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Lao v. Schult

February 25, 2010

CHANH CHAN LAO, PETITIONER,
v.
DEBORAH SCHULT, WARDEN, FEDERAL CORRECTIONAL INSTITUTE RAY BROOK, RESPONDENT.



The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

MEMORANDUM DECISION

Petitioner, Chanh Chan Lao, a federal prisoner proceeding pro se, has filed a petition for habeas corpus relief under 28 U.S.C. § 2241. Lao is currently in the custody of the U.S. Bureau of Prisons ("BOP"), incarcerated at the Federal Correctional Institute Ray Brook, New York. Respondent has answered the petition. Lao has not replied.

I. BACKGROUND/ADMINISTRATIVE PROCEEDINGS

Lao is serving a 20-year-prison term following his conviction for various Class C felony drug-related offenses. Lao does not challenge his conviction in this proceeding.

On March 17, 2009, following a two-month-long investigation, Lao received a Disciplinary Incident Report dated March 16, 2009, charging him with assaulting another prisoner on January 15, 2009. The Incident Report was submitted to the Unit Discipline Committee ("UDC"), which held an initial hearing on March 19, 2009. The UDC forwarded the Incident Report to a Discipline Hearing Officer ("DHO") in order to enable the imposition of greater sanctions than those available to the UDC. The DHO held a disciplinary hearing on March 23, 2009. In his report, dated and delivered March 24, 2009, the DHO found Lao guilty of a lesser offense. As punishment, the DHO disallowed seven days of Lao's good time, imposed 15 days of disciplinary segregation, forfeited 20 days of non-vested good time, and restricted Lao's commissary and visiting privileges for 180 days.*fn1

Lao filed a Request for Administrative Remedies dated April 9, 2009, with the Northeast Regional Office, challenging the DHO report.*fn2 The Northeast Regional Office received and filed the request on April 15, 2009, and rejected it as untimely the next day.*fn3 Lao appealed the rejection to the Central Office on April 23, 2009.*fn4 The Central Office received Lao's appeal on May 5, 2009, and, concurring with the Northeast Region's rationale, rejected and returned Lao's appeal on May 20, 2009.*fn5 Lao timely filed his petition for relief in this Court on June 2, 2009.

II. GROUNDS RAISED/DEFENSES

In his petition, Lao asserts a single substantive ground: that Respondent violated Bureau of Prisons policy by not serving Lao with the incident report until more than 60 days after the incident. Respondent contends that Lao has not exhausted his administrative remedies.

III. DISCUSSION

A. Exhaustion

Respondent contends that, because Lao did not timely file his appeal with the Northeast Regional Office, he has not exhausted his administrative remedies. Under controlling Second Circuit law, a federal prisoner must exhaust his intra-BOP administrative remedies before seeking habeas relief under § 2241.*fn6 This procedural default may only be excused upon a showing of good cause and prejudice.*fn7

Lao has not traversed Respondent's answer. 28 U.S.C. § 2248 provides: The allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true.

Ordinarily, under § 2248, when there is no denial of the Respondent's allegations in the answer, or the denial is merely formal unsupported by an evidentiary basis, the court must accept Respondent's allegations.*fn8 When no traverse is filed and no evidence offered to contradict the allegations of the return, they must be accepted as true.*fn9 In this case, whether or not Lao's administrative appeal was submitted timely may be determined from evidence in the record.*fn10

In rejecting and returning Lao's appeal, both the Northeast Regional Office and Central Office simply stated:

YOUR APPEAL IS UNTIMELY. REGIONAL APPEALS (BP-10) MUST BE RECEIVED WITHIN 20 DAYS OF THE WARDEN/CCM RESPONSE OR RECEIPT OF THE DHO ...


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