Colon v. Ebbert
Filing
9
OPINION. Signed by Judge James P. Jones on 6/21/2018. (slt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
JULIO COLON,
Petitioner,
v.
DAVID EBBERT, WARDEN,
Respondent.
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Case No. 7:17CV00219
OPINION
By: James P. Jones
United States District Judge
Julio Colon, Pro Se Petitioner; Matthew Miller, Assistant United States
Attorney, Roanoke, Virginia, for the Respondent.
Petitioner, Julio Colon, a federal inmate proceeding pro se, filed this Petition
for a Writ of Habeas Corpus under 28 U.S.C. § 2241. Colon contends that he was
convicted of prison disciplinary offenses without due process. Upon review of the
petition and the respondent’s 1 evidence in response thereto, I conclude that the
petition must be dismissed for failure to exhaust administrative remedies.
Colon was incarcerated at United States Penitentiary (“USP”) Lewisburg, in
West Virginia. On June 13, 2016, an investigator there completed an Incident
Report, charging Colon with three prison disciplinary infractions: introduction of
1
As a preliminary matter, at the respondent’s request, I will substitute C.
Ratledge as the respondent. Colon is confined at the United States Penitentiary in Lee
County, Virginia (“USP Lee”), where Ratledge is employed as warden. As Colon’s
immediate custodian, Ratledge is the appropriate respondent to this § 2241 petition. See
28 U.S.C. § 2243; Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004).
any narcotic, use of the mail for an illegal purpose, and use of the telephone for an
illegal purpose.2 The investigation gathered evidence that in March 2016, Colon
had used coded language in telephone conversations with a female acquaintance to
arrange for her to send him fifty N8 Suboxone strips hidden in legal mail. The
attempted transaction was thwarted in the USP Lewisburg mailroom. Investigators
discovered that the law firm listed as the return address on Colon’s incoming legal
mail item was false, opened the envelope, and found the Suboxone strips and other
evidence of Colon’s involvement in the transaction.
Officials first served Colon a copy of the Incident Report on June 13, 2016.
After a suspension of the report for possible criminal prosecution, which was
declined, officials again delivered the Incident Report to Colon on August 9, 2016.
A lieutenant advised Colon of his rights. Colon said he understood those rights,
but declined to make any statement.
A Unit Discipline Committee (“UDC”) reviewed the Incident Report and
held a hearing at which Colon was present. He made no comment. Based on the
seriousness of the charges, the UDC then referred the report to a Disciplinary
Hearing Officer (“DHO”) for further proceedings and advised Colon of his rights
in those proceedings.
2
The undisputed facts summarized here are taken from documentation submitted
by the respondent.
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The DHO conducted a hearing on August 15, 2016. When the DHO asked
Colon if he wished to admit or deny committing the prohibited acts charged in the
report, Colon stated that he accepted full responsibility for his actions and declined
any further comment.
The DHO noted that Colon made no complaints of
procedural errors during the hearing.
Based on the Incident Report and investigation and Colon’s failure to deny
the charged conduct or present any defense, the DHO determined that Colon had
committed the prohibited acts as charged. The DHO then imposed these sanctions:
loss of forty-one days of good conduct time for each offense; sixty days of
disciplinary segregation; the loss of commissary, e-mailing, and telephone
privileges for fifteen months; and noncontact only visitation for fifteen months.
Colon was advised of his right to pursue an administrative appeal of the
DHO’s rulings and was provided a copy of the final DHO report on September 1,
2016. Although prison records indicate that Colon knew of, and had previously
pursued, disciplinary appeals, he did not file an appeal from the DHO’s decision at
issue in this case.
In May 2017, Colon filed his verified § 2241 petition, alleging these claims
for relief: (1) he did not receive twenty-four hour advance written notice of the
charges; (2) he did not have an opportunity to call witnesses or present
documentary evidence in his defense; and (3) he did not receive a copy of the
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written decision by the DHO.
Colon seeks to have his disciplinary action
expunged and his forfeited good conduct time restored.
The respondent has argued for dismissal of the petition, because Colon
failed to exhaust administrative remedies and his claims are without merit. The
court notified Colon of the respondent’s pleading as required by Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975). The court also gave him time to file
affidavits or other documents contradicting the respondent’s evidence or otherwise
explaining his claims.
Colon never responded, and the time allotted for his
response has expired, making the matter ripe for consideration.
II.
Before filing a § 2241 petition about prison disciplinary proceedings, an
inmate must first exhaust available administrative remedies, or show cause for his
failure to do so. See Braden v. 30th Judicial Cir. Ct. of Ky., 410 U.S. 484, 490–91
(1973) (requiring exhaustion in 28 U.S.C. § 2241 matter); McClung v. Shearin, 90
F. App’x 444, 445 (4th Cir. 2004) (unpublished) (federal prisoner challenging
disciplinary action must first exhaust administrative remedies prior to filing § 2241
petition). Exhaustion of administrative remedies may be excused if the inmate
establishes futility. United States v. Strickland, No. 7:98–CR–82–5–F(l), 2004 WL
3414644, at *1 (E.D.N.C. Aug. 9, 2004), aff’d, 126 F. App’x 116, 117 (4th Cir.
2005).
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It is undisputed that Colon had an available administrative appeal from the
DHO’s rulings and that he failed to pursue such an appeal. Colon also has not
presented any evidence that exhaustion would have been futile. Thus, I conclude
that Colon failed to exhaust administrative remedies before filing this habeas
petition and will dismiss the petition on this ground. 3
A separate Final Order will be entered herewith.
DATED: June 21, 2018
/s/ James P. Jones
United States District Judge
3
Furthermore, I also conclude that Colon’s due process claims are without merit.
In prison disciplinary hearings, due process protections are limited: (1) written notice of
the charged violations at least twenty-four hours before the hearing; (2) disclosure of
evidence against the prisoner; (3) the right to call witnesses and present documentary
evidence absent safety concerns; (4) a neutral and detached factfinder; and (5) a written
statement by the fact finder of the evidence relied on and reasons for disciplinary action.
Wolff v. McDonnell, 418 U.S. 539, 559-566 (1974). Colon has presented no
particularized facts disputing the respondent’s evidence that he received all of the
protections outlined in Wolff.
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