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Hardy v. Martinez

June 30, 2008

HOWARD W. HARDY, PETITIONER
v.
R. MARTINEZ, RESPONDENT



The opinion of the court was delivered by: Judge Kosik

MEMORANDUM

I. Introduction

Howard W. Hardy files this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 claiming his due process rights were violated with regard to three separate disciplinary actions against him while housed at the Allenwood Federal Correctional Institution (FCI-Allenwood). Hardy is currently confined at the United States Penitentiary at Allenwood (USP-Allenwood), Pennsylvania. Named as Respondent is R. Martinez, Warden of USP-Allenwood. In the petition Hardy specifically raises the following three claims with regard to the disciplinary actions:

(1) the Unit Discipline Committee ("UDC") and the Discipline Hearing Officer ("DHO") did not have authority to conduct the hearings on the three disciplinary charges because three sections of the incident reports were left blank*fn1 ; (2) he was unable to attend the hearings for the three disciplinary actions because he had been moved to the Allenwood Low Security Correctional Institution ("LSCI-Allenwood") at the time of the hearings; and (3) he did not timely receive copies of the DHO's reports regarding the three hearings that were conducted. As a result of the three disciplinary actions, Petitioner's sanctions included a loss of a total of 210 days of statutory good conduct time credit toward his federal sentence. In the petition, he seeks to have the incident reports expunged, the imposed sanctions lifted, and the lost GCT credit restored.

A response to the petition was filed on June 5, 2008. (Doc. 9.) On June 12, Petitioner's motion to amend the petition to supplement was granted, and Respondent provided with additional time to supplement the response previously submitted. (Doc. 12.) No supplement has been submitted. Petitioner filed a traverse to the response on June 16, 2008. (Doc. 13.) The petition is ripe for consideration and, for the reasons that follow, will be denied.

II. Factual Background

Petitioner is serving a 37-year term of imprisonment for the offenses of rape while armed and attempted rape. His sentence is to be followed by a consecutive 33- month term of imprisonment for prisoner in possession of heroin. (Doc. 9, Ex. 1, McCluskey Decl., ¶ 4; Ex. 2, BOP SENTRY Report at 3-6.) Petitioner arrived at FCI-Allenwood on May 30, 2007, and was transferred to the Low Security Correctional Institution at Allenwood on December 18, 2007. On January 2, 2008, he was transferred to USP-Allenwood, where he is currently confined.

Petitioner raises due process challenges to three separate incident reports that were issued against him. The facts with regard to each of these follow.

A. Incident #1 - December 5, 2007

On December 5, 2007, Senior Officer Specialist S. Parker responded to a duress alarm activated by Petitioner in the Special Housing Unit ("SHU") at FCIAllenwood. (Doc. 9, Ex. 3, Incident Report No. 1674929 at 1; Ex. 12, DHO Report at 2.) When Parker did not initially meet Petitioner's demand for a blanket, Petitioner stated "You are an Anglo-Saxon cracker mother****er, and you can keep your mother****ing blanket." Id. Petitioner then stated that when he got out of the SHU, he was going to rape Parker's wife, also an employee at FCI-Allenwood.

On December 6, 2007, Parker wrote an incident report (No. 1674929) charging Petitioner with conduct which disrupts and interferes with the security or orderly running of a BOP facility, most like threatening bodily harm, violation of Code 299, as well as insolence toward a staff member, violation of Code 313. The same day, at approximately 1:45 p.m., Lieutenant J. Marr, the officer who investigated the incident, delivered the Incident Report to Petitioner. (Doc. 9, Ex. 3 at 1,2.) Marr had interviewed Petitioner during the investigation and noted that he had advised Petitioner of his rights to remain silent, that Petitioner made no comment, did not request witnesses and had a "fair" attitude. (Id. at 2.)

An initial hearing with regard to this incident report was conducted by the UDC on December 9, 2007. The record notes that Petitioner declined to appear and refused to sign a Waiver of Appearance form. (Id., Ex. 4, Waiver of Appearance.) The UDC referred the case to the DHO for further hearing in that the sanctions for the charged offenses were not available at the UDC level.

On the same date Petitioner received notice of the DHO hearing and was advised of his rights with regard to the hearing. (Id., Ex. 5.) It is noted that Petitioner declined to appear before the DHO and refused to sign the notice. (Id. at 1,2.) The hearing was thereafter conducted on December 18, 2007. (Id., Ex. 6, DHO Report.) The DHO report reveals that Petitioner did not admit or deny the charges, since he had refused to appear at the hearing. (Id.)

The report set forth the documentary evidence considered by the DHO which included (1) the incident report, which included the reporting officer's description of the events and (2) a Memorandum written by Senior Officer C. O'Conners dated December 6, 2007, ...


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