Harvey v. Wilson

Filing 11

MEMORANDUM OPINION. Signed by District Judge John A. Gibney, Jr on 2/1/2018. Copy to Pro Se Petitioner. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

GREGORY LEE HARVEY,
Petitioner,
V.

Civil Action No. 3:I6CV915

ERIC WILSON,

Respondent.
MEMORANDUM OPINION

This matter is before the Court on George Lee Harvey's Petition for Writ of Habeas

Corpus pursuant to 28 U.S.C. § 2241 ("§ 2241 Petition," ECF No. 3). Harvey challenges his

prison disciplinary conviction for possessing a cellphone within a correctional institution.

(Mem. Supp. § 2241 Pet. 1-2, ECF No. 3-1.) Respondent filed a Motion to Dismiss, or inthe
Alternative, Motion for Summary Judgment. ("Motion to Dismiss," ECF No. 6.) For the

reasons set forth below. Respondent's Motion to Dismiss will be denied without prejudice.
1. Pertinent Factual and Procedural History

On March 2, 2015, Harvey was an inmate in the Federal Bureau of Prisons. (Mem. Supp.

§ 2241 Pet. 1.) Onthat date, prison officials searched Harvey's assigned cell and discovered a

cell phone in a hidden compartment under the sink. (Mem. Supp. Mot. Dismiss. Ex. 2, at 1, ECF
No. 7-2.)

Harvey was charged with "Possession of a Hazardous Device ... Cellular Phone."

(Mem. Supp. Mot. Dismiss Ex. 4, at 1, ECF No. 7-4.) On March 12, 2015, Disciplinary Hearing
Officer ("DHO") D. Mosley conducted a hearing on the above charge. {Id. at 3.) At the hearing,

Harvey denied guilt and stated, "Ijust moved inthe cell two weeks ago. I know nothing about a

cellphone." {Id. at 1.) At the conclusion ofthe hearing, DHO Mosley found Harvey guilty ofthe

above charge and sanctioned him with, inter alia, the loss of 41 days of good conduct time and

30 days of segregation. {Id. at 3.) On April 28,2015, DHO Mosley executed his Amended
Disciplinary Hearing Officer Report. {Id.) The next day, a copy of the same was provided to
Harvey. {Id.)

While Harvey was serving his term of segregation, Harvey received paperwork pertaining
to the above infraction that included notes from "Lieutenant Starcher, [a] Special Investigative

Security" Officer ("SIS"). (Mem. Supp. § 2241 Pet. 2.) According to Harvey, those notes stated
that"an identifying card used for storing data contained in cellular phones was in an envelope

sent by an outside source to ... George Stallworth[,] who occupied the assigned cell... prior to
the arrival of petitioner at the facility." {Id.) According to Harvey, "George Stallworth admitted
to the SIS Lieutenant that the cellphone actually belonged to him." {Id.)

On April 14, 2015, Harvey appealed his disciplinary conviction. (Mem. Supp. Mot.
Dismiss Ex. 1, Attach. 2, at 1, ECF No. 7-1.) Harvey noted that, "Lieutenant Starcher stated to
this inmate that she had uncovered evidence to establish that the cell phone belonged to

Stallworth, and further evidence to establish that I knew nothing of this cell phone. However,
this crucial information was not discovered by Lieutenant Starcher until after the DHO hearing
was conducted, on or about, March 10, 2015." {Id.)

On May 1, 2015, the Regional Director denied Harvey's appeal. (Mem. Supp. Mot.
Dismiss Ex. 1, Attach. 3, at 1.) In rejecting that appeal, the Regional Director noted that:

[Y]ou allege you did not commit the prohibited act. You claim there was
evidence that could have verified you did not commit the prohibited act. You
failed to provide any information reflecting additional evidence existed to
exonerate you of the charge. The DHO outlined in detail the evidence utilized to
find you committed the prohibited act. Further, in accordance with [BOP
regulations,] 'It is your responsibility to keep your area free of contraband.' In
this case, the contraband was found in a common area of your cell and you are
responsible for all items found in these areas.

m

II. Analysis of Harvey's § 2241 Petition and Respondent's Motion to Dismiss

In his § 2241 Petition, Harvey complains that prison officials refused to use the
information Lieutenant Starcher obtained in her investigation, which revealed the cell phone

belonged to inmate Stallworth. (Mem. Supp. § 2241 Pet. 2.) Harvey requests that the Court

order respondent to show cause why his motion to "RESTOREGOOD-TIME CREDITS and
EXPUNGEMENT of Incident Report No. 2688653" should not be granted. {Id. at 8 (emphasis
in original).)

When an inmate brings a habeas petition to challenge the sufficiency of the evidence

underlying a revocation of his good time credits, the requirements of due process are met when
"the findings of the prison disciplinary board are supported by some evidence in the record."

Superintendent Mass. Corr. Inst. v. Hill, All U.S. 445, 454 (1985). Although this standard is
low, it is balanced by the requirements that prison disciplinary boards,

"may not arbitrarily refuse to considerexculpatory evidence simply because other
evidence in the record suggests guilt." Whitfordv. Boglino, 63 F.3d 527, 536 (7th
Cir. 1995) (quoting Viens v. Daniels, 871 F.2d 1328, 1336 n.2 (7th Cir. 1989)).
And prisoners are entitled to have exculpatory evidence disclosed unless its
disclosure would unduly threaten institutional concerns. Campbell v. Henman,
931 F.2d 1212, 1214-15 (7th Cir. 1991); Chavis v. Rowe, 643 F.2d 1281, 1286
(7th Cir. 1981)

Piggie V. McBride, 111 F.3d 922, 925 (7th Cir. 2002).

Respondent contends that Harvey's § 2241 Petition should be dismissed because there is
some evidence to support Harvey's conviction for possession of a hazardous tool under the

doctrine of constructive possession. (Mem. Supp. Mot. Dismiss 6-7.) In response, Harvey filed
a Motion to Supplement to which he attached what he claims are Lieutenant Starcher's notes

regarding her investigation ofthe cell phone found in Harvey's cell.' (Mot. Supp. Ex. 1, at 3,
ECF No. 9-1.) To the extent the document is what Harvey claims it to be, it supports Harvey's
assertion that Stallworth admitted to ownership of the cellphone found in Harvey's cell. {Id.)
Furthermore, the document indicates that Stallworth's roommate, Timmy whose last name is

unidentified ("LNU"), was sent a SIM card in the mail for the cell phone. {Id.)

Respondent contends that there is no obligation for the DHO to consider new evidence
and these notes are "irrelevant to the analysis of the constructive possession principle that

controls this case. This is evident given that when contraband is found in an inmate's cell, it
constitutes 'some evidence' of the inmate's constructive possession of it as long as relatively few
inmates have access to the area." (Resp. Pet'r's Mot. Supp. 2-3 (citations omitted).) However,

on the present record, it is unclear when prison officials discovered information linking the

cellphone to Stallworth and LNU. To the extent that prison officials had such information prior
to Harvey's hearing on March 12, 2015, it may give rise to a viable procedural due process
claim. Viens, 871 F.2d at 1336 n.2 ("[W]here a prisoner believes he was denied a meaningful

opportunity to contest the charges against him due to a disciplinary board's refusal to consider
evidence or allowthe prisoner access to relevant materials, the challenge is one of procedural

due process rather than sufficiency of evidence."). Given the current record. Respondent's
Motion to Dismiss (ECF No. 6) will be denied without prejudice.

Respondent will be directed to file a further response to the § 2241 Petition within sixty

(60) days of the date of entry hereof Such response shall contain an affidavit from
Lieutenant Starcher, including the relevant timeline, regarding her investigation of Stallworth

and LNU. See Rule 7(a), Rules Governing Section 2254 Cases ("If the petition is not dismissed.

' Although Respondent argues the notes are not authenticated, he has not put forth affirmative
evidence disputing that the document is Lieutenant Starcher'snotes of her investigation.

thejudge may direct the parties to expand the record by submitting additional materials relating

to the petition.")? The response shall also include any pertinent disciplinary records for
Stallworth and LNU related to the possession of a cellphone or a SIM card.
III.

Conclusion

For the reasons stated above, Harvey's Motion to Supplement (ECF No. 9) will be

granted. Respondent's Motion to Dismiss (ECF No. 6) will be denied without prejudice.

Respondent will be directed to file a further response to the § 2241 Petition within sixty (60)
days of the date of entry hereof

An appropriate Orderwill accompany this Memorandum Opinion.

2,llll8
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Richmond, Virginia

JohnA.Gibney,Jr/~7 /

United States DistrictJudge

^Rule 1(b) of the Rules Governing § 2254 Cases permits this Court to apply the Rules
Governing § 2254 Cases to petitions under 28 U.S.C. § 2241. Rule 1(b), Rules Governing
§ 2254 Cases; see Aguayo v. Harvey^ 476 F.3d 971, 976 (D.C. Cir. 2007).