McZilkey v. Chandler
Filing
8
Memorandum Opinion and Order...the Court dismisses Petitioner's petition for a writ of habeas corpus pursuant to 28 USC 2241 as moot and denies a certificate of appealability. (Ordered by Senior Judge Terry R Means on 9/26/2016) (wrb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
DARYL MCZILKEY,
Petitioner,
VS.
RODNEY W. CHANDLER, Warden,
FCI-Fort Worth,
Respondent.
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Civil Action No. 4:15-CV-061-Y
OPINION AND ORDER
Before the Court is petitioner Daryl McZilkey’s petition for
a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. After
having considered the petition and relief sought by Petitioner, the
Court has concluded that the petition should be dismissed as moot.
I.
Factual and Procedural Background
Petitioner is serving a 180-month term of imprisonment on his
2008 conviction in the Southern District of Georgia for possession
with intent to distribute 5 grams or more of methamphetamine.
(Resp’t’s App. 8-9, ECF No. 7.) By way of this petition, Petitioner
challenges a 2012 disciplinary proceeding conducted at the Federal
Correctional Institution in Manchester, Kentucky (FCI-Manchester),
and the resultant sanctions, including the loss of 41 days of
accrued good-conduct time. (Id. at 3.) Petitioner was charged in
Incident Report No. 2324661 with possession of a hazardous tool,
cigarettes, and snuff, a code 108 violation; and being in an
unauthorized area with a member of the opposite sex, a code 221
violation. (Id. at 1-2.) Following a disciplinary hearing on July
19, 2012, the disciplinary hearing officer (“DHO”) found Petitioner
in violation of the prohibited acts. (Id. at 2-3.) Petitioner
appealed
the
DHO’s
decision
on
the
grounds
that
he
was
in
possession of tobacco and snuff but never in possession of a cell
phone, as alleged in the DHO’s reasons for the action taken, and
never in an unauthorized area with a person of the opposite sex.
(Pet. Attachs., ECF No. 1.)
Respondent has provided the declaration of James Catron, a
Regional Discipline Hearing Administrator for the Federal Bureau of
Prison
(“BOP”)’s
violations
have
South
been
Central
reversed
Region,
and
the
confirming
41
days
of
that
good
the
time
disallowed on July 19, 2012, have been restored. (Resp’t’s App. 3,
ECF
No.
7.)
A
“reissued
incident
report”
was
provided
to
Petitioner, and on April 17, 2015, a rehearing was held. Petitioner
was
found
to
have
committed
the
prohibited
act
of
being
in
possession of a nonhazardous tool or item, tobacco, a code 331
violation. (Id.) Among other penalties, he was sanctioned with
disallowance of 13 days of good time. (Id. at 3.) Nothing in the
record suggests that Petitioner appealed the DHO’s decision on
rehearing.
Respondent asserts that the petition has been rendered moot.
The
Court
agrees.
The
BOP
has
reexamined
the
disciplinary
proceedings, withdrawn the sanction of disallowing 41 days of
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Petitioner’s good conduct time, and expunged the incident report
from his record. As there is no longer any relief for the Court to
award, the petitioner should be dismissed as moot.
For the reasons discussed, the Court DISMISSES Petitioner’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241
as moot and DENIES a certificate of appealability.
SIGNED September 26, 2016.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
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