King v. Ebbert

JAMES KING, Petitioner, v. WARDEN DAVID EBBERT, Respondent.

CIVIL ACTION NO. 3:15-CV-01937

CIVIL ACTION NO. 3:15-CV-02483

CIVIL ACTION NO. 3:16-CV-00953

CIVIL ACTION NO. 3:16-CV-01863

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

November 28, 2016

(NEALON, J.)

(MEHALCHICK, M.J.)

REPORT AND RECOMMENDATION

The Court has received and filed a series of four petitions for a writ of habeas corpus submitted pursuant to 28 U.S.C. § 2241, each signed and dated by the Petitioner, James King. The first petition, Case No. 3:15-CV-01937 (Petition 1), was filed by the Court on October 6, 2015 and dated by King on September 23, 2015. (Petition 1, Doc. 1). The second petition, Case No. 3:15-CV-02483 (Petition 2), was filed by the Court on December 28, 2015 and dated by King on December 21, 2015. (Petition 2, Doc. 1). The third petition, Case No. 3:16-CV-00953 (Petition 3), was filed by the Court on May 23, 2016 and dated by King on May 15, 2016. (Petition 3, Doc. 1). The fourth and final petition, Case No. 3:16-CV-01863 (Petition 4), was filed by the Court on September 9, 2016 and dated by King on September 4, 2016. (Petition 4, Doc. 1). King is an inmate currently incarcerated at USP Lewisburg, located in Lewisburg, Pennsylvania. Because King's petitions share common legal issues and facts, the Court addresses all four petitions in this Report and Recommendation.

I. BACKGROUND

King is currently serving a federal sentence of 110 months' imprisonment that was imposed by the United States District Court for the Northern District of West Virginia on June 20, 2005 after King pleaded guilty to a charge of bank robbery.¹ (Petition 1, Doc. 1, ¶ 4). Each of the four petitions now before this Court stem from allegations that King's due process rightswere violated during a series of disciplinary hearings where he was found guilty of several prohibited acts while incarcerated at USP Allenwood in White Deer, Pennsylvania, and later at USP Lewisburg, King's current place of incarceration. All four petitions were served on Respondent, who answered that King is not entitled to habeas relief because King failed to exhaust administrative remedies with regard to Petitions 3 and 4 and that the disciplinary proceedings that are the basis for Petitions 1 and 2 were conducted in accordance with due process. (Petition 1, Doc. 15; Petition 2, Doc. 10; Petition 3, Doc. 4; Petition 4, Doc. 4). King filed replies to each answer, and accordingly all four petitions are now ripe for disposition.² (Petition 1, Doc. 16; Petition 2, Doc. 11; Petition 3, Doc. 5; Petition 4, Doc. 5).

A. PETITION 1: CLAIMS OF HABEAS PETITION DOCKET NO. 3:15-CV-01937

On March 6, 2015, Incident Report No. 2690426 was issued by Lieutenant L. Powell charging King with violating Code 203 "Threatening another with bodily harm." (Petition 1, Doc. 1-1, at 1). Powell described the incident as follows:

On March 6, 2015, at approximately 2:00 p.m., I completed a Threat Assessment on inmate King, James, Reg. No. 05005-087. Inmate King admitted to writing the ten letters included in the threat assessment. The letters are dated between December 11, 2014 and February 2, 2015. Most of the letters are addressed to "Pammy King" who is identified as Pamela Laubach . . . . Inmate King makes reference in the letter dated February 24, 2015, that he is capable of violence. He wrote multiple letters, revealing his anger at Mr. Heath DHO Cerney, the SIS department and Ms. Laubach. In the body of these letters, he uses coded messages, referring at times to "research" he assigned to his brother, Danny, and Pamela. He inferred in one letter that his brother, who lives in Pennsylvania, will do whatever he asks of him. The letters implied that King was attempting to uncover information on staff as related in the letter dated February 24, 2015, where he stated, "But to be honest, I'm not appealing anymore. After I got allthe information on fat ass and his two cronies, I'm gonna get justice my own way." It can be concluded that an underlying theme of the letters was to gather information on staff, in order for King to "get justice" his own way. King is not referring to the administrative remedy process as he specifically stated, "I'm not appealing it anymore." Due to the fact that inmate King has ties to family and friends in several local communities, it can be concluded that this is a viable threat.

(Petition 1, Doc. 1-1, at 1).

The incident was initially referred to the Federal Bureau of Investigations ("FBI") for possible prosecution, which the FBI declined on March 8, 2015. (Petition 1, Doc. 15-1, at 9). King was then provided a copy of the incident report and advised of his right to remain silent, which he exercised. (Petition 1, Doc. 1-1, at 2). An initial hearing was held before the Unit Disciplinary Committee (UDC) on March 9, 2015, at which time the UDC chose to refer the incident report to the Discipline Hearing Officer (DHO). (Petition 1, Doc. 15-1, at 9). The UDC recommended sanctions against King that included the loss of good conduct time and six months' loss of commissary and phone privileges. (Petition 1, Doc. 15-1, at 9).

At the conclusion of the UDC hearing, King was provided "Notice of Discipline Hearing before the DHO" and "Inmate Rights at Discipline Hearing" forms, which King signed to indicate that he had been advised of his rights.³ (Petition 1, Doc. 15-1, at 11-12).Additionally, King indicated that he did not wish to call witnesses for the DHO hearing but did request assistance from a staff representative. (Petition 1, Doc. 1-1, at 2).

The DHO hearing was held on March 11, 2015. (Petition 1, Doc. 1-1, at 2). Mr. F. Passaniti was appointed as a staff representative on King's behalf. (Petition 1, Doc. 1-1, at 2). The DHO report notes that Passaniti was provided all documents that the DHO considered in reaching its decision, including: an inmate threat assessment; an inmate investigative report; reports and copies of King's e-mails, letters, and other communications; King's visitor list; the incident report; and a copy of Freedom of Information Act requests involving King. (Petition 1, Doc. 1-1, at 2-3). Furthermore, the DHO report states that King was advised of his rights at the onset of the hearing, indicated that he understood them, and chose not to present witnesses or documentary evidence or raise any procedural challenges. (Petition 1, Doc. 1-1, at 2). King did, however, provide a brief statement in which he claimed that excerpts of his outgoing letters were taken out of context to create the impression that he was threatening prison staff, and that his reference to numbered "garage doors" in the letters was just an innocuous code for thevarious letters themselves. (Petition 1, Doc. 1-1, at 2).

After reviewing the documentary evidence and considering King's statement, the DHO found "the misconduct and charge to be best supported as [C]ode 296 (Misuse of the mail)." (Petition 1, Doc. 1-1, at 4). The DHO reached its conclusion by reasoning that a Code 296 violation is supported by the weight of the evidence and King's own admission that he wrote in code. (Petition 1, Doc. 1-1, at 4). Additionally, the DHO noted that a Code 296 violation is of the same severity level as the Code 203 violation that King was initially charged with in the incident report, and that the incident report contained sufficient facts to also support a Code 296 violation. (Petition 1, Doc. 1-1, at 4). The DHO imposed the following sanctions on King: (1) disallowance of 27 days good conduct time; (2) forfeiture of 43 days non-vested good conduct time; (3) 60 days disciplinary segregation (suspended for 180 days pending no other misconduct); (4) 18 months loss of phone and email privileges; and (5) a $171.00 fine that King refused to pay. (Petition 1, Doc. 1-1, at 4). The DHO's written decision was issued on March 13, 2015, and a copy of the report was delivered to King on March 17, 2015. (Petition 1, Doc. 1-1, at 4).

Prison staff informed King of his appeal rights upon delivering the DHO's written decision. (Petition 1, Doc. 1-1, at 4). King filed an appeal of the DHO's decision to the Regional Director on March 27, 2015, Administrative Remedy Identification No. 816351-R2, in which he argued that he was denied due process during the DHO hearing because he had no opportunity to put on a defense against the Code 296 charge. (Petition 1, Doc. 1-1, at 5). Specifically, King claimed that: (1) the elements of a Code 296 charge were markedly different from those of a Code 203 charge that he presumed he would be facing; (2) the Code 296 charge was never mentioned in the incident report or considered by the UDC; (3) he was denied theopportunity to present witnesses as to the Code 296 charge; (4) he successfully defended against the Code 203 charge; and (5) the term "garage door" is merely a nickname as opposed to a code. (Petition 1, Doc. 1-1, at 5). On May 14, 2015, the Regional Director denied King's appeal, noting that "Program Statement 5270.09, Inmate Discipline, states the DHO shall consider all evidence presented at the hearing and find that the inmate committed the prohibited act charged and/or a similar prohibited act if reflected in the incident report or did not commit the prohibited act charged." (Petition 1, Doc. 1-1, at 6); see also 28 C.F.R. § 541.8(a)(1). The Regional Director further reasoned that there was sufficient evidence in the incident report to support the DHO's finding that King violated Code 296, and therefore the DHO substantially complied with Program Statement 5270.09. (Petition 1, Doc. 1-1, at 6).

The Regional Director's response also informed King of his right to appeal the decision to the General Counsel at Federal Bureau of Prisons ("BOP") Central Office. (Petition 1, Doc. 1-1, at 6). King contends—and Respondent concedes—that he properly exhausted administrative remedies by filing a timely appeal to the Central Office on June 15, 2015. (Petition 1, Doc. 1, ¶ 8; Petition 1,...