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Collins v. Martinez

October 25, 2010

KENARD MAURICE COLLINS, PETITIONER
v.
RICARDO MARTINEZ, RESPONDENT



Hon. John E. Jones III

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

Petitioner Kenard Maurice Collins ("Petitioner" or "Collins"), an inmate presently confined at the United States Penitentiary at Allenwood ("USP Allenwood") in White Deer, Pennsylvania, initiated this action by filing a pro se Petition for Writ of Habeas Corpus ("Petition") under the provisions of 28 U.S.C. § 2241. (Doc. 1.) Collins alleges that he was denied due process during two (2) prison disciplinary proceedings after which he was found guilty and sanctioned with the loss of good conduct time. He also alleges that the consideration he received from the Federal Bureau of Prisons ("BOP") for placement in a Residential Re-entry Center ("RRC") was inconsistent with the provisions of the Second Chance Act.

Service of the Petition (Doc. 1) and accompanying Exhibits (Doc. 2), which were filed on December 14, 2009, was directed by Order dated December 21, 2009 (Doc. 5). Following a request for an extension of time to file a response (Doc. 6), on February 1, 2010, a Response (Doc. 10), supporting exhibits*fn1 (Docs. 10-2 through 10-5), and supporting authority (Docs. 10-6 through 10-9) were filed.

On February 18, 2010, Petitioner filed a Motion in which he requested a thirty (30) day extension of time to file a Reply and an Order to compel Respondent to turn over discovery pursuant to his requests. (Doc. 12.) Although he described the discovery he sought as the written statement of a former USP Allenwood employee, medical records, and a surveillance tape, Petitioner did not provide sufficient information to determine whether he demonstrated good cause to be granted discovery in this habeas corpus action. Therefore, by Order dated February 22, 2010, that portion of his request was denied. (See Doc. 13.) However, we granted Petitioner's request for an extension of time until March 24, 2010 to file his reply brief. (See id.) Petitioner filed his reply brief on March 22, 2010. (Doc. 14.) Accordingly, the instant Petition is fully briefed and ripe for disposition. We shall consider Collins' due process claim and RRC placement claim in turn below, and for the reasons set forth herein, the Petition will be denied as to both claims.

DUE PROCESS CLAIM

I. BACKGROUND

A. Incident Report 1834072

On February 16, 2009, Collins received an incident report at USP Allenwood charging him with a code 307 violation for refusing to obey an order of any staff member; a code 222 violation for possession of intoxicants; and a code 405 violation for possession of tatooing paraphernalia. (Doc. 10-2 at 5, Cerney Decl., ¶ 10; Doc. 10-2 at 24-25, Incident Report 1834072.*fn2 ) On February 16, 2009 at 4:25 p.m., Lieutenant James Nickerson presented Collins with advance written notice of the charges against him and informed Collins of his right to remain silent. (Doc. 10-2 at 5-6 ¶¶ 11-12; Doc. 10-2 at 25, Blocks 23-24.) At that time, Collins displayed a fair attitude. (Doc. 10-2 at 6 ¶ 12; Doc. 10-2 at 25, Block 24.) Collins stated, "No comment," and did not request any witnesses. (Doc. 10-2 at 6 ¶ 12; Doc. 10-2 at 25, Block 25.) Based on Collins' refusal to provide mitigating or extenuating evidence or circumstances, Lieutenant Nickerson referred the incident report to the Unit Discipline Committee ("UDC"). (Doc. 10-2 at 6 ¶ 12; Doc. 10-2 at 25, Blocks 23-27.)

On February 18, 2009 at 7:50 a.m., the UDC conducted its hearing. (Doc. 10-2 at 6 ¶ 13; Doc. 10-2 at 24, Blocks 17, 21.) After he was advised of his rights, Collins stated, "I have nothing to say." (Doc. 10-2 at 6 ¶ 13; Doc. 10-2 at 24, Blocks 17, 21.) Based on the reporting officer's report, the UDC recommended a sanction of thirty (30) days disciplinary segregation time, the loss of twenty-seven (27) days of good conduct time, and they referred the charges to the Disciplinary Hearing Officer ("DHO") for further disposition. (Doc. 10-2 at 6 ¶ 14; Doc. 10-2 at 24, Blocks 18-20.)

At the time of the UDC hearing, Collins was provided with a copy of the "Inmate Rights at Discipline Hearing" Form, which advised him of the following rights: (a) to have a written copy of the charge(s) against him at least twenty-four (24) hours before the hearing; (b) to have representation by a full-time staff member at the hearing; (c) to call witnesses, present written statements of unavailable witnesses, and present documentary evidence on his behalf, provided institutional security would not be jeopardized; (d) to present a statement or to remain silent, but with the condition that his silence could be used to draw an adverse inference; (e) to be present throughout the discipline hearing, except during deliberation or when institutional security would be jeopardized; (f) to receive a written DHO decision; and (g) to appeal the DHO decision through administrative remedy procedures within twenty (20) days of the DHO's decision. (Doc. 10-2 at 6-7 ¶ 15; Doc. 10-3 at 2-3, Inmate Rights at Discipline Hearing.) Although Collins refused to sign the form to acknowledge that he had been advised of his rights at the hearing, Correctional Counselor Jonathan Grill indicated that the form was given to Collins on February 18, 2009 at 7:50 a.m., as well as Collins' refusal to sign. (Doc. 10-2 at 7 ¶ 16; Doc. 10-3 at 2-3.)

Also at the time of the UDC hearing, Correctional Counselor Grill provided Collins with a copy of the "Notice of Discipline Hearing before the DHO" Form. (Doc. 10-2 at 8 ¶ 17; Doc. 10-3 at 5, Notice of Discipline Hearing before the DHO.) The form reflects that Collins requested that Physician Assistant ("PA") J. Russell serve as his staff representative, but that he declined to call any witnesses. (Doc. 10-2 at 8 ¶ 17; Doc. 10-3 at 5.) Because Collins also refused to acknowledge receipt of the Notice of Discipline Hearing before the DHO Form, Grill signed the Form as a witness. (Doc. 10-2 at 8 ¶ 17; Doc. 10-3 at 5.)

On February 27, 2009, PA Russell agreed to serve as Collins' staff representative. (Doc. 10-2 at 8 ¶ 18.) Russell then reviewed and signed the "Duties of Staff Representative" Form instructing her of the following duties: (a) to assist in presenting whatever information the inmate wants to present and in preparing defense; (b) to speak to witnesses who might furnish evidence on behalf of the inmate, if the inmate indicates there are such witnesses whom the inmate wishes to have called; (c) to become familiar with all reports relative to the charge against the inmate (noting that confidential or security information must be protected and may not be shared with any other person, and that any request for confidential information should be directed to the DHO); (d) to present any evidence favorable to the inmate's defense; (e) to present information which may assist the DHO and which may contain a lesser sanction for the inmate; (f) to help an inmate understand the charges and the potential consequences; (g) to be familiar with procedures at the hearing, explain them to the inmate in advance, and if necessary, during the hearing, assist the inmate in understanding procedural points; (h) to not be present during deliberations by the DHO, except with regard to confidential information that must be discussed with the DHO outside the inmate's presence; and (i) if requested by the inmate, to assist in writing an administrative appeal. (Id.; Doc. 10-3 at 7, Duties of Staff Representative.)

On March 6, 2009, Collins appeared before DHO Cerney for his discipline hearing on Incident Report 1834072. (Doc. 10-2 at 9 ¶ 19; Doc. 10-3 at 9-11, DHO Report (Incident Report 1834072).) PA Russell stated that she did not note any discrepancies in the discipline process, that she met with Collins in advance of the hearing to discuss his case, and informed the DHO that Collins did not understand "how the Alco-Sensor could have worked on his coat [to detect the presence of intoxicants]." (Doc. 10-3 at 9, Block II. E.) Collins was advised of his rights by DHO Cerney at the outset of the hearing. (Doc. 10-2 at 10 ¶ 22; Doc. 10-3 at 9, Block III. B.) Collins indicated that he understood his rights and that he was waiving his right to witness testimony. (Doc. 10-2 at 10 ¶ 22; Doc. 10-3 at 9, Block III. B.)

Collins was provided with an opportunity to make a statement, and stated as follows: "This thing is a false allegation. I was dumping some mash. He gave me an order to give him what I had and I ran. That's how we are told to do needles. We're supposed to label them so the Officers don't get stuck. I never had wine, this is false. I always admit what's mines [sic]." (Doc. 10-2 at 10-11 ¶ 23; Doc. 10-3 at 9, Block III. B.)

No procedural issues were cited, and no documentary evidence was provided by Collins. (Doc. 10-2 at 11 ¶ 24; Doc. 10-3 at 9, Block III. B.) All documents in reference to the case were disclosed to PA Russell. (Doc. 10-2 at 11 ¶ 25; Doc. 10-3 at 9-10, Block III. B.)

In addition to the Incident Report and Investigation, the DHO considered the following evidence: pictures of the tattoo needle found in Collins' cell; the envelope holding the tattoo needle found in Collins' locker; and Collins' coat, which was soaked with homemade intoxicants. (Doc. 10-2 at 11 ¶ 26; Doc. 10-3 at 10, Block III. D.) Further, in explaining the evidence relied on to support his findings, DHO Cerney summarized Collins' participation in the incident, as adapted from Section 11 of the Incident Report, as follows:

Paraphrased, Officer Santiago writes: On February 16, 2009, at or about 1:00 p.m., I was standing by the metal detector in Unit 4-A during the feeding of the noon meal when inmate, COLLINS, #41356-037 entered.

I asked inmate COLLINS for a pat search. At this time, he stated he had wine in his coat. I asked him to take it out and give it to me. He stated that he could not. I then gave him a direct order to give it to me, and he took off running toward his cell. He blocked the cell door with his body so I could not get in and poured the trash bag with the liquid into the toilet. The inmate's coat gave a reading of .429 on the alco-sensor III when tested because the bag broke as he was attempting to dispose of the evidence. While packing inmate COLLINS' property, I found a tattoo needle inside an envelop[e] with his name and number addressed to him inside his locker with other personal property. The envelope had tattoo needle written on the other side of it. (Doc. 10-3 at 10, Block V.) The DHO then noted that, when he questioned Collins at the hearing, he denied the charges, and then elaborated by providing the statement that was summarized earlier in the DHO Report. (Id.) Based on the evidence, DHO Cerney concluded that Collins had committed the prohibited acts of possession of intoxicants, refusing to obey an order of any staff member, and possession of tattooing paraphernalia. (Doc. 10-2 at 12 ¶ 29; Doc. 10-3 at 10, Blocks IV, V.)DHO Cerney imposed the following sanctions: thirty (30) days of disciplinary segregation time; the disallowance of twenty-seven (27) days of good conduct time; and the loss of visitation, telephone, and commissary privileges for three (3) months. (Doc. 10-2 at 12 ¶ 29; Doc. 10-3 at 11, Block VI.)

At no time during the hearing did Collins or PA Russell raise issues concerning Russell's performance as a staff representative. (Doc. 10-2 at 11 ¶ 27.) In addition, although Collins alleges in the instant Petition that Russell failed to review "evidence tapes," Cerney has declared under penalty of perjury that, to the best of his knowledge, no such tapes exist and that neither Collins nor Russell requested that Cerney review any such tapes during the disciplinary process. (Id. at 11-12 ¶ 28.)

DHO Cerney advised Collins of his findings, the specific evidence relied upon, the action, and the reasons for the action. (Id. at 12 ¶ 30; Doc. 10-3 at 11, Block VIII.) DHO Cerney also advised Collins that, under the Administrative Remedy Procedure, he had the right to appeal the decision within twenty (20) calendar days, and he provided Collins with a copy of his report. (Doc. 10-2 at 12 ¶ 30; Doc. 10-3 at 11, Block VIII.)

In accordance with 28 C.F.R. § 541 et seq., Inmate Discipline and Special Housing Units, Cerney found no due process or procedural violations in Collins' disciplinary hearing with regard to Incident Report 1834072. (Doc. 10-2 at 12 ¶ 31.) Specifically, Collins received written notice of the charged misconduct when he was given a copy of the incident report on February 16, 2009 within twenty-four (24) hours of the incident. (Doc. 10-2 at 13 ¶ 32.) The UDC hearing was conducted on February 18, 2009, which was within three (3) working days after the incident report was written and more than twenty-four (24) hours after Collins was notified of the charges. (Id. ¶ 33.) In addition, Collins appeared before an impartial hearing body and was afforded the opportunity to present witnesses (which he waived)and documentary evidence. (Id. ¶¶ 34, 35.) Moreover, Collins was provided the opportunity for a staff member to represent him, and PA Russell, the representative he chose, performed in that capacity. (Id. ¶ 36.)

DHO Cerney found "some evidence or basis in fact" which supported his conclusion that Collins had committed the prohibited acts. (Id. ¶ 37.) Collins was provided with a copy of DHO Cerney's Report, which contained a written statement of the evidence relied upon and the rationale behind the decision that Collins had committed the prohibited acts. (Id. at 13-14 ¶ 38.) The record also reflects that DHO Cerney advised Collins of his right to appeal his decision and that he received a copy of the DHO Report. (Id. at 14 ¶ 39.) Although PA Russell has resigned from her position with the BOP and could not be located when a response to the instant Petition was ...


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