United States District Court, D. Minnesota
Johnny Q. Stephens, Petitioner,
Denese Wilson, Warden, Respondent
Johnny Q. Stephens, Pro se, Sandstone, MN.
David W. Fuller, United States Attorney's Office, Minneapolis, MN, for Respondent.
REPORT AND RECOMMENDATION
HILDY BOWBEER, United States Magistrate Judge.
This matter is before the Court on Petitioner Johnny Q. Stephens' Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 [Doc. No. 1]. Respondent Denese Wilson opposes the Petition [Doc. No. 7]. The case has been referred to this Court for Report and Recommendation under 28 U.S.C. § 636 and Local Rule 72.1. For the reasons set forth below, the Court recommends that the Petition be denied, and this action be dismissed with prejudice.
On August 11, 2011, in the United States District Court for the District of South Carolina, Petitioner Johnny Q. Stephens pled guilty to one count of conspiracy to possess with intent to distribute and distribution of 5 kilograms or more of cocaine and 280 grams or more of cocaine base. (Plea, United States v. Johnny Quinton Stephens, No. 4:10-cr-01040-TLW (D.S.C. Aug. 11, 2011), ECF 114.) On October 18, 2011, Petitioner was sentenced to 100 months, followed by 5 years of supervised release. (J. & Commitment, United States v. Johnny Quinton Stephens, No. 4:10-cr-01040-TLW (D.S.C. Oct. 18, 2011), ECF 130.) Petitioner is currently confined at FCI Sandstone, Minnesota, with a projected release date of November 2, 2018, via good conduct time release. (Buege Decl. ¶ 3 [Doc. No. 8].)
On July 16, 2013, Officer S. Pinckney at FCI Williamsburg, South Carolina, conducted a search of cell 214, which belonged to Petitioner and another inmate at the time. (Id. ¶ 4; Incident Report at 1 [Doc. No. 8-1].) During this search, Officer Pinckney reached behind the lower bed and found a Verizon cell phone attached to locker 314L by magnets, pushed up against the frame of bed 214. (Incident Report at 1.) Petitioner was assigned to this bed. (Buege Decl. ¶ 4.) Later that day, Officer Pinckney wrote Incident Report 2468945, charging Petitioner with Possession of a Hazardous Tool (the cell phone), a Code 108 violation of Bureau of Prisons (BOP) policy. (Buege Decl. ¶ 5; Incident Report at 1.) Petitioner's cell mate was also charged with the same violation. (Buege Decl. ¶ 5.)
On July 17, 2013, the investigating staff member, Lieutenant J. Brown, provided a copy of the Incident Report to Petitioner and advised him of his rights. (Id. ¶ 6; Mitchell Decl. Attach. A at 1 [Doc. No. 9-1].) Petitioner stated he understood his rights and the Incident Report as written, and that he had been set up by another inmate. (Buege Decl. ¶ 6.) Petitioner did not request any witnesses. (Id.)
Based on Officer Pinckney's statements in the Incident Report, Lieutenant Brown concluded the incident to be true and justified to support the Code 108 charge. (Id. ¶ 7.) Petitioner was placed in the Special Housing Unit, and the Incident Report was referred to the Unit Discipline Committee (UDC) for further review. (Id.)
On July 17, 2013, Petitioner appeared before the UDC. (Buege Decl. ¶ 9.) He was advised of his rights, stated that another inmate had set him up, and denied using the cell phone. (Id.) Due to the seriousness of the charge, the UDC referred the matter to the DHO for further hearing. (Id.) The UDC recommended that if Petitioner was found to have committed the prohibited act by the DHO, the DHO should impose the sanctions of 30 days loss of good conduct time credit, 30 days of disciplinary segregation, and 180 days loss of telephone, commissary, and visiting privileges. (Id.) That same day, staff member T. Page provided Petitioner with two forms: (1) Inmate Rights at Discipline Hearing, which included the opportunity to have a staff representative, to call witnesses, and to present evidence; and (2) Notice of Discipline Hearing before the DHO. (Buege Decl. ¶ 10; Id. Attach. C [Doc. No. 8-1].) Petitioner did not request any staff representative or witnesses. (Buege Decl. ¶ 10.)
The DHO hearing occurred on July 24, 2013. (Mitchell Decl. ¶ 3 [Doc. No. 9].) Petitioner stated that he understood his rights, had no documentary evidence to present, did not request any witnesses, and declined the services of a staff representative to assist him at the hearing. (Id. Attach. A at 2.) Plaintiff also stated:
o He had only been at the facility for about a ...