Chestnut v. Fox

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION for 12 Motion for Order to Show Cause filed by Raymond Chestnut, 9 Report and Recommendation, as more fully set out. Signed by Honorable David L. Russell on 2/23/17. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
RAYMOND CHESTNUT,
Petitioner,
v.
JOHN FOX,
Respondent.

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CIV-16-1352-R

ORDER
Petitioner filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. §
2241 with regard to eight disciplinary convictions during his ongoing incarceration.1 The
Court referred the matter to United States Magistrate Judge Shon T. Erwin for preliminary
review, and on January 26, 2017, Judge Erwin issued a Report and Recommendation,
wherein he recommended the Court dismiss the Petition as untimely. The matter is
currently before the Court on Petitioner’s timely objection to the Report and
Recommendation, which gives rise to the Court’s obligation to undertake a de novo review
of those portions of the Report and Recommendation to which Petitioner makes specific
objection. Having conducted this de novo review, the Court finds as follows.
Petitioner seeks to challenge eight disciplinary convictions imposed during his
incarceration: 1817744, 1846617, 2221354, 2355031, 2307705, 2334774, 2334607, and
2337572. In the Petition, he alleged the timeframe for his administrative appeals, the most

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 Petitioner filed three actions in this Court and in each case, he challenges numerous disciplinary infractions.

recent appeals having been denied on January 23, 2014. As a result, Judge Erwin
recommended denial of the Petition as untimely, because Petitioner failed to file this action
within one year of the exhaustion of his administrative remedies with regard to any of the
disciplinary convictions. Judge Erwin further concluded that Petitioner alleged no basis for
equitable tolling of the statute of limitations.
The objection states, in part: “Petitioner submits that the date(s) or year(s) of his
administrative remedies becoming final as appears in his § 2241 habeas corpus petition is
a technical error. Nevertheless, relief was denied and the prison disciplinary convictions
actually did not become final until on January 28, 2016, June 11, 2016, December 2, 2015,
January 6, 2016, January 23, 2016, and March 13, 2016.” Doc. No. 11, p. 1-2. He contends
he might have provided inaccurate dates with regard to his exhaustion. Finally, he notes he
is entitled to equitable tolling of the Antiterrorism and Effective Death Penalty Act statute
of limitations because extraordinary circumstances prevented him from filing timely legal
challenges to his disciplinary convictions. He asserts he was placed in the Special
Management Unit (“SMU) in 2013 and not released therefrom until 2016 without access
to his legal property until December 5, 2016, when he arrived at USP Terre Haute.
The Court hereby ADOPTS Judge Erwin’s Report and Recommendation. The
Court first notes that Petitioner verified his Petition under penalty of perjury, stating that
the information therein, which included specific dates on which each of his convictions
became final, was correct. He now provides a contrary affidavit setting forth new dates that
would render the instant petition timely. The Court rejects Petitioner’s contention that the
petition is timely; it appears Petitioner’s affidavit is an attempt to manufacture a factual
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dispute by alleging new facts inconsistent with his prior declaration under penalty of
perjury. The Tenth Circuit has held that courts should “disregard a contrary affidavit when
they conclude that it constitutes an attempt to create a sham fact issue.” Franks v. Nimmo,
796 F.2d 1230, 1237 (10th Cir. 1986). Accordingly, the Court hereby disregards Exhibit A
to Petitioner’s Objection and concludes the dates therein do not render the instant Petition
timely.
Additionally, Petitioner’s time in the SMU did not hinder his ability to pursue timely
litigation and therefore he is not entitled to equitable tolling. The instant petition is neither
the first nor the last petition filed as a challenge to the eight disciplinary infractions
identified therein. Despite being in the SMU from 2013 until 2016, Petitioner filed multiple
actions challenging these and other disciplinary convictions. His infractions were the
subject of more than fifty § 2241 petitions filed in the Middle District of Pennsylvania, the
Northern District of Georgia, and the District of South Carolina. The Northern District of
Georgia and the District of South Carolina transferred such actions to the Middle District
of Pennsylvania. Petitioner’s general course of action in each case was voluntary dismissal
of the petition, without explanation, pursuant to Rule 41 of the Federal Rules of Civil
Procedure. Most often, the dismissal came after the Government filed its response to the
petition, but before a court ruling.2 Regardless of the substantive outcome of those

  Petitioner wasted no time in filing new challenges once he was transferred to USP Terre Haute. He currently has
pending in the Southern District of Indiana seventeen individual cases, that court extracted each infraction into a
separate case from the single case Petitioner filed challenging the seventeen disciplinary convictions, the same
convictions he is currently challenging in this Court. See Chestnut v. Daniels, CIV-16-459-WTL-DKL (Doc. No.
11-1)(chart setting forth case number for each disciplinary conviction Petitioner challenges).

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petitions, it is apparent is that Petitioner was not prevented in any manner from filing legal
challenges during the period he was in the SMU.3 Accordingly, the Court concludes
Petitioner is not entitled to equitable tolling of the statute of limitations period with regard
to any of his disciplinary infractions, as he was not deprived of his ability to litigate his
claims during his time in SMU.
For the reasons set forth herein, the instant Petition is DISMISSED AS
UNTIMELY. Furthermore, Petitioner’s Motion for Order to Show Cause (Doc. No. 12) is
hereby DENIED AS MOOT.
IT IS SO ORDERED this 23rd day of February 2017.

 With regard to Petitioner’s conviction in incident 2253031, the United States District Court for the Middle District
of Pennsylvania denied the petition on the merits and denied Mr. Chestnut’s motion for voluntary dismissal.
Chestnut v. Ebbert, CV-15-1581 (M.D.Pa. Sept. 12, 2016). In the Memorandum denying relief the court noted that
Petitioner had exhausted his administrative remedies with regard to this incident and the date of denial of his final
administrative appeal was June 11, 2013. Id. Doc. No. 10. This is consistent with the allegation in the instant
Petition. Hoewver, even without regard to the timing of the petition, the Court would decline to consider a § 2241
challenge to this infraction under 28 U.S.C. § 2244(a). See Pinko v. Berkebile, 601 Fed.Appx. 611, 614 (10th Cir.
2015).
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