Allen v. Fox

Filing 47

ORDER overruling objections and adopting 33 Report and Recommendation. Signed by District Judge Thad Heartfield on 3/19/18. (tkd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
ISAAC KELVIN ALLEN

§

VS.

§

JOHN B. FOX

§

CIVIL ACTION NO. 1:13cv296

ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Isaac Kelvin Allen, proceeding pro se, filed the above-styled petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. The Court previously referred this matter to the
Honorable Keith F. Giblin, United States Magistrate Judge, for consideration pursuant to applicable
orders of this court. The Magistrate Judge has submitted a Report and Recommendation of United
States Magistrate Judge recommending that the petition be denied.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. Petitioner filed objections to the Report and
Recommendation. The court must therefore conduct a de novo review of the objections in relation
to the pleadings and the applicable law.
Petitioner complains of a prison disciplinary conviction regarding incident report 2192106,
as well as asserting funds are being improperly withheld from his inmate trust account pursuant to
the Inmate Financial Responsibility Program (“IFRP”). The Magisrate Judge concluded petitioner
was not denied due process of law in connection with his prison disciplinary conviction. He also
concluded petitioner’s claim that funds should not be withheld from his inmate trust account, which
was based on his assertion that the trial court’s restitution order was invalid and erroneous, could not
be asserted in a Section 2241 proceeding.
IFRP
With respect to petitioner’s claim regarding funds being withdrawn from his inmate trust
account under the IFRP, the court agrees with the Magistrate Judge’s conclusion. This type of claim
may not be asserted in a Section 2241 petition.

Incident Report 2192106
In the prison disciplinary proceeding regarding incident report 2192106, petitioner was
convicted of using email to further criminal activity. Petitioner was accused of participating in a
scheme to defraud the State of Massachusetts through identity theft. Following a hearing, he was
convicted of the offense with which he was charged. An administrative appeal filed by petitioner
was granted based on the determination that the Discipline Hearing Officer’s (“DHO”) report did
not identify how the evidence against petitioner applied to the particular disciplinary code he was
accused of violating.
After a rehearing, petitioner was again convicted of the offense with which he was charged.
Petitioner complains he was not notified in writing that he had been granted a rehearing, but was
instead summoned to his new hearing. When he asked the DHO why a rehearing was being
conducted, she only stated it was to recode the offense and refused to explain further. Petitioner
states he assumed that his request in his administrative appeal to change the offense with which he
was charged had been accepted. He then began to offer a defense as to why he had personal
information for other people in his cell and offered his Presentence Report as evidence explaining
why he had the information.1 Petitioner complains that the Bureau of Prisons’ (“BOP”) rules do not
include procedures for conducting a rehearing and asserts it violated due process to order a rehearing
just to correct a clerical error, even if the error is fatal to the disciplinary conviction.
As the Magistrate Judge stated, petitioner has provided no authority for his contention that
the BOP’s regulations regarding rehearings, or the lack of regulations regarding special procedures
for rehearings, violated due process, or demonstrated that ordering a rehearing just to correct a
clerical error violated due process. Nor has be provided any authority in his objections. As a result,
it cannot be concluded that conducting a rehearing regaring incident report 2192106 violated
petitioner’s right to due process.

1

In his objections, petitioner states it was the DHO who introduced the Presentence Report into evidence.
Regardless of how the Report was introduced into evidence, petitioner has provided no authority for the proposition
that it was improper to refer to the contents of the Report during the hearing.

Petitioner also complains he did not receive 24 hours notice of his rehearing. The Magistrate
Judge stated petitioner was entitled to 24 hours advanced written notice of the charge against him,
rather than 24 hours notice of when the disciplinary rehearing would be held. The Magistrate Judge
found petitioner had been notified of the charge against prior to his first hearing and, further, that
petitioner did not identify any prejudice he suffered as a result of not having 24 hours advance notice
of his rehearing.
In his objections, petitioner again complains of not receiving 24 hours notice of the rehearing.
However, the court agrees that pursuant to Wolff v. McDonnell, 418 U.S. 539 (1974), petitioner was
only entitled to notice of the charge against him at least 24 hours prior to the hearing, not 24 hours
notice of when the hearing would be held. Petitioner had 24 hours notice of the charge against him
well in advance of when the rehearing was held. The charge against petitioner was not changed
between the date the original hearing was held and the date of the rehearing.
Petitioner also states he suffered prejudice as a result of not receiving 24 hours notice of the
rehearing because this prevented him from asking in advance of the hearing for permission to have
Bruce Canestrata testify on his behalf. In the report concerning the original hearing, the DHO denied
petitioner’s request to have Mr. Canestra called as a witness because he was involved in the incident
and was part of the investigation. The DHO’s report for the rehearing does not indicate petitioner
attempted to call any witnesses. Petitioner disputes this, stating he asked the DHO to have Mr.
Canestra testify at the rehearing, but states the DHO refused the request because it had not been
made in advance.
Accepting petitioner’s statement as true, petitioner’s failure to receive 24 hours notice of the
rehearing did permit the DHO to overrule his request for a witness on procedural grounds. However,
petitioner has not demonstrated it is likely the DHO would have come to a different determination
regarding having Mr. Canestrat testify at the rehearing if petitioner had been able to make his request
in advance. Moreover, petitioner admits in his objections that he does not know whether Mr.
Canestra would have provided favorable testimony, stating that Mr. Canestra would have been able
to either confirm or deny petitioner’s contentions. As a result, petitioner has not demonstrated he

suffered prejudice as a result of not receiving 24 hours notice of the rehearing because he has not
shown that the failure to receive such notice had a “substantial and injurious effect or influence” on
the result of the disciplinary proceeding. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993).
Finally, petitioner asserts he was improperly denied the opportunity to have Bruce Canestra
testify on his behalf at either the hearing or the rehearing. As stated above, in the report concerning
the original hearing, the DHO stated Mr. Canestra could not be called because he was involved in
the incident and was part of the investigation. The DHO’s report for the rehearing does not indicate
petitioner attempted to call any witnesses. Petitioner disputes this statement.
As the Magistrate Judge stated, while the Supreme Court recognized in Wolff that inmates
charged with disciplinary offenses should be able to call witnesses to testify on their behalf, the right
is not unlimited as prison officials can refuse a request for a witness if calling the witness would
create a risk of reprisal or undermine authority. The Magistrate Judge found that the reason
proffered by the DHO at the original hearing for not permitting Mr. Canestra to testify did not violate
petitioner’s right to due process. As Mr. Canestra was allegedly involved in the same conduct that
led to the charge against petitioner, the court agrees with the Magistrate Judge. There is no
indication the DHO who conducted the rehearing would have come to a different conclusion if
petition had made his request in advance of the rehearing.2 Further, as stated above, petitioner states
in his objections that Mr. Canestra could have either confirmed or denied petitioner’s assertion of
innocence. As it is not clear that Mr. Canestra would have provided favorable testimony, it cannot
be concluded that the failure to permit him to testify resulted in prejudice.3

2
Petitioner has submitted documents he states demonstrates Mr. Canestra was determined not to be a
participant in the scheme prior to the date on which the evidentiary hearing was held. The documents petitioner
submits are not as conclusive as he asserts. As a result, petitioner has failed to demonstrate it is likely the DHO
would have permitted Mr. Canestra to testify at the rehearing even if petitioner had made his request in advance.
3

Petitioner also asserts that documents he was provided in discovery, which were not referred to by the
Magistrate Judge, support his contention that he did not participate in the scheme to defraud. Petitioner did not
assert insufficiency of the evidence as a ground for review in his petition. Moreover, the DHO’s report concerning
the rehearing demonstrates there was some evidence of petitioner’s guilt. Some evidence of guilt is all that is
required to withstand on federal habeas review a challenge to the sufficiency of the evidence in a prison disciplinary
proceeding. Superintendent, Massachusetts Correctional Institution v. Hill, 472 U.S. 445 (1983).

Incident Report 2438429
In his objections, petitioner complains that the Magistrate Judge for failed to address his
contentions regarding his conviction in the disciplinary proceeding regarding incident report
2438429. This incident report was first mentioned in a motion for leave to amend petitioner filed
early in this proceeding. In that case, petitioner was convicted of using the telephone for abuses
other than criminal activity. He states that because of a fatal error made by the author of the incident
report, a reviewing official ordered that the “discipline process begin anew.” Petitioner contends this
meant that the entire original report was void and that the charging officer was required to rewrite
the original report with the error removed. Petitioner contends that because this maneuver is not
outlined or authorized in any BOP policy, it is “ultra vires,” and violated his right to due process.
He contends that as the incident report was rewritten, it was not written within 24 hours after the
staff became aware of it, as required by prison regulations.
Again, petitioner has cited no authority for the proposition that beginning the discipline
process anew through the use of a rewritten incident report violated his right to due process. The
applicable procedural due process protections regarding a prison disciplinary hearing were set forth
by the Supreme Court in Wolff, supra. Petitioner’s complaints regarding the procedures used with
respect to incident report 2438429 do not demonstrate that Wolff was violated. Further, while
petitioner contends the procedures used concerning this incident report violated prison regulations,
a violation of prison policies does not constitute a violation of due process or the Constitution.
Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996). Finally, petitioner has not shown how the
rewriting of the incident report prejudiced his ability to defend against the report or resulted in his
being confused as to the nature of the charge against him. As a result, petitioner’s challenge to his
conviction regarding incident report 2438429 is without merit.
ORDER
Accordingly, petitioner’s objections are OVERRULED.

The findings of fact and

conclusions of law of the Magistrate Judge are correct and the report of the Magistrate Judge is
ADOPTED. A final judgment will be entered in accordance with the recommendation of the

Magistrate Judge.
SIGNED this the 19 day of March, 2018.

____________________________
Thad Heartfield
United States District Judge