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Robert John Mcnaught, Pro Se v. Duke Terrell

June 2, 2011

ROBERT JOHN MCNAUGHT, PRO SE, PETITIONER,
v.
DUKE TERRELL, RESPONDENT.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge:

MEMORANDUM AND ORDER

Pro se Petitioner Robert John McNaught, currently incarcerated at the Metropolitan Detention Center ("MDC"), a federal facility in Brooklyn, New York, brings this habeas corpus petition, pursuant to 28 U.S.C. § 2241, seeking to have thirteen (13) days good conduct time restored, which would result in a release date of June 4, 2011, rather than June 15, 2011. (See Declaration of Daniel Garcia, "Exh. A".*fn1 ) Petitioner argues that by imposing the loss of good conduct time as a Federal Bureau of Prisons ("BOP") sanction for his alleged insolence, the Respondent unlawfully extended his term in federal custody without providing due process during the disciplinary process. Petitioner invokes the jurisdiction of this court "notwithstanding a pending administrative appeal before the BOP" due to "exigent circumstances," arguing that his original sentence will terminate on June 4, 2011, and the BOP's administrative appeal process "takes several months for resolution."*fn2 (Pet. Mem. Supp. at 1.)

Respondent submits that contrary to Petitioner's allegations, he received all of the due process to which he was entitled at the disciplinary hearing, and that therefore, the Petition should be dismissed with prejudice.

For the reasons set forth below, Petitioner's request for relief is denied.

I. Background

On October 27, 2006, Petitioner was found to have violated supervised release for an earlier conviction and was sentenced to thirty months in federal prison, which he began serving on July 31, 2009. (Exh. A.) On December 6, 2010, he was transferred to Toler House, a Community Corrections Center ("CCC"), located in Newark, New Jersey. (Exh. B.) Prior to the transfer, Petitioner signed a "Community-Based Program Agreement," by which he agreed to "abide by the rules and regulations promulgated by" the CCC to which he would be designated. (Exh. D.) On December 8, 2010, Petitioner signed an acknowledgment indicating he had received the Toler House Resident Handbook (the "Handbook") and agreed to participate in the program and abide by its rules. (Exh. E.) The Handbook provides that "[d]isrespect or insolence towards anyone or the program will not be tolerated and will be documented in an incident report; being insolent toward another individual can result in termination from the program." (Exh. F.) On March 1, 2011, Toler House employment specialist Ms. Murray wrote up an Incident Report charging Petitioner with insolence. (Exhibit H.) The same day, Toler House staff requested Petitioner be remanded to the MDC. (Exhibit I.)

On March 2, 2011, the Incident Report was delivered to Petitioner and he was transferred to the MDC. (See Exhibit B.) Andre Sobers, the Supervisor of Operations at Toler House, was assigned as the CCC investigator. (Decl. of Andre Sobers ¶6.) On March 17, 2011, Sobers conducted an interview of the Petitioner. (Exhibit J.) Based upon the Petitioner's statement and the contents of the incident report, Sobers determined that the Petitioner had been insolent, and due to "the nature and severity of the infraction," Sobers recommended a Community Discipline Committee ("CDC") hearing. (Id.) At the end of the March 17, 2011 interview with Petitioner, Sobers informed Petitioner that he was recommending a CDC hearing, and gave Petitioner a form entitled "Inmate Rights at CDC Hearing." (Exh. L.) On March 18, 2011, immediately prior to the CDC hearing, Petitioner received a "Notice of CDC Hearing," which he initialed in two places, indicating the waiver of his right to a staff representative and that he understood that he had the right to call witnesses at the hearing. (See Exh. M.)

On March 18, 2011, the CDC hearing was conducted by William Mosley, the CDC chairperson. (Exh. K.) The CDC considered the following evidence: (a) the Incident Report and Investigation, (b) the Community Based Program Agreement, (c) the Toler House Resident Handbook Acknowledgement Form, and (d) a language excerpt from the Toler House Resident Handbook pertaining to insolence. (Exh. D-F.) The CDC determined that Petitioner had committed the act of insolence, and recommended a sanction of return to custody.*fn3 (Exh. K at § VI.) Petitioner was informed of the CDC's findings and recommendation, advised of his right to appeal and given a copy of the CDC report. (Garcia Decl. ¶25, Exh. K at p. 2.) The CDC report and supporting documents ("CDC packet") were then forwarded for review to the Community Corrections Manager ("CCM"), Peter Brustman, and finally to the DHO, Daniel Garcia, for certification and sanctioning. (Garcia Decl. ¶26.)

The DHO reviewed the packet and determined that the Petitioner should receive "(a) disallowance of 13 days of good conduct time; and (b) transfer to a more secure facility." (Garcia Decl. ¶27.) The DHO certified that: (1) all phases of the disciplinary hearing had been completed; (2) the findings were based on fact; and (3) the proper procedures had been followed. (Garcia Decl. ¶28.) On April 1, 2011, the DHO completed the "Checklist for CDC Certification," and signed and dated the CDC report. (Garcia Decl. ¶28, see Exh. N, J.)

A letter dated April 11, 2011 advised Petitioner that he was sanctioned by the DHO as noted on the CDC report attached thereto, and that he could appeal the decision to the Regional Office within 20 days from the date on which he received a copy of the report. (See Docket Entry No. 1, p. 14.) In a letter dated April 21, 2011, Petitioner submitted his appeal, requesting the earliest possible review and response.*fn4 (See Docket Entry No. 1, p. 6.)

On May 2, 2011, Petitioner filed the instant petition for a writ of habeas corpus, alleging that he had been denied due process in connection with the investigation and hearing concerning the insolence charge. (See Petition, p. 5, Docket Entry No. 1.) The Petitioner claims he was denied advance written notice of the charge, a reasonable opportunity to call witnesses and present evidence at the hearing, an impartial hearing officer, and a written statement of the disposition, including findings of facts and reasons for the disciplinary action supported by evidence.

The Respondent submits that the Petition should be dismissed because the Petitioner was provided the requirements of due process set forth by the Supreme Court in Wolff v. McDonnell, 418 U.S. 563 (1974).

II. Discussion

A writ of habeas corpus under 28 U.S.C. ยง 2241 is available to a federal prisoner who challenges the execution of his sentence subsequent to conviction. Carmona v. United States ...


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