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Curry v. Sauers

United States District Court, M.D. Pennsylvania

September 24, 2014

MARKEL CURRY, Petitioner,
v.
DELBERT SAUERS, Respondent.

MEMORANDUM

YVETTE KANE, District Judge.

Presently before the Court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 filed by Markel Curry ("Petitioner"). Petitioner is an inmate currently confined at the Federal Correctional Institution at Allenwood-Low Security, Pennsylvania. In the petition, he alleges that his due process rights were violated during a disciplinary hearing after which he was found guilty of the prohibited act of "Use of the Mail for Abuses Other than Criminal Activity, " in violation of Code 296. (Doc. No. 1, Pet.) The petition is ripe for consideration and, for the reasons that follow, will be granted.

I. Factual Background

Petitioner is serving a 300-month federal sentence imposed by the United States District Court for the Western District of New York for Continuing Criminal Enterprise, a violation of 21 U.S.C. § 848. On October 24, 2012, he received Incident Report No. 2367068 written by LSCI-Allenwood Correctional Officer Sheets charging him with a Code 296 violation for "Use of the Mail for Abuses Other than Criminal Activity." (Doc. No. 6-1 at 15.)[1] Officer Sheets described the incident as follows:

On October 23, 2012, ... while conducting mail monitoring, it was discovered that inmate Markel Curry... placed a letter in the outgoing inmate institution mail. The envelope was addressed to Elliott Buckner.... The envelope contained one hand written four page letter which contained the following excerpt: Killer and Tom Tom made it home, so that's good news. A lot of brothers ask about you, I tell them your at home chillen.... Oh yeah Lico have a few days, so by the time you receive this, he'll be home also.' Inmate Curry is circumventing BOP mail procedures by sending the letter to inmate Elliott Buckner... through a third party. Inmate Buckner was transferred from LSCI Allenwood, PA on September 12, 2011, and is currently housed at FCI Terre Haute.

(Doc. No. 6-1 at 15, Incident Report.)

On October 24, 2012, Petitioner was provided with a copy of the incident report by investigating officer, Lieutenant T. Matthews. He was advised of his right to remain silent at this time. Petitioner admitted to Matthews that the letter was intended for former LSCI-Allenwood inmate Elliott Buckner. Petitioner stated that he sent the letter to the address Buckner provided him before he left, noting the same was a post office box so he did not know Buckner was in another correctional institution. ( Id. at 16.) Based upon Petitioner's statement and a review of the letter, Matthews found the report to be factual, and referred the matter to the Unit Discipline Committee ("UDC"). Matthews also noted that Petitioner declined to call witnesses on his behalf. (Id.)

On October 26, 2012, Petitioner appeared before the UDC. He was provided a written advisement of his rights, and petitioner acknowledged receipt of this form with his signature. (Doc. No. 6-1 at 18, Inmate Rights at Discipline Hearing form.) Unit Manager Rodarmel signed the form as a witness. Petitioner also acknowledged with his signature that he was notified in writing of his Disciplinary Hearing Officer ("DHO") hearing and of the Code 296 charge against him. At this time, Petitioner also declined a staff representative for the hearing, and indicated that he did not wish to call any witnesses at the hearing. (Doc. No. 6-1 at 18, Inmate Rights at Discipline Hearing form.) He was afforded an opportunity to make a statement and did so, stating that "It was a total misunderstanding. He wrote me a couple months ago and I assumed he was home, so I wrote him back." (Doc. No. 6-1 at 14, Part II.) The UDC recommended that the charge be downgraded to a Code 396 and a disciplinary sanction of 30 days loss of commissary privileges.

Petitioner appeared before DHO Cerney for his disciplinary hearing on November 1, 2012. The DHO noted that Petitioner had received advance written notice of the charges against him, that he had been advised of his rights before the DHO, and that he had waived his right to a staff representative. (Doc. No. 6-1 at 22, DHO Report.) It was further noted that Petitioner denied the charges. DHO Cerney again advised Petition of his rights, and Petitioner indicated that he understood them.

Petitioner was thereafter provided the opportunity to make a statement and choose to do so, stating "Buckner wrote into me and I thought he was home." ( Id. at 22.) The DHO noted that no procedural issues were cited and no documentary evidence was provided by Petitioner at the hearing. (Id.) The documentary evidence considered by the DHO was noted in his report. In addition to the incident report and the investigation, the DHO also considered documents including a photocopy of the outgoing correspondence from Petitioner to inmate Buckner, and the SENTRY inmate profile for inmate Buckner.

After considering the evidence, the DHO found that Petitioner committed the prohibited act as charged. (Doc. No. 6-1 at 23.) He noted the specific evidence relied upon, including Petitioner's involvement in the incident, the reporting officer's statement, inmate Buckner's Inmate Profile form which showed that Buckner was incarcerated at FCI Terre Haute, Indiana at the relevant time, and the letter sent by Petitioner to Buckner, addressed to a post office box in Dolton, Illinois. (Id.) The DHO also noted that he considered Petitioner's denial of the charge, but did not find his stated mitigating circumstances showed that the charged act was not committed. (Id.) It was noted by the DHO that Petitioner's "attempt to contact this inmate at an address other than FCI Terre Haute (and without staff approval) was believed an avenue to circumvent mail monitoring." (Id.)

The DHO issued his report on November 7, 2012, finding that the greater weight of the evidence supported a finding that Petitioner committed the prohibited act of "Use of the Mail for Abuses other than Criminal Activity, " in violation of Code 296. The disallowance of 27 days of good conduct time credit toward Petitioner's federal sentence was imposed by the DHO as a sanction. As reasons for this sanction, the DHO noted as follows:

Curry's use of his written correspondence privileges detracted from the intent of the Federal Bureau of Prison's on the same. His behavior in this case circumvented the monitoring of his contacts. Accordingly, disallowed good conduct time is sanctioned in ths case to punish Curry for his behavior and deter him from it in the future.

(Doc. No. 6-1 at 24.) Petitioner was provided with a copy of the DHO report on November 8, 2012, and he was ...


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