New Jersey. He is proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241, in which he challenges the outcome of a disciplinary
proceeding brought against him. Respondent answered the Petition. For the following reasons,
while the Court is troubled by the handling of Petitioner’s disciplinary proceeding, Petitioner has
not demonstrated that he is entitled to relief and his habeas petition will be denied.
II.
BACKGROUND
Petitioner is currently serving a sentence imposed by the Western District of Virginia in
2005. (Dkt. No. 1, at p. 1.) While incarcerated at F.C.I. Fort Dix, in July 2012, an investigation
determined that he facilitated the importation of cigarettes into the prison during April 2012.
According to an investigatory report completed by the SIS1 Office (“SIS Incident Report”),
Petitioner participated in the cigarette importation scheme with a co-inmate, Mr. McZilkey, and
an outside party. (Dkt No. 1, at pp. 22-25.) Initially, that outside party was Ms. Molinary and,
1
The report does not spell out the SIS acronym.
subsequently, Ms. Edwards. The SIS Incident Report incorporates incriminating oral testimony
from Ms. Edwards. She provided a statement to SIS investigators after videotape and phone call
evidence suggested that Ms. Edwards was obtaining money from Petitioner’s family members,
using that money to purchase cigarettes, and then delivering the cigarettes to Mr. McZilkey who
would, in turn, deliver them to Petitioner.
Based on the investigatory report, on July 19, 2012, a disciplinary hearing was held and a
Disciplinary Hearing Officer (“DHO”) concluded that Petitioner violated Code 108, Code 217,
and Code 297.2 The ruling imposed several sanctions, including the revocation (disallowance) of
41 days of good conduct time (GCT). The GCT revocation was tied solely to the Code 108
violation.3 Petitioner received a copy of this initial DHO ruling on July 30, 2012.
Thereafter, Petitioner appealed the ruling to the Mid-Atlantic Regional Office, and the
Regional Director vacated the Code 108 violation in a ruling dated September 19, 2012. The
Regional Director left intact the Code 217 and 297 violations. On January 8, 2013, on remand
from the Regional Director’s ruling, the DHO issued an amended DHO report that imposed
additional sanctions. Specifically, the amended ruling disallowed a total of 54 days GCT—27
days each for Codes 217 and 297. Although this ruling was issued in January of 2013, Petitioner
2
The nature of these code violations are explained in more detail in the analysis section of
this opinion.
3
Perplexingly, the initial DHO expressly states in section VII (Reason for Sanction or
Action Taken) that the 41-day disallowance was imposed in connection with the Code 217
violation as well. (Dkt. No. 1, at p. 29.) On that same page of the report, however, there is a
chart that lists the disallowance of GCT as linked solely to the Code 108 violation. (See id.
(stating “108- Disallow Good Conduct Time.”) The Court need not resolve this disparity,
however, because Respondent has conceded that the disallowance of GCT was tied solely to the
Code 108 violation. Therefore, the Court will assume for the sake of this ruling that the 41 days
was not imposed in connection with the Code 217 violation.
2
did not receive notice of it until September 18, 2013. Upon receiving notice, Petitioner appealed
the amended DHO ruling through the appropriate channels, fully exhausting his claims before
filing the instant habeas petition pursuant to 28 U.C.S. § 2241.4
III.
DISCUSSION
Petitioner claims that the Bureau of Prisons (“BOP”) unlawfully revoked 54 days of his
good conduct time. Where a petitioner’s good conduct time is revoked, federal due process
rights may be implicated. The Third Circuit has explained:
Federal prisoners serving a term of imprisonment of more than one
year have a statutory right to receive credit toward their sentence
for good conduct. See 18 U.S.C. § 3624(b); 28 C.F.R. § 523.20
(2008). When such a statutorily created right exists, “a prisoner
has a constitutionally protected liberty interest in good time
credit.” Young v. Kann, 926 F.2d 1396, 1399 (3d Cir. 1991) (citing
Wolff v. McDonnell, 418 U.S. 539, 556-57, 94 S. Ct. 2963, 41 L.
Ed. 2d 935 (1974)). . . .
[A] prisoner’s interest in good time credits “entitle[s] him to those
minimum procedures appropriate under the circumstances and
required by the Due Process Clause to insure that the state-created
right is not arbitrarily abrogated.” Wolff, 418 U.S. at 557, 94 S. Ct.
2963.
Denny v. Schultz, 708 F.3d 140, 143-44 (3d Cir. 2013) (footnote omitted). These minimum
protections are “(1) advance written notice of the disciplinary charges; (2) an opportunity . . . to
call witnesses and present documentary evidence in his defense; and (3) a written statement by
4
Section 2241 of Title 28 of the United States Code confers jurisdiction on district courts
to issue a writ of habeas corpus in response to a petition from a prisoner who is “in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).
Because “[f]ederal prisoners are ordinarily required to exhaust their administrative remedies
before petitioning for a writ of habeas corpus pursuant to § 2241,” Moscato v. Fed. Bureau of
Prisons, 98 F.3d 757, 760 (3d Cir. 1996), courts routinely evaluate exhaustion in such cases.
Here, however, Respondent concedes that Petitioner has exhausted each of these claims. (Dkt.
No. 3, at p. 10.)
3
the factfinder of the evidence relied on and the reasons for the disciplinary action.”
Superintendent v. Hill, 472 U.S. 445, 454 (1985) (citing Wolff, 418 U.S. at 563–67).
Moreover, the Supreme Court has explained that procedural due process concerns dictate
that the disciplinary ruling be factually supported: “[R]evocation of good time does not comport
with the minimum requirements of procedural due process unless the findings of the prisoner
disciplinary [officer] are supported by some evidence in the record.” Id. (internal quotation
marks and citation omitted). The “some evidence” standard is applied by district courts when
reviewing challenges to disciplinary proceedings. Id. The standard is “minimal and does not
require examination of the entire record, an independent assessment of the credibility of the
witnesses, or a weighing of the evidence.” Lang v. Sauers, 529 F. App’x 121, 123 (3d Cir. 2013)
(per curiam) (citing Thompson v. Owens, 889 F.2d 500, 502 (3d Cir. 1989)). Instead, “the
relevant inquiry asks 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
added). Because “[r]evocation of good time credits is not comparable to a criminal conviction,”
the Supreme Court has explained, “[t]he fundamental fairness guaranteed by the Due Process
Clause does not require courts to set aside decisions of prison administrators that have some
basis in fact.” Hill, 472 U.S. at 456.
Petitioner makes several challenges to his disciplinary proceedings, each of which relate
specifically to the amended DHO Report. First, he argues that he was entitled to rehearing on
remand, and that he was not given proper notice of the amended DHO Report. In his view, these
failures violated his constitutional due process rights. Second, he argues that the DHO violated
his due process rights by imposing a greater sanction on remand, revoking more GCT than in the
4
initial DHO report. Finally, he argues that there is no evidence to support the Code 217 and 297
violations. The Court turns first to the sufficiency of the evidence challenges.
A.
Some Evidence
Petitioner first argues that there was insufficient evidence to support the Code 217
violation imposed against him. A Code 217 violation may be imposed against those who have
given or received money “from, any person for the purpose of introducing contraband or any
other illegal or prohibited purpose.” 28 U.S.C. § 541.3 (Table 1). While Petitioner concedes that
he possessed contraband, he argues that there was insufficient evidence before the DHO to
demonstrate that he sent or received money. Specifically, he argues that both his testimony and
the testimony of Ms. Edwards merely establishes that his family sent him money through her.
He further disavows any connection between himself and Mr. McZilkey, arguing it was Mr.
McZilkey who retrieved cigarettes from Ms. Edwards, not him.
Despite Petitioner’s characterization to the contrary, there was evidence before the DHO
that Petitioner was involved in a three-party scheme with Ms. Molinary, and subsequently Ms.
Edwards, and Mr. McZilkey. The DHO based the Code 217 violation on the SIS Incident
Report, which found that Petitioner organized the introduction of contraband into the prison.
(Dkt. No. 1, at p. 27.) The DHO further based this finding on email that Petitioner exchanged
with Ms. Edwards in which he used coded language to arrange the contraband purchases. In an
email to Ms. Molinary, for example, Petitioner told her that $75 would be coming in from “Dad.”
(Id.) Petitioner would also state in his email communications that he called “Dad,” but there is
no telephone record of him having called his father. Because there is no record of calls to
Petitioner’s father, the DHO Report finds that Petitioner’s use of “Dad” is not literal, but is coded
language related to the contraband scheme. (Id.)
5
As noted above, once Petitioner ceased communicating with Ms. Molinary, he began to
be visited by Ms. Edwards. SIS, thereafter, became suspicious of Petitioner’s interactions with
Ms. Edwards and began to investigate. The DHO relied on the SIS Incident Report produced at
the conclusion of this investigation. The report found that Petitioner planned a contraband
exchange with Ms. Edwards during April 14-15, 2012. (Id. at p. 28.) Several days later, on
April 16-17, 2012, investigators found a large amount of cigarettes at the prison. (Id.) The
report notes that, after discovering the contraband, the investigators reviewed video cameras
recording activity on April 14, 2012. In those videos, they saw Mr. McZilkey give a mesh bag to
Petitioner that contained cigarettes. (Id.) SIS then obtained a voluntary oral statement from Ms.
Edwards on May 1, 2012, in which she admitted to delivering the cigarettes, and other items, at
Petitioner’s direction. She further implicated Mr. McZilkey in retrieving the cigarettes from her
vehicle on April 14, 2012. (Id.)
This Court concludes that the foregoing evidence easily satisfied the “some evidence”
standard. As explained above, this Court’s review is limited to whether there is “any evidence in
the record that could support the conclusion reached by the disciplinary board.” Hill, 472 U.S. at
455-56. Through his arguments before this Court, Petitioner attempts to disassociate himself
from Mr. McZilkey’s action and to splice Ms. Edwards’ testimony in a manner that absolves him
from any responsibility. However, the evidence from the SIS Incident Report cited above
provided the DHO with sufficient basis for linking Petitioner to their actions. Moreover,
Petitioner’s argument that Ms. Edwards did not expressly state that Petitioner received money
from her does not alter this Court’s analysis. (See Dkt. No. 4, at p. 2.) As noted above, her
testimony, as recounted in the report, clearly expressed that Petitioner directed her to obtain the
cigarettes on his behalf.
6
Petitioner next challenges the evidence supporting the Code 297 violation. That violation
prohibits the “[u]se of the telephone for abuses other than illegal activity which circumvent the
ability of staff to monitor frequency of telephone use, content of the call, or the number called; or
to commit or further a High category prohibited act.” 28 U.S.C. § 541.3 (Table 1). In support of
his challenge to this violation, Petitioner argues that there was no evidence to support the SIS
Incident Report’s conclusion that he solicited contraband over the telephone. He further hinges
his challenge on Ms. Edwards’ testimony. He argues that, because she never stated that she
spoke in code with him, that the investigating officer’s conclusion in the SIS Incident Report is
based on nothing but his own “self-serving opinions.” (Dkt. No. 1, at p. 20.)
Although Petitioner may disagree with the report’s conclusion that he spoke in code over
the telephone with Ms. Edwards, there is sufficient evidence within the report to support the
Code 297 violation. The DHO relied on the report’s statement regarding a phone call between
Petitioner and Ms. Edwards that took place on April 14, 2012:
At 7:28 AM, on April 14, a call was placed to Ms Edwards at
telephone number 606-813-9300 by inmate Jennings, during the call
he asked, “When you got that money from my aunt, that $100, where
did she send it from? Ms Edwards replied, “Tennessee.” Following
this call, Ms Edwards visited. Following the visit at 7:54 pm, inmate
Jennings called Ms Edwards and asked what she was doing, she
replied, “driving.” he then asked, “Did you go see Trey?" She
replied, “Yeah,” she added, “It went well {pause} trey.” It was
determined “Trey” was a code for the inmate who was meeting her.
Trey is Jennings’ minor child who lives in Virginia.
(Dkt. No. 1, at p. 28.)
By relying on this language from the SIS Incident Report, the initial DHO ruling
documents Petitioner’s use of the telephone to call Ms. Edwards, and it further connects the
phone call to the delivery of contraband on April 14th by noting that the conversation was coded.
As with Petitioner’s conversations with Ms. Molinary, the DHO could interpret Petitioner’s
7
references to family members in his call to Ms. Edwards, and the money, as related to his receipt
of cigarettes that same day. Indeed, the DHO could interpret the reference to “Trey” as a nonliteral one, as it is unlikely that Ms. Edwards would have traveled to Virginia and seen
Petitioner’s son on the same day she visited Petitioner. To be sure, it is possible that Ms.
Edwards did in fact visit Petitioner’s son that day, but it is at least equally possible that she did
not visit him and that the reference to “Trey” was a codename for Mr. McZilkey. Applying the
“some evidence” standard, the Supreme Court has upheld disciplinary board findings that were
based on “meager” evidence. Hill, 472 U.S. at 457. The evidence here is more than meager and
adequately supports the DHO’s finding.5
The Court makes a few additional notes. Petitioner’s suggestion throughout his papers
that the DHO should not rely on Ms. Edwards’ testimony because she did not sign a formal
statement does not alter this Court’s ruling. Petitioner argues that the DHO’s (via the SIS
Incident Report’s) reliance on Ms. Edwards’ oral statement violates BOP Program Statement
5270.09 (“BOP Program Statement”). According to Petitioner, the program statement provides
that “witnesses should sign a statement, if possible”; however, Petitioner did not provide a
pinpoint citation to the Court. (Dkt. No. 4, at p. 2.) The Court reviewed the entire program
statement, and did not find this provision.6 Rather, the BOP Program Statement states that
Petitioner’s arguments that Ms. Edwards’ testimony does not decipher the code is
irrelevant. (Dkt. No. 4, at p. 3.) As explained above, as long as there is any evidence from
which the DHO could have concluded that Petitioner’s recorded conversation was in code, due
process is satisfied.
5
There is a provision, with respect to confidential informants, that states: “If possible, the
statement must be signed by the confidential informant.” (BOP Program Statement, at 32.)
Needless to say, Ms. Edwards is not a confidential informant.
6
As for other outside witnesses, the BOP Program Statement provides that “[w]ritten
statements from outside witnesses may be used by the DHO in lieu of live testimony.” (BOP
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“adverse witnesses need not be called if their knowledge of the incident is adequately
summarized in the incident report and other investigative materials.” (BOP Program Statement,
at 31.) If anything, this language suggests that no written statement is required. Moreover,
“[t]he ‘some evidence’ standard may be satisfied solely by an incident report.” McCarthy v.
Warden Lewisburg USP, No. 15-1826, 2015 WL 7567280, at *1 (3d Cir. Nov. 25, 2015).
Therefore, the DHO reliance on Ms. Edwards’ oral testimony, documented in the SIS Incident
Report, did not violate Petitioner’s due process rights.
Lastly, Petitioner implies that the DHO erred in determining that his testimony was not
credible. As the Court of Appeals has explained, “[a] challenge to the weight accorded evidence
is not relevant to the question of whether the decision was supported by ‘some evidence’ because
the standard does not require ‘weighing of the evidence.’ McCarthy, 2015 WL 7567280, at *2
(quoting Hill, 472 U.S. at 455). Furthermore, where there is conflicting testimony, the DHO’s
decision must be based on the “greater weight of the evidence.” Id. Here, the DHO reasoned in
the initial report that Petitioner gave conflicting testimony throughout the investigation process.
(Dkt. No. 1, at p. 28.) Petitioner seeks to explain away the conflicting testimony; however, the
DHO was free to credit the findings in the SIS Incident Report, the testimony of Ms. Edwards,
and the video tape evidence over Petitioner’s version of events. In this Court’s view, this
combined evidence supports the DHO’s conclusion that the greater weight of the evidence
showed that Petitioner used a telephone as part of a scheme to exchange his family’s money for
cigarettes, and to introduce that contraband in the prison. For each of these reasons, Petitioner’s
sufficiency of the evidence challenges fail.
Program Statement, at 31. (emphasis added)) However, the Program Statement does not indicate
that written statements must be used where possible.
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B.
Remand Challenges
Having concluded that there was some evidence to support the code violations that
remained intact on remand, the Court now turns to Petitioner’s challenges related to the remand.
First, Petitioner argues that he was entitled to notice and rehearing on remand before his GCT
was revoked. Second, he argues that, on remand, the DHO was prohibited from imposing a
greater sanction that he had received in the initial DHO Report. For the reasons explained in
more detail below, the Court is troubled by the treatment Petitioner received on remand.
Nonetheless, under current law, the Court is required to deny Petitioner’s request for relief.
1.
Notice and Rehearing
As explained above, Petitioner appealed the initial DHO Report, which found that he
violated Codes 108, 217, and 297, to the Regional Director. In a decision dated September 19,
2012, the Regional Director concluded that there was sufficient evidence to support the Code
217 and 297 violations, but there was insufficient evidence to support the Code 108 violation.
(Dkt. No. 1, at p. 38.) Other than vacating the Code 108 violation, the appellate ruling indicated
that “[t]he required disciplinary procedures were substantially followed, the evidence supports
the DHO's finding, and the sanctions were appropriate for the offense.” (Id.) The ruling on
appeal indicated to Petitioner that he would “receive an amended report in the very near future.”
(Id.)
Because the 41 GCT disallowance was linked solely to the Code 108 violation, on
remand, this left Petitioner with no GCT-related sanction on the 217 and Code 297 violations.
No rehearing was held by the DHO, and the amended DHO Report was issued—based on the
same evidence presented at the initial disciplinary hearing—on January 8, 2013. (Dkt. No. 1, at
p. 35.) Despite the Regional Director’s statement that Petitioner would soon receive an amended
10
report, Petitioner did not receive the amended report until a full eight months after the report was
issued. He received notice on September 18, 2013. (Id.)
Petitioner argues that the failure to hold a rehearing, and the failure to provide him with
timely notice of the amended report denied him procedural due process. Respondent does not
dispute that a rehearing was not held, nor that Petitioner received a long-delayed notice of the
amended report. In Respondent’s view, the remand process did not trigger any further
procedural protection because it involved a mere “administrative correction of a sanction ….”
(Dkt. No. 3, at p. 13) Citing Knaub v. Zickefoose, Respondent argues that Petitioner received all
the process he was due in connection with the initial disciplinary hearing process. No. 11-938,
2011 WL 6153701 (D.N.J. Dec. 12, 2011).
In Knaub, a petitioner was charged with a Code 108 violation and, at an initial hearing, it
was determined that he committed the prohibited act. The petitioner appealed that decision, and
the Regional Counsel found that a procedural error had occurred and directed a rehearing. Id. at
*2. A rehearing was held and, at the conclusion of the rehearing, the DHO again determined that
the petitioner committed a Code 108 violation and imposed the same sanctions as before. Id.
Seeking relief by way of habeas petition in federal district court, the petitioner argued
that he was denied due process when the BOP “increas[ed] the severity of the sanctions for
possession of a cell phone without adequate notice.” Id. at *6. At first glance, this statement is
confusing, since the petitioner in Knaub received the same sanction on remand, not an increased
sanction. Upon closer review of the opinion, however, it becomes clear that the petitioner was
challenging the BOP’s pre-initial hearing decision to convert his charge from the less severe 305
code violation to a higher severity Code 108 violation. The opinion implies that the petitioner
was initially given notice of a 305 code violation but, by the time of his initial hearing, that
11
violation was upgraded to a Code 108 violation.7 Relying on a panel of the Third Circuit’s thenrecent decision in Hall v. Zickefoose, 448 F. App’x 184 (3d Cir. 2011), the Knaub Court held that
“[w]hile Petitioner has due process rights to notice as to general categories of the acts prohibited,
he has no due process right to notice as to any specific administrative sanction he might face if
his violation gets detected.” Knaub, 2011 WL 6153701, at *6. The court reasoned that the
language of the code itself placed the petitioner on notice “that Code 108 sanctions could be
applied to him ….” Id.
Because Petitioner’s challenge here relates to the imposition of different sanctions on
remand, Knaub is factually distinguishable. In holding that a petitioner “has no due process right
to notice of any specific administrative action,” id., it is clear that the court was not referring to
new or additional sanctions imposed on remand, but to a change in the type of violation pursued
in an initial disciplinary hearing. Accordingly, the Court does not find Knaub’s reasoning
instructive here.
There is other case law that addresses Petitioner’s challenges, however. As for the late
notice that Petitioner received, a recent Third Circuit decision, Griffin v. Ebbert, rejects a similar
due process claim based on a petitioner’s failure to receive a copy of a DHO report until eighteen
months after it was issued:
We recognize that, pursuant to the Supreme Court's decisions in
Wolff and Hill, Griffin was entitled to a “written statement by the
factfinders as to the evidence relied on and reasons for the
disciplinary action.” As the District Court explained, however,
Griffin failed to demonstrate that he was prejudiced by the prison's
apparent failure to promptly provide him with a copy of the DHO
See id. at *5 (describing the petitioner’s claims as “nearly identical” to those in Hall v.
Zickefoose, 448 F. App’x 184, 186 (3d Cir. 2011)); id. at *5-6 (quoting the following excerpt
from Hall: “Hall argued that his due process rights were violated because he did not receive
notice that the penalty for possession of a cellular phone increased from a moderate severity
level violation under PAC 305 to a greatest severity level violation under PAC 108.”)
7
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report. Contrary to Griffin's contention, the regulations permit an
inmate like Griffin to proceed through the administrative appeal
process without a written DHO report as long as he states in his
appeal the date of the hearing and the nature of the charges against
him. In fact, Griffin did appeal the decision here. Although he now
complains that he had to rely on his “memory and/or a guess” in
that appeal, he does not explain which portions of the DHO's
written report he would have challenged if it had been in his
possession.
No. 14-4123, 2016 WL 54114, at *2 (3d Cir. Jan. 5, 2016) (internal citations omitted) (emphasis
added). Critically, the Third Circuit held in Griffin that “[i]n the absence of a showing of
prejudice, we cannot say that Griffin was denied the process he was due.” Id. (citing Wilson v.
Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003)).
Just as the petitioner in Griffin, Petitioner here has not shown that he was prejudiced by
the failure to timely receive a copy of the amended DHO report. Although the Court finds it
disturbing that Petitioner did not receive notice of the amended report until eight months after it
was issued, Petitioner was nonetheless permitted to appeal the amended DHO report. (See Dkt.
No. 1, p. 39.) And, he received a timely response from the Regional Director to that appeal.
(See Dkt. No. 1, p. 41.) Indeed, Petitioner further acknowledges that he was even able to appeal
the Regional Director’s decision to Washington. (See Dkt. No. 1, p. 7.) Therefore, Petitioner is
not entitled to habeas relief based on the untimely notice; “the delay had no prejudicial effect on
[Petitioner’s] administrative appeal and thus does not provide a basis for habeas relief.” Cook v.
Warden, Fort Dix Corr. Inst., 241 F. App'x 828, 829 (3d Cir. 2007) (discussing BOP’s failure to
provide timely notice under 28 C.F.R. § 541.17(g)).
As for the lack of rehearing, Petitioner has not pointed to any case law, regulation, or
Program Statement language that requires rehearings on remand. And, this Court’s research
reveals that courts have held that no disciplinary rehearings are required to support amended
13
DHO reports where “the factual nature of the alleged prohibited conduct . . . remain[s] the
same.” Sanders v. Zickefoose, No. 13-1595, 2015 WL 4729831, at *8 (M.D. Pa. Aug. 10, 2015);
see id. (collecting cases). This is particularly so where the petitioner has not demonstrated that
he would have presented new evidence, or otherwise shown how his strategy would have
differed, on remand. Id. at *9. Here, Petitioner has not argued that he would have presented new
evidence or would have otherwise challenged the sanctions imposed on remand. Indeed, this is
not a case where a new violation was added on remand, or new evidence was presented. The
Code 217 and 297 violations were not disturbed on appeal, and remained in full effect. It was
only the sanctions imposed in connection with those violations that were altered, and no new
evidence was considered by the DHO when amending the sanctions. Accordingly, the lack of
rehearing and untimely notice did not prejudice Petitioner, and do not compel habeas relief in
this case.
2.
Greater Sanction
The Court now turns to Petitioner’s argument that his sanctions should not have been
increased on remand. The Court finds this aspect of the treatment Petitioner received the most
disconcerting. Imposing greater GCT sanctions on remand when one of a petitioner’s code
violations had been vacated could create the appearance of retaliation, and could discourage
petitioners from appealing erroneous DHO rulings.
The heightened sanction is even more troubling when viewed in connection with the
long-delayed notice that Petitioner received of the amended DHO ruling. After the Code 108
violation was vacated on appeal from the initial DHO Report, Petitioner was told that he would
receive an amended DHO Report forthwith. As noted above, he did not. He received the
14
amended DHO Report eight months later, which was his first indication that additional GCT
time had been revoked from him.
Respondent’s primary argument in support of the amended DHO ruling is that the DHO
was mandated by law to revoke 27 days for each violation. In other words, Respondent suggests
that the initial DHO Report contained a legal error and that, when the error was noticed on
remand, the DHO was obligated to fix the error and impose the correct sanction. They cite to 28
C.F.R. § 541.4 in support of their position. Indeed, that regulation provides that, for high
severity level offenses like Code 217 and 297 violations, inmates “will lose at least 27 days, or
50% of available credit if less than 54 days are available for the prorated period, for each act
committed.” 28 C.F.R. § 541.4(b)(2). Respondent further notes that Petitioner was convicted
pursuant to the Prison Litigation Reform Act (PLRA), and that revocation of GCT is mandatory
for such offenders. Id. at § 541.4(a)(2).
Petitioner does not dispute the applicability of 28 C.F.R. § 541.4 to him, but argues that
the DHO had discretion not to follow the regulation on remand. While the regulation states that
the loss of GCT is “mandatory,” id., Petitioner points to language in the BOP Program Statement
that provides: “[a] decision to go below the guidelines is warranted for strong mitigating
factors.” (BOP Program Statement, at p. 14.) He further points to language in the Program
Statement indicating that “[w]here a remand is directed, . . . the DHO is bound by the original
sanction(s) . . .” except in specified circumstances. (Id. at p. 35.) Finally, he points to BOP
Program Statement language indicating that “PLRA inmates are ordinarily disallowed GCT for
each prohibited act” for a “minimum of 27 days ….” (Id. at p. 14 (emphasis added).)
Even assuming that the DHO had discretion to ignore the “mandatory” language in §
541.4, and that the BOP Program Statement authorized the DHO to forego the 27-day penalties
15
on his violations, Petitioner’s due process rights were not violated by the increased sanctions.
All that Wolff requires is that Petitioner be given advance notice of the disciplinary charges, the
opportunity to present evidence in his defense, and a written ruling explaining the evidence
relied on by the DHO and the reasons for the disciplinary action. 418 U.S. at 563–67. Because
the increased sanction was tied to charges that had already been explained to Petitioner in the
initial DHO ruling, and affirmed on appeal, Petitioner cannot now argue that he was not given
notice, was denied the opportunity to present evidence, or was denied a written explanation. He
received all that process in connection with the initial DHO ruling. Petitioner has not pointed to
any authority indicating that additional due process is required when a sanction for a previouslynoticed and defended charge is increased on remand.
Moreover, even if the DHO acted contrary to the BOP Program Statement language, “[a]
prison’s failure to follow its own procedures will not result in a due process violation as long as
the inmate is provided with the process he is due under Wolff ….” Macia v. Williamson, 219 F.
App’x 229, 233-34 (3d Cir. 2007). In addition, to prevail on a due process claim, a petitioner
must show that the BOP’s failure to comply with its own procedural safeguards prejudiced him.
See Patel v. Zenk, 447 F. App'x 337, 340 (3d Cir. 2011). Because this Court has concluded that
there is some evidence to support the Code 217 and 297 violations, and the sanctions imposed by
the DHO are within the range permitted (if not mandated) by § 541.4, Petitioner cannot show
that he suffered prejudice. See Macia, 219 F. App'x at 233-34 (concluding that sanctions “well
within the BOP guidelines for punishment . . . do not amount to a constitutional violation”).
Any BOP error was harmless. See id. (applying harmless error analysis to BOP’s alleged noncompliance with its Program Statement); Elkin v. Fauver, 969 F.2d 48, 53 (3d Cir. 1992) (same).
16
IV.
CONCLUSION
For the foregoing reasons, the habeas petition is denied. An appropriate order will be
entered.
DATED: March 4, 2016
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
17
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