The opinion of the court was delivered by: Judge Rambo
Before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, filed by petitioner Kareem Hassan Milhouse ("Milhouse"), an inmate currently incarcerated at the United States Penitentiary in Lewisburg, Pennsylvania ("USP-Lewisburg"). (Doc. 1.) Milhouse alleges that his constitutional rights were violated in the context of a disciplinary hearing. For the reasons that follow, the petition will be denied.
On July 10, 2008, at approximately 11:00 a.m., Correctional Counselor Keith Metzger approached Cell A03-307, which was occupied by Milhouse. (Doc. 6-2 at 26-28, Decl. B. Chambers, Ex. 1, Attach. C, Incident Report.) Counselor Metzger informed Milhouse that it was time to move to a new cell on the second floor of the housing unit. (Doc. 6-2 at 26.) Milhouse replied that he was not moving to the second floor. (Id.) When Counselor Metzger again informed Milhouse that he was being assigned to a new cell, Milhouse again refused the move. (Id.) Prison records indicate that on that same day Milhouse was transferred to USP-Lewisburg's Special Housing Unit at 12:46 p.m. pending an investigation of the incident. (Doc. 6-2 at 30, Decl. B. Chambers, Ex. 1, Attach. D, Inmate History.)
On July 10, 2008, at approximately 1:45 p.m., Counselor Metzger completed Incident Report Number 1752868, charging Milhouse with a Code 306 violation, Refusing to Accept a Program Assignment, and a Code 307 violation, Refusing to Obey an Order. (Doc. 6-2 at 26.) As part of the investigation, Milhouse was advised of his rights and indicated that he understood them. (Id. at 28.) In addition, he was interviewed by an investigating officer from the Bureau of Prisons ("BOP") staff. (Id.) Milhouse had no comment and requested no witnesses. (Id.) The investigation was completed at 5:50 p.m., and based on the information gathered, the investigating officer decided to refer the incident to the Unit Disciplinary Committee ("UDC") for further action. (Id. at 27.) At approximately 6:00 p.m., a copy of the completed incident report was delivered to Milhouse, charging him with the Code 306 and 307 violations. (Id. at 26.)
On July 13, 2008, at 10:06 a.m., the UDC held a hearing to review the incident report. (Id. at 27.) At that time, Milhouse declined to make a statement. (Id.) After reviewing the matter, the UDC referred it to the disciplinary hearing officer ("DHO") for a further hearing. (Id.) In addition, on July 13, 2008, Milhouse signed an advisement of rights form, indicating that he understood his rights at the proceeding before the DHO. (Doc. 6-2 at 34-35, Decl. B. Chambers, Ex. 1, Attach. E, Inmate Rights at Discipline Hearing.) That same day, Milhouse declined staff representation and waived his right to call witnesses. (Doc. 6-2 at 37, Decl. B. Chambers, Ex. 1, Attach. F, Notice of Disciplinary Hearing Before the DHO.)
A hearing was held before the DHO on July 29, 2008. (Doc. 6-2 at 39-43, Decl. B. Chambers, Ex. 1, Attach. G, DHO Report.) At the beginning of the hearing, Milhouse was reminded of his rights before the DHO. (Id. at 39.) Milhouse acknowledged his rights and indicated that he was ready to proceed with the hearing. (Id.)
At the DHO hearing, Milhouse was provided with the opportunity to make a statement. (Id.) Milhouse alleged that a procedural violation of his due process rights had occurred during the processing of the incident report. (Id.) Specifically, Milhouse testified that he did not receive a copy of the incident report within 24 hours of the writing of the report, as is ordinarily required by BOP policy relating to inmate discipline. (Id.) The DHO informed Milhouse that sections 14, 15, and 16 of the incident report show that Milhouse received a copy of the incident report from the investigating officer on July 10, 2008 at 6:00 p.m. (Id.) The DHO also informed Milhouse that the investigating officer documented in sections 24 and 25 of the incident report that Milhouse had appeared before the investigating officer and had been advised of his rights and indicated he understood them. (Id.) Sections 24 and 25 of the incident report also indicated that Milhouse had displayed a fair attitude during his interview with the investigating officer, made no statement with regard to the incident report at that time, and requested no witnesses. (Id.) Milhouse countered that he had never been interviewed by the investigating officer and that the investigating officer fabricated those portions of the incident report. (Id. at 39-40.) When the DHO again advised Milhouse that the record documented that the incident report had in fact been processed in accordance with BOP policy, Milhouse reiterated that the investigating officer had lied and he never received a copy of the incident report. (Id. at 40.)
The DHO asked Milhouse whether he received a copy of the incident report following the hearing before the UDC. (Id.) In response, Milhouse testified that he had received a copy of the incident report a day or two after the UDC hearing. (Id.) The DHO then informed Milhouse that, by his own admission, he had received a written copy of the charges against him well in advance of the 24 hours prior to the DHO hearing. (Id.)
Following this exchange, the DHO asked Milhouse if he was prepared to defend himself against the charges. (Id.) Milhouse responded that he was prepared to defend himself but requested that the incident report be expunged because he had not received it within 24 hours of the incident. (Id.) The DHO informed Milhouse that the record indicated that he did in fact receive a copy of the incident report within 24 hours of the incident. (Id.) Thus, the DHO refused Milhouse's request for expungement of the incident report and directed that the hearing proceed as scheduled. (Id.)
The DHO summarized Milhouse's resulting testimony as follows: Inmate Milhouse testified that Section 11 of the incident report is not completely accurate. Inmate Milhouse testified that Counselor Metzger did come to his cell and tell him to pack his property because he was moving to the second floor. Inmate Milhouse stated he complied with Counselor Metzger's directions and packed his personal property in preparation for the move. Milhouse testified that when Counselor Metzger returned to move him, he asked Counselor Metzger which cell he was moving to and who his cell mate was going to be. Milhouse testified that when Counselor Metzger informed him of who his new cell mate was going to be, he told Counselor Metzger that he was not moving into a cell with that particular inmate. Milhouse testified that he and that particular inmate "don't get along." Milhouse testified that he knew there would be issues between the two inmates, so there was no point in moving into the cell. Milhouse testifed that he informed Counselor Metzger that he was not refusing to move to the second floor, he was just refusing to move into a cell with that particular inmate. Milhouse testified that he told Counselor Metzger that he would have moved in with a different cell mate, just not that particular inmate. Milhouse reiterated that his personal property was packed and ready to go, which is evidence that he was prepared to move. Milhouse testified that he didn't refuse to move, he just refused to accept that particular inmate as a cell mate.
The DHO asked Milhouse what type of "issues" he had with the other inmate, and whether they were of a nature which would result in a fight or physical altercation between the two inmates. Milhouse testified that the issues he had with the other inmate were not of such a nature that a fight or physical altercation would have occurred if the two inmates became cell mates. Milhouse testified that he knew the other inmate, and just knew things wouldn't work out between the two of them if they became cell mates. The DHO asked Milhouse whether he felt threatened by this other inmate. Milhouse replied that he did not feel threatened by the other inmate. (Id.)
Further, Milhouse was provided the opportunity to present witnesses and to provide supporting documentary evidence. (Id. at 39-41.) However, Milhouse failed to call any witnesses or provide documentary evidence. (Id.)
After the hearing, the DHO issued a decision, dated August 12, 2008, finding Milhouse guilty of committing the Code 306 violation, Refusing a Program Assignment (cell assignment). (Id. at 41.) In making this determination, the DHO relied upon the written eyewitness account of the reporting officer and the testimony of Milhouse, in which he admitted that he did refuse to move to the specific cell with a particular inmate, admitted that ...