Wallace v. Addison

Filing 11

ORDER adopting Report and Recommendations re 9 Report and Recommendation. Denying Certificate of Appealability. Signed by Honorable Timothy D. DeGiusti on 12/31/2014. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
EDDIE WALLACE,
Petitioner,
v.
MICHAEL K. ADDISON, Warden,
Joseph Harp Correctional Center,
Respondent.

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Case No. CIV-14-1245-D

ORDER
This matter is before the Court for review of the Supplemental Report and
Recommendation issued by United States Magistrate Judge Gary M. Purcell pursuant to 28
U.S.C. § 636(b)(1)(B)-(C). Judge Purcell recommends that the Petition for Writ of Habeas
Corpus Under 28 U.S.C. § 2241 be denied because Petitioner’s claim regarding a prison
disciplinary proceeding does not provide a basis for habeas relief. Petitioner has filed a
timely written objection. Thus, the Court must make a de novo determination of portions
of the Report to which specific objection is made, and may accept, modify, or reject the
recommended decision in whole or in part. See 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72(b)(3).
Petitioner, a state prisoner who appears pro se, seeks a writ of habeas corpus pursuant
to 28 U.S.C. § 2241 based on a claim that he was denied constitutional due process with
respect to a 2013 prison disciplinary conviction and a loss of earned credits for possession
of a cell phone. In the Report, Judge Purcell conducts a preliminary review of the Petition,

as supplemented, and finds that “Petitioner received all of the process he was due in the
challenged disciplinary hearing and that there was some evidence to support the finding of
guilt.” See Report [Doc. No. 9], p.5.1
In his Objection, Petitioner objects to the findings stated in the Report and contends
that Judge Purcell erred in determining there was sufficient evidence to support his
disciplinary conviction. In particular, Petitioner contends that the officer whose accused hi
of misconduct, and whose statement in an incident report was used to supported the
conviction, did not actually witness Petitioner flush a cell phone down a toilet. Petitioner
contends the toilet was flushed before the officer entered the cell and the officer did not
actually see a cell phone. Petitioner relies on the statement of a cell mate that he did not see
Petitioner “have anything or flush anything.” See Pet., Ex. 2 [Doc. No. 1-2], p.3 (ECF
numbering).
Upon careful review of Petitioner’s objection, independent examination of the case
record, and de novo consideration of the issues, the Court fully concurs in Judge Purcell’s
analysis. Specifically, the Court finds there was sufficient evidence before the disciplinary
hearing officer from which a finding of guilt of the charge of possession of a cell phone could
reasonably be made, and there is no allegation that any other requirement of the Due Process
Clause was not satisfied. See Superintendent v. Hill, 472 U.S. 445, 454 (1985) (stating due
process requirements in prison disciplinary proceeding); Mitchell v. Maynard, 80 F.3d 1433,
1

Before the Report was issued, Petitioner filed a Motion to Supplement Habeas Petition [Doc. No. 6]
to supply a missing page 5 that was not included in the original filing. Although Judge Purcell did not
acknowledge the Motion, it appears that the entire Petition [Doc. No. 6-1] was considered.

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1445 (10th Cir. 1996) (“decision can be upheld even if the evidence supporting the decision
is ‘meager’”) (citing Hill, 472 U.S. at 457); see also Howard v. U.S. Bureau of Prisons, 487
F.3d 808, 812 (10th Cir. 2007) (statement in officer’s incident report regarding possession
of contraband was sufficient to satisfy the “some evidence” standard). The Court further
finds that because it plainly appears from the Petition and attached exhibits that Petitioner
is not entitled to relief, no answer by the Respondent is needed and the Petition should be
dismissed. See Rules Governing Section 2254 Cases, Rule 4.2 For the reasons explained by
Judge Purcell, the Court finds that Petitioner is not entitled to habeas relief on the
constitutional claim asserted and that the Petition should be dismissed.
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 9]
is adopted. The Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 is
DISMISSED. Judgment shall be entered accordingly.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2254 Cases, the Court must issue or deny a certificate of appealability (“COA”)
when it enters a final order adverse to a petitioner.3 A COA may issue only upon “a
substantial showing of the denial of a constitutional right.” See 28 U.S.C. §2253(c)(2).
“When the district court denies a habeas petition on procedural grounds without reaching the
prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at

2

A district court acts within its discretion by applying the Section 2254 Rules to a § 2241 petition.
See Boutwell v. Keating, 399 F.3d 1203, 1210 n.2 (10th Cir. 2005).
3

See Montez v. McKinna, 208 F.3d 862, 868-69 (10th Cir. 2000) (requiring a COA to appeal denial
of habeas petition brought by state prisoner under 28 U.S.C. § 2241).

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least, that jurists of reason would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.
473, 484 (2000). “A petitioner satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Upon consideration, the Court
finds the requisite standard is not met in this case. Therefore, a COA will be denied. The
denial shall be included in the judgment.
IT IS SO ORDERED this 31st day of December, 2014.

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