Kelley v. Warden, FCI Elkton
Filing
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Memorandum Opinion and Order dismissing this action. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Dan A. Polster(C,KA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
PHILLIP LEE KELLEY,
Petitioner,
v.
WARDEN, F.C.I. ELKTON,
Respondent.
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CASE NO. 4:13 CV0662
JUDGE DAN AARON POLSTER
MEMORANDUM OF OPINION
AND ORDER
Pro se Petitioner Phillip Lee Kelley filed the above-captioned petition for writ of
habeas corpus pursuant 28 U.S.C. §2241 (ECF No. 1). Kelley, who is incarcerated in the Federal
Correctional Institution in Elkton, Ohio (F.C.I. Elkton), names F.C.I. Elkton’s Warden as
Respondent. He alleges that evidence used to convict him of a disciplinary infraction at the Federal
Correctional Institute in Morgantown, West Virginia (F.C.I. Morgantown) was insufficient. For
the reasons set forth below, this action is dismissed.
Background
Kelley was still incarcerated at the F.C.I. Morgantown on February 6, 2012 when a
correctional officer performed a routine search of his housing cubicle. During the course of his
search the officer removed the face plate of an outlet within Kelley’s cubicle and discovered a
cellular telephone and charging unit. At the time of the search, Kelley was working at his
assigned duty station in the prison. When he and his roommate returned to their cubicle they
were advised that an incident report would be written up soon.
On the same date the officer discovered the telephone, an incident report was issued
against Kelley. The report charged him with Possession, Introduction or Manufacture of a
Hazardous Tool in violation of Code 108.1 The matter was referred to the Disciplinary Hearing
Officer (DHO) due to the seriousness of the infraction.
Fifteen days before the DHO hearing, Kelley was given a written copy of the report and
advised of his rights. This included his right to a Staff Representative, which he requested and
was provided.
The hearing was held on February 21, 2012 via video conference. The staff
representative, a plumbing foreman with whom Kelley worked, stated he was a reliable worker,
got along well with others and was working at the shop at the time the officer discovered the
telephone. Kelley stated that he understood his rights, denied ownership or knowledge of the
hidden telephone and explained that he uses all his minutes each month and had no need for a
cellular telephone. In fact, he claimed he had only lived in the cubicle for one year, but that his
roommate lived there longer.
The reporting officer’s statement, as contained in the Incident Report, revealed that while
he was conducting a random search on February 6, 2012, he entered the cubicle Kelley shared
with another roommate. He noted that “[e]ach cubicle is assigned one outlet specific to that
cubicle.” (ECF No. 3-3, at 36). When the officer removed the cover plate to the outlet in
Kelley’s shared cubicle he discovered the telephone and charger.
1
A separate incident report, with the same charges, was also issued against Kelley’s
roommate.
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Kelley claimed he should not have been held accountable for an area to which he
believed any prisoner had access. The DHO responded that Inmates Rights and Responsibilities
require all inmates keep their assigned areas free of contraband. To the extent that the cavity of
an outlet would provide an ideal hiding place and the reporting officer noticed something amiss
with the outlet’s faceplate, the DHO concluded Kelley could have also been easily aware that
something was hidden behind the plate. Because each inmate in the cubicle had equal access to
the outlet without disturbing the other’s personal property, the DHO applied the liability concept
of “constructive possession.” Under this theory, every inmate assigned to a particular area is
responsible for objects found in an area common to both inmates, unless someone admits
responsibility. Since neither inmate assumed ownership of the contraband, the DHO held each
roommate accountable.
Finally, while Kelley denied ownership of the telephone, the DHO found it more likely
that he would have a motive to evade responsibility than the reporting officer would be
motivated to falsely accuse him. Considering the officer’s report and Kelley’s defenses, the
DHO found that the greater weight of evidence established that he committed the prohibited act.
As a result, Kelley was sanctioned with the loss of 41 days of Good Conduct Time (GCT), 21
days disciplinary segregation, 180 days restriction on telephone privilges and 180 days
restriction on visitation. He received a copy of the DHO’s decision on the same date it was
issued.
Kelley timely appealed the DHO’s decision arguing there was insufficient evidence to
convict him. In support, he claimed he should not be held accountable for staff who are “unable
to control the floor of all the contraband being brought into the compound.” (ECF No. 3-5, at
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40). Moreover, Kelley noted that the telephone did not contain any information that suggested it
belonged to him or his roommate. He believed the officer should have first cleared and secured
the area before performing any cubicle search. Otherwise, Kelley argues any one of the 327
inmates housed at the prison could have easily hidden the telephone in his area.
Discussion
Kelley asserts the incident report should be expunged from his record and his forfeited
GCT restored. He believes it was erroneous for the DHO to apply the “constructive possession”
principle to his case because the facts do not support its application. Specifically, he argues the
area in which the contraband was found could be accessed by more than 300 inmates. The style
of cubicle in which he was housed was surrounded by walls no higher than 4½ feet and he
believes any inmate could have entered his cubicle and hidden a telephone behind the cover plate
of the outlet during the time he was at work.
Citing several cases dealing with constructive possession, Kelley argues that the theory is
not without limits.2 In his case, he believes the DHO exceeded the scope of those limits by
applying it to an unreasonable expectation of possession. Relying on a Fourth Circuit opinion he
cites as “McClung v. Hollingsworth, 483 F.3d 273 (4th Cir. 2007),” Kelley argues that the
concept is only appropriate in cases involving very limited inmate access (i.e. no more than two
to four inmates) to a common area. The cubicle in his dormitory is not locked and he believes
any inmate could have entered his area because he and his roommate were routinely absent from
2
Although Kelley states “the Sixth Circuit applied the doctrine [of constructive
possession] in Miles v. USP Big Sandy, 2012 U.S. Dist. LEXIS 22877 (E.D. KY 2012),” the
citation is to Bronzene v. Astrue, No.1:10-CV-00967, 2012 U.S. Dist. LEXIS 22877, 2012 WL
602142 (N.D. NY Feb. 23, 2012), an unreported Social Security appeal in the United States
District Court for the Northern District of New York.
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their cubicle because of their work assignments. Thus, he believes the DHO’s application of the
constructive possession doctrine is faulty.
As a secondary argument, Kelley argues he was denied his right to due process. While
he concedes that his rights to due process only require that the DHO find “some evidence”exists,
he believes the DHO relied on an investigative report to which he never had access. As such, he
claims he was unable to defend himself against information of which he had no knowledge. In
addition, he argues the DHO never allowed him or his roommate to see the cellular telephone
that was recovered from his area.
Initial Review
This matter is before the Court for initial screening. 28 U.S.C. § 2243; Harper v. Thoms,
No. 02-5520 2002, WL 31388736, at *1 (6th Cir. Oct. 22, 2002). A court is required to award an
application for writ of habeas corpus “unless it appears from the application that the applicant or
person detained is not entitled thereto.” 28 U.S.C. § 2243. The Sixth Circuit has consistently
held that "[t]he burden to show that he is in custody in violation of the Constitution of the United
States is on the prisoner." Allen v. Perini, 424 F.2d 134, 138 (6th Cir. 1970), cert. denied 400
U.S. 906 (1970)(citations omitted). Kelley has not met his burden.
28 U.S.C. § 2241
A petition for a writ of habeas corpus under 28 U.S.C. § 2241 addresses any petitioner's
claim that he or she "is in custody in violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2241(c)(3). The writ of habeas corpus is directed, however, “to the
person having custody of the person detained.” 28 U.S.C. § 2243; see Braden v. 30th Judicial
Circuit Ct. of Ky., 410 U.S. 484, 494-95 (1973) ("The writ of habeas corpus does not act upon
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the prisoner who seeks relief, but upon the person who holds him in what is alleged to be
unlawful custody."). Therefore, a court has jurisdiction over a habeas corpus petition only if it
has personal jurisdiction over the petitioner's custodian. Braden, 410 U.S. at 495. Although the
incident about which Kelley complains took place in West Virginia, his custodian at the time he
filed this action is located within the Northern District of Ohio. As such, this Court has personal
over Kelley’s custodian.
Without question, a petition for writ of habeas corpus filed by a federal inmate under §
2241 is proper where the inmate is challenging the manner in which his or her sentence is being
executed. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir.1998). Therefore, because the loss
of GCT affects the length of Kelley’s confinement, this Court also has subject matter jurisdiction
over his challenge to the BOP's decision to sanction him with the loss of 41 days GCT. While
the Court does have personal and subject matter jurisdiction over Kelley’s petition, he is not
entitled to habeas relief for the reasons set forth below.
Due Process
Kelley claims that his rights to due process under the Fifth Amendment have been
violated. “It is well settled that an inmate's liberty interest in his earned good time credits cannot
be denied without the minimal safeguards afforded by the Due Process Clause of the Fourteenth
Amendment.” Mitchell v. Maynard, 80 F.3d 1433, 1445 (10th Cir.1996)(citation omitted.). In
Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court noted that "[p]rison disciplinary
proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant
in such proceedings does not apply." Id. at 556. The Sixth Circuit later outlined what was
required to satisfy the standards for due process under Wolff and its progeny: “[I]nmates facing
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loss of good-time credits arising from disciplinary charges for misconduct must be given
advance notice of the charges, the opportunity for an evidentiary hearing, a decision by an
impartial tribunal and a written statement of reasons.” Woodson v. Lack, 865 F.2d 107,109 (6th
Cir. 1989)(quoting Wolff, 418 U.S. at 564-67).
Kelley was provided all the due process to which he was entitled under Wolff. The prison
provided him advance notice of the charges, a DHO hearing before an impartial officer and a
written statement of the reasons for the DHO’s conclusion. His allegation, therefore, that he was
not provided notice of the officer’s report does not comport with the facts.
On page 2, paragraph V. of his report, the DHO specifically states: “To make this
finding, the DHO relies on the reporting officer’s statements contained in the Incident Report
as follows ...” (ECF No. 3-3, at 36)(emphasis added). Kelley received a copy of the Incident
Report on the same date it was issued. Therefore the statement upon which the DHO relied was
the same statement contained in the report Kelley received.
Kelley’s allegations that he should not have been charged with any infraction because the
evidence was insufficient does not suggest a due process violation. Instead, it merely amounts
to a claim that the DHO's decision was not supported by the evidence.
A federal court's review of the quantum of evidence supporting a prison disciplinary
board's decision is limited to determining whether ‘some evidence' supports the decision.
Superintendent v. Hill, 472 U.S. 445, 455 (1985). A district court is not permitted to re-weigh
the evidence presented to the board. Id. at 455. A prison official's determinations in disciplinary
cases must be made quickly and in a highly charged atmosphere. Id. at 456. The “Constitution
does not require evidence that precludes any conclusion but the one reached by the disciplinary
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board.” Id. at 457.
The evidence alleged to have been submitted to the DHO, as confirmed by the
disciplinary records and summarized above, reflects that contraband was discovered after a
search of Kelley’s cubicle.3 Although one other inmate was housed in the cubicle, he also denied
ownership of the telephone and charger. These facts are undisputed. The DHO considered this
information, Kelley's defenses and the statements of the staff member who represented him.
These facts, combined with the officer's testimony, constitute far more evidence than the
minimal amount necessary to convict an inmate of a prison disciplinary infraction in compliance
with due process. The DHO's decision satisfies the “some evidence” test of Superintendent v.
Hill.
Finally, Kelley’s reliance on McClung is not controlling. Although he provides a
reported citation to that case,4 the decision to which he is actually referring is cited as McClung
v. Hollingsworth, No. 06-6699, 2007 WL 1225946 (4th Cir. Apr. 26, 2007), an unreported
Fourth Circuit opinion. Furthermore, a district court is only bound by the decisions of the
Circuit Court of Appeals in which it sits. See Cochran v. Trans-General Life Ins. Co., 60
F.Supp.2d 693, 698 (E.D. Mich.1999). By contrast, this Court is not bound by decisions of
Courts of Appeals for other circuits. See Ghandi v. Police Dept. of City of Detroit, 74 F.R.D.
115, 122 (E.D. Mich.1977).
3
This includes a photograph of the cellular telephone operating on battery power, which
is noted in the DHO’s report on page 2, paragraph III., D., “Documentary Evidence.” (ECF No.
3-3, at 36).
4
The case citation Kelley provided, “483 F.3d 273,” is for United States v. McClung, a
direct appeal to the Fourth Circuit from a sentence imposed after the defendant pleaded guilty to
extortion under color of official right.
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Even the Miles decision Kelley claims that the Sixth Circuit issued is actually an
unreported case from the Eastern District Court of Kentucky. More importantly, the Miles
court’s discussion of constructive possession does not suggest anything akin to the Fourth
Circuit’s holding in McClung. In Miles v. USP-Big Sandy, No. 7:11-CV-00058, 2012 U.S. Dist.
LEXIS 55877, 2012 WL 1380274 (E.D. Ky. Apr 20, 2012), the district court noted:
As for Miles’ argument that the DHO lacked specific evidence or
testimony indicating that he had actual knowledge of their
existence, such evidence was not necessary. In Perez v. Rios, No.
08–CV–171–KKC, 2009 WL 499141 (E.D.Ky. February 27,
2009), Perez was convicted of possessing hazardous tool (knives),
forfeited 41 days of GTC, and sought relief in a § 2241 petition. Id.
at * 1. Perez, like Miles, argued that the knives did not belong to
him.
In denying Perez's § 2241 petition, the Court noted that inmates are
responsible for ensuring that their cells remain free of contraband.
Relying on Hill, the Court found that there was sufficient evidence
to support the DHO's finding that because Perez was in control of
his cell area, he was in possession of a hazardous tool. Id. at *2.
This Court has reached the same result in other similar cases
involving claims of constructive possession over contraband or
weapons. See Hayes v. Hickey, No. 10–CV–18–KSF, 2010 WL
1740875, at *7 (E.D. Ky. April 28, 2010); Farris v. Wilson, No.
09–127–GFVT, 2009 WL 3257955, at *5 (E.D.Ky. October 8,
2009); Kenner v. Martimer, No. 08–CV–73–KKC, 2008 WL
2355832, *3 (E.D. Ky. June 6, 2008). The rationale of these cases
applies here and supports the DHO's conclusions.
Miles, 2012 WL 1380274, at *3. Therefore, unlike the Fourth Circuit’s unreported opinion in
McClung, neither the Sixth Circuit nor any district court within its boundaries has held that the
constructive possession rule will only provide “some evidence” of guilt when relatively few
inmates have access to the area. See McClung, 2007 WL 1225946, at *3.
Although the evidence in this case might be characterized as limited, a DHO's finding
does not rely on the same amount of evidence necessary to support a criminal conviction. See
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Jackson v. Virginia, 443 U.S. 307 (1979), nor "any other standard greater than some evidence"
ordinarily applicable in such a context. Thus, while there was no direct evidence identifying
either of the two inmates as the owner of the cellular telephone, the “record was not so devoid of
evidence that revocation of good-time credits was without support or otherwise arbitrary.” Hill,
472 U.S. at 457. The record clearly reveals an evidentiary basis for the disciplinary decision.
Conclusion
Based on the foregoing, this action is dismissed pursuant to 28 U.S.C. § 2243.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could
not be taken in good faith.
IT IS SO ORDERED.
/s/Dan Aaron Polster 8/26/13
DAN AARON POLSTER
UNITED STATES DISTRICT JUDGE
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