United States District Court, M.D. Pennsylvania
November 10, 2014
DARNELL PITTMAN, SR., Petitioner,
J.E. THOMAS, Warden, Respondent
Darnell Pittman, Petitioner, Pro se, Coleman, FL.
Warden J.E. Thomas, Respondent: Mark Morrison, LEAD ATTORNEY, U.S. Attorney's Office - Prisoner, Harrisburg, PA.
KAROLINE MEHALCHICK, United States Magistrate Judge. CONABOY, J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK, United States Magistrate Judge.
On May 31, 2013, the Court received and filed a petition for a writ of habeas corpus submitted pursuant to 28 U.S.C. § 2241, signed and dated by the Petitioner, Darnell Pittman, on May 27, 2013. (Doc. 1). Pittman is a federal prisoner, sentenced in June 2008 by a federal district court in Ohio to serve a 262-month term of imprisonment for robbery (carjacking) and the use of a firearm during the commission of a crime of violence. At the time of filing, Pittman was incarcerated at USP Lewisburg, which is located in Union County, Pennsylvania.
On January 11, 2013, Pittman received Incident Report No. 2395917, charging him with threatening bodily harm to his cellmate and to prison staff. (Doc. 10-2, at 32-34). On February 6, 2013, Pittman received a disciplinary hearing on these charges. (Doc. 10-2, at 40-49). The disciplinary hearing officer (" DHO") found that Pittman committed the charged offense and imposed disciplinary sanctions, including the disallowance of 27 days of good conduct time. (Doc. 10-2, at 43; Doc. 10-2, at 48). The DHO completed and signed his written report on March 4, 2013. (Doc. 10-2, at 49). The signature of another prison staff member indicates that it was delivered to Pittman that same day, on March 4, 2013. (Doc. 10-2, at 49).
Pittman, however, claims that the DHO report was not delivered to him on March 4, 2013. The record reflects his filing of several administrative grievances, complaining that he had not received the DHO report and requesting that it be provided to him so he could appeal it. ( E.g., Doc. 10-2, at 26-27). Pittman claims that he did not receive a copy of the DHO report until April 11, 2013. ( See Doc. 1, at 22).
Pittman then submitted an appeal from the DHO report, which was received by the BOP regional office on April 22, 2013. (Doc. 1, at 28; see also Doc. 1, at 26; Doc. 1, at 27; Doc. 10-2, at 21). For reasons that are unclear,  the regional office logged it as an appeal from one of Pittman's facility-level grievances regarding the delay in receiving of the DHO report, marking it as Remedy ID No. 730676-R1. ( See Doc. 1, at 28; Doc. 1, at 27; Doc. 10-2, at 21). This appeal was rejected on the ground that Pittman's facility-level grievance regarding the delay was still pending before the facility warden. (Doc. 1, at 27; Doc. 10-2, at 21).
Pittman resubmitted his appeal, which was received by the regional office on May 8, 2013. (Doc. 1, at 28; see also Doc. 1, at 26; Doc. 10-2, at 21). On resubmission, the regional office logged the document correctly as an appeal from the DHO report, this time marking it as Remedy ID No. 733679-R1. (Doc. 1, at 28; Doc. 1, at 26; Doc. 10-2, at 21). On May 9, 2013, Pittman's appeal from the DHO report was rejected as untimely. (Doc. 1, at 26; Doc. 10-2, at 23). The rejection notice expressly acknowledged that the appeal had been first received on April 22, 2013, but found it to be untimely because it had been submitted approximately one month after the deadline for appeal had expired. (Doc. 1, at 26; Doc. 10-2, at 23).
Pittman did not appeal the regional office's decision to the BOP central office level, as is required for a federal inmate to exhaust administrative remedies. See 28 C.F.R. § 542.15(a).
On May 27, 2013, Pittman submitted the instant § 2241 petition to the Court for filing, alleging that he was denied the minimum procedural due process rights afforded to inmates in prison disciplinary proceedings. (Doc. 1). See generally Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). On August 2, 2013, the Respondent answered the petition, contending that Pittman failed to exhaust his available administrative remedies prior to filing his petition, that relief on these claims is barred due to his procedural default, and that Pittman's claims are meritless in any event. (Doc. 10). On August 29, 2013, the Court received and filed Pittman's brief in reply to the Respondent's answer. (Doc. 17).
" Federal prisoners are ordinarily required to exhaust their administrative remedies before petitioning for a writ of habeas corpus pursuant to § 2241." Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996). Exhaustion is required because:
(1) allowing the appropriate agency to develop a factual record and apply its expertise facilitates judicial review; (2) permitting agencies to grant the relief requested conserves judicial resources; and (3) providing agencies the opportunity to correct their own errors fosters administrative autonomy.
Proper exhaustion requires that " a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court." Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006).
Under the BOP's administrative remedy program, the first level appeal from a DHO decision is an appeal to the Regional Director. 28 C.F.R. § 542.14(d)(2); see also 28 C.F.R. § 541.8(i). An inmate may appeal a DHO report by submitting the appropriate form to the Regional Director within twenty calendar days from the date when the DHO report was signed. See 28 C.F.R. § 542.15(a); see also 28 C.F.R. § 542.14(d)(2). An inmate who is not satisfied with the Regional Director's response may further appeal by submitting the appropriate form to the General Counsel at BOP's central office within thirty calendar days from the date when the Regional Director signed the response. 28 C.F.R § 542.15(a). This appeal to the General Counsel is the final step in the administrative appeals process for disciplinary decisions. See 28 C.F.R. § 542.15(a) (" Appeal to the General Counsel is the final administrative appeal.").
In this case, the DHO report was signed on March 4, 2013. (Doc. 10-2, at 49). Pittman's appeal to the Regional Director was received by the regional office on April 22, 2013, and denied as untimely. (Doc. 1, at 26; Doc. 1, at 28; Doc. 10-2, at 23). Notably, however, the DHO report itself advised Pittman that he had twenty days from the date of its receipt to appeal. (Doc. 10-2, at 49). Later, in denying a grievance appeal about the delay in delivery of the DHO report, the Regional Director's response similarly advised Pittman that the twenty-day time frame for appeal from a DHO report began upon its receipt . (Doc. 10-2, at 29). Consistent with this, Pittman contends that his appeal to the Regional Director was timely filed on April 22, 2013, eleven calendar days after he claims to have received the DHO report on April 11, 2013.
Regardless of the timeliness of Pittman's first-level appeal to the Regional Director, Pittman failed to timely submit an appeal to the General Counsel, and thus he cannot complete the administrative process. See 28 C.F.R. § 542.15(a); Moscato, 98 F.3d at 760. This failure to satisfy the procedural rules of the BOP's administrative remedy program constitutes a procedural default. Moscato, 98 F.3d at 760.
" [I]f a prisoner has failed to exhaust his administrative remedies due to a procedural default and the default renders unavailable the administrative process, review of his habeas claim is barred unless he can demonstrate cause and prejudice." Moscato, 98 F.3d at 761. To demonstrate " cause" for a procedural default, the petitioner must show that " some objective factor external to the [petitioner's] defense impeded [his] efforts to comply with [a] procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Meanwhile, to demonstrate " actual prejudice, " the petitioner must show " not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantive disadvantage." Carrier, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)).
Pittman argues that late delivery of the DHO report caused his default. While the alleged late delivery of the DHO report might justify the late filing of his initial appeal to the Regional Director, it did not preclude him from submitting a timely appeal from that decision to the General Counsel. Indeed, Pittman offers no explanation whatsoever for his failure to timely appeal to the General Counsel.
Accordingly, in the absence of any showing of cause sufficient to excuse his procedural default, it is recommended that the petition be denied on the ground that Pittman's federal habeas claims are barred by procedural default.
Based on the foregoing, it is recommended that the petition (Doc. 1) be DENIED and DISMISSED WITH PREJUDICE.