RAOUF v. WARDEN, MCKEAN FCI

Filing 13

MEMORANDUM OPINION that 4 Petition for Writ of Habeas Corpus filed by RAIBWAR RAOUF will be denied. An appropriate Order follows. Signed by Magistrate Judge Susan Paradise Baxter on 8/8/18. (lrw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RAIBWAR RAOUF,
Petitioner,
v.
RAFAEL ZUNIGA, et al.,
Respondents.

)
)
)
)
)
)

Civil Action No. 17-172 Erie
Magistrate Judge Susan Paradise Baxter

OPINION1
Pending before the Court is a petition for a writ of habeas corpus filed by federal prisoner
Raibwar Raouf (the "Petitioner") pursuant to 28 U.S.C. § 2241. He is challenging a disciplinary action
taken against him in which he lost 27 days of good conduct time. As relief, he seeks an order from this
Court directing that his incident report be expunged so that he may be restored the good conduct time he
lost as a sanction. The Court denies the petition for the reasons set forth below.

I.
A.

Relevant Factual Background
The Petitioner is serving a term of imprisonment imposed upon him by the United States District

Court for the District of Connecticut in May 2014. The Bureau of Prisons (the "BOP") designated him to
FCI McKean, which is located within the territorial boundaries of this Court. On November 17, 2016,
Scott Eckert, who is a drug treatment specialist working at FCI McKean, searched the Petitioner's cell.
At 7:30 p.m. on November 17, 2016, Eckert issued an incident report in which he stated:
I was shaking down [the Petitioner's] cube and found the following items from Food
Service in a laundry bag hanging on the wall: 1 piece of baked chicken; 6 apples; and 2
banana's [sic]. I also found the following items from food service in coolers under [the
Petitioner's] locker: 2 lbs of shredded chicken; 1 lb of shredded cheese; and 1 onion. I
1

In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily consented to have a U.S. Magistrate
Judge conduct proceedings in this case, including entry of a final judgment.

1

paged [the Petitioner] to his cube and questioned him about these items. He stated they
were his and admitted they were stolen from food service.
(ECF No. 9-4 at 2).
The disciplinary committee referred the incident report to a Discipline Hearing Officer ("DHO")
for final disposition and imposition of sanctions. (Id.; ECF No. 9-6 at 2). The Petitioner was provided
with a written notice of his rights. (ECF No. 9-5 at 2). He waived his right to a staff representative and
declined to call witnesses to testify on his behalf. (ECF No. 9-6 at 2).
The Petitioner's disciplinary hearing was held on December 1, 2016. Keith Stauffer was the
DHO. During his hearing, the Petitioner acknowledged that he had admitted to Eckert that the foodstuffs
were his but stated that he did not "know where the items came from. They were given to me. I cook in
the unit." (ECF No. 9-7 at 3). Stauffer determined that the Petitioner committed the violation of
possessing stolen property. He noted that the items found in the Petitioner's cell "(shredded chicken,
shredded cheese, baked chicken)[,] are not regularly for sale to the inmate population; therefore, they
must have been stolen. You are responsible for items in your assigned cube." (Id.) As a sanction, the
Petitioner was disallowed 27 days of good conduct time. (Id.)
After having no success in his administrative remedy appeal, the Petitioner commenced habeas
proceedings in this Court by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
(ECF No. 4). In relevant part, 28 U.S.C. § 2241 provides: "The writ of habeas corpus shall not extend to
a prisoner unless … [h]e is in custody in violation of the Constitutional or laws or treaties of the United
States[.]" 28 U.S.C. § 2241(c)(3). The Respondent filed an answer (ECF No. 9) in which he contends
that the petition should be denied on the merits. The Petitioner did not file a reply. LCvR 2241.D.2 ("the
petitioner may file a Reply (also known as "a Traverse") within 30 days of the date the respondent files
its Response.")
2

B.

Discussion
This Court has jurisdiction over the instant petition under 28 U.S.C. § 2241, which "confers

habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the
execution of his sentence." McGee v. Martinez, 627 F.3d 933, 935 (3d Cir. 2010) (quoting Coady v.
Vaughn, 251 F.3d 480, 485 (3d Cir. 2001) and citing Woodall v. Fed. Bureau of Prisons, 432 F.3d 235,
241 (3d Cir. 2005)); Queen v. Miner, 530 F.3d 253, 254 (3d Cir. 2008) (per curiam) ("[a] challenge,
such as this one, to a disciplinary action that resulted in the loss of good-time credits, is properly brought
pursuant to § 2241, as the action could affect the duration of the petitioner's sentence.")
The Petitioner contends that he is entitled to habeas relief because Stauffer was not an impartial
decision maker. (ECF No. 4 at 4). As a prisoner facing a deprivation of a liberty interest in a prison
disciplinary hearing, he was entitled to procedures sufficient to ensure that his interest in his good
conduct time was not arbitrarily abrogated. Wolff v. McDonnell, 418 U.S. 539, 557 (1974). Specifically,
he had to be afforded certain minimal procedural protections, including, inter alia, an impartial tribunal.
See id. at 570-71 (disciplinary committee was sufficiently impartial so as not to violate due process).
The United States Court of Appeals for the Third Circuit Court has held that "the requirement of an
impartial tribunal prohibits only those officials who have a direct personal or otherwise substantial
involvement, such as major participation in a judgmental or decision-making role, in the circumstances
underlying the charge from sitting on the disciplinary committee. This would normally include only
those such as the charging and investigating staff officers who were directly involved in the incident."
Meyers v. Alldredge, 492 F.2d 296, 306 (3d Cir. 1974). The BOP has established regulations that set
forth the procedures for disciplinary actions. These regulations track the requirements set forth by the
Supreme Court in Wolff, and in some respects exceed the required process set forth in that case. In order
to ensure impartiality, the relevant BOP regulation provides that the DHO may not be "a victim, witness,
3

investigator, or otherwise significantly involved in the incident." 28 C.F.R. § 541.8(b). The regulation
does not mandate that the hearing officer be completely divorced from or wholly unfamiliar with the
underlying incident.
To support his claim that Stauffer was partial, the Petitioner attached to his petition affidavits
prepared and submitted by the following inmates: Algernon Took, Kevin Torres, and Luis Guzman.
(ECF No. 4 at 18-20). The Took affidavit relates that on November 17, 2016, he saw Stauffer enter the
Petitioner's unit (the F-Unit Building) and then exit it approximately forty-five minutes later carrying "a
large bag." (Id. at 20). Guzman's affidavit contains similar information. He states that he saw Stauffer
walking towards the F-Unit building in the company of a number of drug treatment specialists. He later
saw Stauffer and the specialists carrying bags and coolers out of the unit. (Id. at 19). As for Torres, he
maintains that he saw Stauffer "participating in the shake down[,]" but the only specific act that he
described he saw Stauffer perform was "coming out of F-Unit Building with a large bag of contraband."
(Id. at 18).
The Respondent is correct that even if this Court accepted these allegations as true, they are
insufficient to establish that the Petitioner is entitled to habeas relief. None of the affiants contend that
Stauffer was involved in the search of the Petitioner's cell or witnessed anything regarding the search of
his cell. Their statements demonstrate only that Stauffer was in the F-Unit Building during the
shakedown and assisted generally in the removal of some contraband confiscated from the unit. The
evidence provided by the Petitioner, if credited, does not establish that in his role as DHO that Stauffer
lacked the partiality required by due process or that he was a "witness, investigator, or otherwise
significantly involved[,]" 28 C.F.R. § 541.8(b), in the search of the Petitioner's cell.

4

C.

Certificate of Appealability
28 U.S.C. § 2253 codified standards governing the issuance of a certificate of appealability for

appellate review of a district court's disposition of a habeas petition. Federal prisoner appeals from the
denial of a habeas corpus proceeding are not governed by the certificate of appealability requirement.
United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000) (en banc), abrogated on other grounds by
Gonzalez v. Thaler, 132 S.Ct. 641 (2012); 28 U.S.C. § 2253(c)(1)(B). As such, this Court makes no
certificate of appealability determination in this matter.

II.
For the foregoing reasons, the petition for a writ of habeas corpus will be denied. An appropriate
order follows.

Dated: August 8, 2018

cc:

/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge

Notice by ECF to counsel of record and by U.S. mail to the Petitioner at his address of record

5