Before the court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. The petition has been fully briefed and is ripe for consideration.
At the time of the incident that is the subject of the instant petition, Petitioner, Yorie Von Kahl, was an inmate at the United States Penitentiary at Lewisburg, Pennsylvania (USP-Lewisburg).
Petitioner states that on December 31, 1992 he received a disciplinary infraction from USP-Lewisburg officials, charging him with possession of a sharpened instrument. Following a January 12, 1993 prison disciplinary board hearing, Petitioner was found guilty of the charge and sanctioned to a term of thirty days in administrative segregation and forfeiture of thirty days statutory good time credits.
Kahl claims that he was denied due process during the administrative misconduct proceedings because the penitentiary officials: (1) did not provide him with adequate notice of the charge; (2) failed to appoint an appropriate investigating officer and conduct an adequate investigation; (3) improperly placed him in administrative detention; (4) refused to allow him an opportunity to call witnesses; and (5) failed to meet their burden of proof during his hearing. Petitioner also claims that he received ineffective assistance from a prison staff representative. Petitioner seeks to have the disciplinary charge expunged from his record and to have his forfeited good time credits restored.
Respondent asserts that the habeas petition should be denied since Petitioner did not fully exhaust his administrative remedies. Alternatively, he argues that Petitioner's claims lack merit. The court will discuss Respondent's arguments seriatim.
The Bureau of Prisons (BOP) has established a multi-tier system whereby a federal inmate "may seek formal review of a complaint which relates to any aspect of his imprisonment." See 28 C.F.R. §§ 542.10-542.16 (1987). If an inmate is dissatisfied with the outcome of a disciplinary hearing, he may file an appeal to the BOP's Regional Director. An inmate who is displeased with the Regional Director's decision may file an appeal with the General Counsel. The parties do not dispute that Petitioner filed timely, unsuccessful appeals with both the Regional Director and the General Counsel following the outcome of his disciplinary hearing.
However, Respondent argues that Petitioner raised only one of his present claims in the appropriate administrative forum. Since the BOP was not afforded an opportunity to review the other purported errors alleged to have occurred during Petitioner's disciplinary hearing, Respondent insists that his instant petition should be dismissed as premature.
Petitioner acknowledges that his pro se appeal to the Regional Director contained only one of the claims in the case at bar. However, after filing a pro se appeal to the General Counsel, Petitioner, with the assistance of legal counsel, filed a supplemental brief which raised all of the instant claims. Petitioner notes that the supplemental brief was submitted on April 16, 1993, approximately two months prior to the date of the General Counsel's decision. Petitioner argues that he has exhausted his administrative remedies since each of the instant claims was presented to and reviewed on the merits by the General Counsel.
As indicated above, it is undisputed that Petitioner failed to present all of his instant claims to the Regional Director. However, all of his claims were raised in the subsequent appeal to General Counsel and apparently were addressed on the merits. Thus, it would be futile to require Petitioner to file a new administrative appeal to the Regional Director containing claims which already have been denied by a higher tribunal, i.e., the General Counsel. Furthermore, at this point, an appeal to the Regional Director most likely would be dismissed as untimely. See 28 C.F.R. §§ 542.13(b), 542.15. Therefore, this court rejects Respondent's exhaustion argument and will review the merits of Petitioner's allegations.
II. The Merits of Petitioner's Claims
Petitioner argues that he was not afforded due process in the disciplinary proceedings in several respects. Though all of his claims ultimately lack merit, Petitioner has raised some complex legal issues. As will be discussed in greater detail below, the affidavits and briefs in support and opposition to the instant petition raise several factual disputes.
However, this court is persuaded that, when viewed in light of the proper legal standards, these factual disputes are not material and do not preclude disposition of the instant petition without an evidentiary hearing.
This court previously summarized the basic principles of a Fifth Amendment due process analysis:
The fifth amendment of the United States Constitution provides, in part, that no person shall "be deprived of life, liberty, or property, without due process of law . . . ." The Supreme Court has held that application of the identical provision of the fourteenth amendment requires a two-part analysis. "We must first ask whether the asserted individual interests are encompassed within the Fourteenth Amendment's protection of 'life, liberty or property'; if protected interests are implicated, we then must decide what procedures constitute 'due process of law.'"
Frankenberry v. Williams, 677 F. Supp. 793, 795-96 (M.D. Pa.) (Rambo, J.) (quoting Ingraham v. Wright, 430 U.S. 651, 672, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977)), aff'd without op., 860 F.2d 1074 (3d Cir. 1988).
Petitioner argues that he has a due process interest in both his good time credits and in remaining in the general prison population, as opposed to being held in disciplinary or administrative segregation. This court agrees with this phase of Petitioner's argument. While the due process clause of the Constitution does not create such liberty interests, see Wolff v. McDonnell, 418 U.S. 539, 556-57, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), the relevant federal statutes and regulations do create such an interest. See Young v. Kann, 926 F.2d 1396, 1399 (3d Cir. 1991) (a federal prisoner "has a constitutionally protected liberty interest in good time credit"); Frankenberry, 677 F. Supp. at 796 (federal regulations provide an inmate with a liberty interest in remaining in general prison population and in accumulating good time credits). Thus, the court agrees with Petitioner's general premise that his disciplinary hearing had to comply with due process; where the court disagrees with Petitioner is regarding exactly what process was due in his disciplinary proceedings.
The seminal case detailing "what procedures constitute 'due process of law'" in the context of prison disciplinary proceedings is Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). In Wolff, the United States Supreme Court stated that, even where an inmate has a constitutionally protected liberty interest in good time credits, prison disciplinary proceedings in which those credits may be taken away need not afford an inmate the full panoply of rights afforded to a defendant in a criminal prosecution. Id. at 556-57. "One cannot automatically apply procedural rules designed for free citizens in an open society, or for parolees or probationers under only limited restraints, to the very different situation presented by a disciplinary proceeding in a  prison." Id. at 560. Rather, a prisoner is entitled to only those procedures necessary to assure that his protected interest "is not arbitrarily abrogated." Id. at 557.
In Wolff, the Supreme Court stated that an inmate subject to a prison disciplinary proceeding must be afforded the following five due process safeguards: (1) the right to appear before an impartial decision-making body; (2) written notice of the charges 24 hours in advance of the disciplinary hearing; (3) an opportunity to call witnesses and present documentary evidence, provided the presentation of such does not threaten institutional safety or correctional goals; (4) assistance from an inmate representative if the charged inmate is illiterate or if complex issues are involved; and (5) a written decision by the factfinder as to the evidence relied upon and the rationale behind the disciplinary action. Id. at 563-72. Subsequently, the Supreme Court also has required that there be "some evidence" which supports the disciplinary tribunal's conclusion. Superintendent, Massachusetts Correctional Institution v. Hill, 472 U.S. 445, 453-56, 86 L. Ed. 2d 356, 105 S. Ct. 2768 (1985).
Since Wolff, the Federal Bureau of Prisons has established various regulations detailing standards and procedures for the conduct of inmate disciplinary proceedings. See 28 C.F.R. § 541.2 et seq. While the regulations substantially track the procedures outlined in Wolff, Young, 926 F.2d at 1404 ("the procedures codified at 28 C.F.R. § 541.10-541.20 largely track the due process requirements established in Wolff"); Frankenberry, 677 F. Supp. at 796 (same), in some respects they go beyond what the due process clause itself requires. These due process requirements and the applicable federal regulations form the backdrop against which Petitioner's claims must be analyzed.
A. Ineffective Notice
Petitioner claims that he received ineffective notice of the disciplinary charge against him. Specifically, Petitioner states that he was "handed a copy of the Incident Report without more" moments before he was placed in administrative detention. (Supp. Br. of Pet'r at 13.)
In context, Petitioner's claim that the notice provided him was inadequate is clearly unpersuasive.
First, Petitioner clearly was aware of the precise nature and basis for the charges against him. The disciplinary charges against Petitioner resulted from a shakedown search of his cell conducted by Security Officer Gary Orwig at approximately 6:25 p.m. on December 29, 1992. Orwig "confronted Mr. Kahl with his accusation of possession" of the metal object. (Supp. Br. at 2.) It is undisputed that at 7:50 p.m. on the evening of the incident, Lieutenant Hernandez handed Petitioner a written copy of the incident report. (Id.) Petitioner concedes that at the same time Hernandez showed him a photocopy of the metal object alleged to be in Petitioner's locker. (Id.) Approximately 36 hours later, Petitioner had an initial hearing before the Unit Disciplinary Committee (UDC). Nowhere does Petitioner allege that he did not know or understand the charges against him. Thus, there is no question that Petitioner had actual notice and received a written copy of the charges against him very shortly after the incident and well before his initial hearing on the charges.
Petitioner's notice claim appears even weaker in the context of the significant safeguards afforded by the various applicable prison regulations. A number of regulations establish procedures designed to afford inmates charged with disciplinary violations the notice mandated by Wolff. Petitioner alleges a violation of only one part of one such regulation.
The regulation establishing the procedures which must be followed in initial hearings before a UDC has a rather stringent notice requirement:
Staff shall give each inmate charged with violating a Bureau rule a written copy of the charge(s) against the inmate, ordinarily within 24 hours of the time staff became aware of the inmate's involvement in the incident.
28 C.F.R. § 541.15(a) (1993). Since Petitioner acknowledges that he received a copy of the written charge within 24 hours of the discovery of the sharpened instrument in his cell, the requirements of § 541.15(a) were duly satisfied. Since the written copy also was provided 36 hours prior to his UDC initial hearing, there was no violation of the Wolff requirement that an inmate have notice of the charges twenty-four hours prior to his disciplinary hearing. 459 U.S. 553 at 564.
Furthermore, § 541.17(a), which addresses procedures before the DHO, states:
The Warden shall give an inmate advance written notice of the charge(s) against the inmate no less than 24 hours before the inmate's appearance before the Discipline Hearing Officer unless the inmate is to be released from custody within that time. An inmate may waive in writing the 24-hour notice requirement.
Petitioner's hearing before the DHO was twelve days after his UDC hearing. Thus, Petitioner also acknowledges that prison officials adhered to the requirements of § 541.17(a).
In spite of the foregoing, Petitioner contends that penitentiary officials violated § 541.14(b)(2)
and, therefore, his due process rights, because Lieutenant Hernandez did not read the charge to him or ask for his statement. Section 541.14(b)(2) states that "the investigator  shall read the charge(s) to the inmate and ask for the inmate's statement concerning the incident unless it appears likely that the incident may be the subject of a criminal prosecution." 28 C.F.R. § 541.14(b)(2).
While Petitioner asserts that he was "handed a copy of the Incident Report without more," Lieutenant Hernandez contradicts this statement, at least in part, insisting that, as the investigating officer, he gave Petitioner a copy of the incident report and "made him aware of the charges and his right to make a statement or remain silent." (Opp. Br., Ex. 3 at 1, P 3.) Assuming arguendo the facts as stated by Petitioner, this court is persuaded that the notice afforded Petitioner complied with due process.
Neither Wolff nor any subsequent cases cited by Petitioner specifically require that charges be read to an inmate or that an inmate be told that he has the opportunity to make a statement prior to his hearing. This is especially true where there is no allegation that Petitioner did not know or understand the charges against him or that he either made an incriminating statement that was used against him or that he was silent and that his silence was used against him. Thus, assuming arguendo that Respondent did not comply in every respect with the literal requirements of the regulations, this court is persuaded that the actions concededly taken by prison officials provided Petitioner with adequate notice of the charges he was facing and complied with due process.
Petitioner's only remaining argument is that, regardless of what due process may require in prison disciplinary proceedings, once the Bureau of Prisons has established certain regulations for the conduct of these proceedings, Petitioner has a right to be judged in accordance with the standards and procedures embodied in those regulations. Case law supports this proposition, though not necessarily the remedy suggested by Petitioner.
In Marshall v. Lansing, 839 F.2d 933 (3d Cir. 1988), the Third Circuit noted that "principles of due process require an agency to follow its own regulations which have the force of law." Id. at 943. The court also noted that "a prisoner has a right to insure that he is being held in compliance with agency regulations which have the force of law." Id. This is especially true with respect to regulations adopted for the benefit of particular individuals. See Port of Jacksonville Maritime Ad Hoc Comm., Inc. v. United States Coast Guard, 788 F.2d 705, 708 (11th Cir. 1986) (exception permitting agency limited discretion to depart from its own regulations not applicable where regulations designed to "confer a procedural benefit to a class to which complainant belongs").
However, the appropriate course of action when a violation of an agency regulation occurs is less clear. The Third Circuit has not squarely addressed the issue, though it has made some relevant, though arguably conflicting, comments in passing. In Marshall, on the one hand, the Third Circuit stated that "a court can set aside agency action that fails to comply with the agency's own regulations, at least where the regulations are designed to protect the individual grievant." 839 F.2d at 943 (emphasis added). This appears to imply that a court has some discretion regarding what to do in the context of an agency violation. On the same page of the Marshall opinion, however, the court cited United States ex rel Accardi v. Shaughnessy, 347 U.S. 260, 98 L. Ed. 681, 74 S. Ct. 499 (1954), for the proposition that a "writ of habeas corpus will issue where [a] federal agency fails to comply with its own regulations." Id. (emphasis added). This appears to imply that remand is mandatory where agency regulations are violated.
The Second Circuit recently struggled with this issue in several immigration cases. Montilla v. INS, 926 F.2d 162 (2nd Cir. 1991) (vacating deportation order and remanding because of agency's failure to strictly comply with regulations governing waiver of right to counsel); Waldron v. United States, 17 F.3d 511 (2nd Cir. 1993) (upholding deportation order in spite of failure to comply with regulations regarding notice of right to contact consular officials), withdrawing opinion at 994 F.2d 71 (2nd Cir. 1993). In Montilla, the court noted that "we have two options in applying these regulations in a case where there was a failure to fully comply with them: one is to insist that they be scrupulously adhered to; the other is to search the record to see if petitioner was prejudiced by the failure." 926 F.2d at 166. The Second Circuit referred to these options as the "Accardi doctrine"
and the "prejudice" test, respectively.
After considering the competing interests involved, the Second Circuit determined that each approach was proper in certain circumstances. Ultimately, it concluded that:
when a regulation is promulgated to protect a fundamental right derived from the Constitution or a federal statute, and the INS fails to adhere to it, the challenged deportation proceeding is invalid and a remand to the agency is required. This may well be so even when the regulation requires more than would the specific provision of the Constitution or statute that is the source of the right. See Montilla, 926 F.2d at 167 (citing Morton v. Ruiz, 415 U.S. 199, 235, 39 L. Ed. 2d 270, 94 S. Ct. 1055 (1974)). On the other hand, where an INS regulation does not affect fundamental rights derived from the Constitution or a federal statute, we believe it is best to invalidate a challenged proceeding only upon a showing of prejudice to the rights sought to be protected by the subject regulation.