AVERN COHN, District Judge.
This is a
Petitioner was convicted in the United States District Court for the Central District of Illinois of conspiracy to create and possess counterfeit securities. On May 14, 2012, Petitioner was sentenced to 60 months in prison, followed by three years of supervised release.
On April 22, 2015, federal officials transferred Petitioner to a Salvation Army residential re-entry center (RRC or "the center") in Chicago. On April 23, 2015, Petitioner signed an agreement to inform staff at the RRC of his whereabouts at all times. On the same day, Petitioner also signed a "community based program agreement" in which he acknowledged that, while a resident of a community corrections center or work release program, he would be required to abide by the rules and regulations promulgated by such program. On June 15, 2015, Petitioner was placed on home confinement.
On June 29, 2015, Petitioner failed to report to a pre-employment class at the Chicago Urban League, and on June 30, 2015, he arrived one hour late for his class at the Urban League. Consequently, a senior case manager filed an incident report, charging Petitioner with a violation of Code 102 (escape without return or return after four hours).
The incident was described as follows:
During the subsequent investigation, Petitioner maintained that the incident was "just a misunderstanding."
The incident report was referred to the Center Discipline Committee (CDC) for review and a hearing,
The CDC found Petitioner guilty, as charged, of escape. In reaching this decision, the CDC stated:
On August 27, 2015, the discipline hearing officer (DHO) certified the CDC's report and issued sanctions. Petitioner was deprived of forty-one days of good conduct time, and he forfeited forty-nine days of non-vested good conduct time. In addition, Petitioner was denied an early release date for his participation in the Residential Drug Abuse Treatment Program, and his provisional release date of November 23, 2015, was changed to January 15, 2017.
Petitioner appealed the disciplinary action to the North Central Regional Office of the Federal Bureau of Prisons. On November 17, 2015, the regional director denied Petitioner's appeal. Apparently, at approximately the same time, Petitioner was transferred to the Federal Correctional Institution in Milan, Michigan (FCI-Milan).
On February 9, 2016, Petitioner signed and dated his habeas corpus petition, and on February 17, 2016, the Clerk of the Court filed the petition. Petitioner alleges that he is unlawfully detained and was deprived of his liberty due to a miscommunication with administrators. He maintains that the mis-communication resulted in excessive punishment.
Title 28 U.S.C. § 2241 grants federal district courts jurisdiction over writs of habeas corpus for state prisoners only where they allege they are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2241(c)(3). Title 28 U.S.C. § 2241 "is reserved for challenges to the execution of a sentence, such as the computation of parole or sentence credits."
Respondent first says the petition should be dismissed because Petitioner failed to exhaust administrative remedies for his claims. Federal prisoners ordinarily must exhaust administrative remedies for their claims before filing a § 2241 habeas corpus petition.
In this case, Petitioner appealed to the Regional Director of the Bureau of Prisons, but he failed to appeal the Regional Director's decision to the General Counsel before filing his habeas petition. He alleges, however, that he received the Regional Director's response to his complaint after the thirty-day deadline expired for appealing to the General Counsel. He also says that the delay in receiving the Regional Director's response was the result of negligence by prison officials and the fact that he was in transit from a facility in Chicago to FCI-Milan at the time.
The habeas exhaustion requirement is not "statutorily required,"
Petitioner first says that the disciplinary process was unlawful because sanctions were imposed on him without some evidence that he escaped from custody. He says that he was issued a pass by the RRC to attend classes at the Urban League in Chicago, but after calling the center to sign out for the classes on June 29, 2015, he could not obtain car fare to reach the Urban League. He admits that he waited until after his pass ended to call the RRC and sign back in, but he contends there was no evidence that he left his house. As for June 30, 2015, Petitioner claims that he was merely one hour late in arriving at the Urban League. He argues that the facts did not support an escape charge because he accounted for his whereabouts and he reacted to circumstances beyond his control.
"Some evidence" must support a disciplinary committee's decision to revoke good time credits. However, on review a court is not required to weigh the evidence or to make an independent assessment of the credibility of witnesses.
Petitioner was charged with violating Code 102, which is "[e]scape from escort; escape from any secure or non-secure institution, including community confinement; escape from unescorted community program or activity; escape from outside a secure institution." 28 C.F.R. § 541.3, Table 1.
In his second claim, Petitioner next says that the Bureau of Prisons sanctioned him in violation of his rights to due process and equal protection of the law. More specifically, Petitioner asserts that he was improperly charged with escape, that the evidence was insufficient, and that the incident was just a misunderstanding.
The Court has already determined that "some evidence" supported the DHO's decision. Thus, Petitioner was not improperly charged with escape. To the extent Petitioner is challenging the procedures used to find him guilty of the charge, his claim lacks merit for the following reasons.
The Fifth Amendment to the United States Constitution provides in relevant part that "no person shall . . . be deprived of life, liberty, or property, without due process of law." U.S. CONST. amend V. Due process in prison disciplinary proceedings requires: (1) written notice of the charge at least twenty-four hours before the disciplinary hearing; (2) an opportunity to call witnesses and to present documentary evidence at the hearing; and (3) a written statement of the evidence relied on and the reasons for the disciplinary action.
Here, Petitioner was given written notice of the charge at least twenty-four hours before the hearing on the charge. He was also given an opportunity to call witnesses at the hearing, but he waived the right. He has not asserted that he was denied an opportunity to present any documentary evidence. Finally, he was provided a written statement of the evidence relied on and the reasons for the disciplinary action. Based on the record, the due process protections outlined in
Petitioner nevertheless contends that an uncertified DHO named Felicia McClellon presided over his hearing in violation of 28 C.F.R. § 541.8. Petitioner appears to be relying on an outdated version of the regulation, which
The current regulation, however, requires only that the DHO "be an impartial decision maker who was not a victim, witness, investigator, or otherwise significantly involved in the incident." 28 C.F.R. § 541.8(b). Petitioner has not challenged McClellon's ability to be impartial, and her report indicates that E. Alexander was the DHO who certified the CDC's report and imposed the sanctions against Petitioner.
Petitioner further says that his right to equal protection of the law was violated during the prison disciplinary proceedings. A plaintiff asserting an equal protection claim generally must assert that he or she suffered class-based discrimination.
Petitioner has not identified a protected class to which he belongs, and, even though he asserts that the sanctions imposed on him would not be imposed on another inmate, he has not shown that he was treated differently from a similarly situated inmate. His "[c]onclusory allegations, without evidentiary support, do not provide a basis for habeas relief."
In his third claim, Petitioner says that the facts were not properly investigated or reported. He contends that federal officials allowed the disciplinary process to proceed without justification or recommendation for further investigation despite the lack of evidence against him.
When reviewing the charge against Petitioner, the CDC considered information obtained from the Urban League and a field representative. The CDC also relied on Petitioner's admissions at the hearing before the CDC. Petitioner admitted at the hearing that he signed out of his residence on June 29, 2015, but did not attend class at the Urban League. He also admitted that he did not report his absence and that he called in when his pass expired. He conceded that he should have informed staff of his whereabouts, but failed to do so. Response to Pet. for Writ of Habeas Corpus, Doc. 5, Ex. 8, page 2. In light of Petitioner's admissions and the other evidence against him, there was no need for further investigation, and, as noted above, the evidence justified the charge. Habeas relief is not warranted on this ground.
In his fourth and final claim, Petitioner says that he was deprived of a liberty interest in violation of his right to due process when federal officials removed him from the RRC and sent him to an administrative-level prison in Chicago.
The Supreme Court has rejected the notion that "
In short, Petitioner was not deprived of a protected liberty interest when he was sent back to prison and his right to due process was not violated by the transfer.
For the reasons given above, Petitioner has failed to show that he "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Furthermore, the challenged decision was not arbitrary, capricious, or an abuse of discretion under 5 U.S.C. § 706(2)(A).
Accordingly, the petition is DENIED.
SO ORDERED.
28 C.F.R. § 541.3, Table 1. Because Petitioner escaped for more than four hours, he was charged with violating Code 102.
