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Gonzales v. Commandant, United States Disciplinary Barracks

United States District Court, E.D. Kentucky

April 4, 2013

RICARDO K. GONZALES, Petitioner,
v.
COMMANDANT, UNITED STATES DISCIPLINARY BARRACKS, FORT LEAVENWORTH, KANSAS, et. al., Respondents

As Amended April 5, 2013.

Page 689

For Ricardo K. Gonzales, Military Inmate, FMC Lexington, Petitioner: Jonathan P. Tomes, LEAD ATTORNEY, PRO HAC VICE, Richard D. Dvorak, PRO HAC VICE, Tomes & Dvorak, Chartered, Overland Park, KS.

For Commandant, United States Disciplinary Barracks, Fort Leavenworth, Kansas, Warden Deborah A. Hickey, FMC, Lexington, Respondents: Cheryl D. Morgan, U.S. Attorney's Office, EDKY, Lexington, KY.

OPINION

Page 690

AMENDED MEMORANDUM OPINION & ORDER

Joseph M. Hood, Senior United States District Judge.

This matter is before the Court on Ricardo Gonzales's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 [D.E. 1]. [1] The United States has responded [D.E. 16], and the time has passed for Petitioner's reply. Thus, this matter is now ripe for review. For the reasons which follow, the petition will be denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

In August 2003, Petitioner, a former captain in the United States Army, was found guilty of several offenses including sodomy with a child under the age of sixteen, unlawful damage of military and non-military property, and making false official statements, among other charges. [D.E. 16-1 at 6-9]. He was originally sentenced to fifteen years of confinement and dismissal from the army. [D.E. 16-1 at 9]. Ultimately, the convening authority only approved a sentence of eleven years and nine months with a sixty-one day confinement credit and dismissal from service. [D.E. 1-1 at 7].

On April 20, 2010, the Army Clemency and Parole Board (" ACPB" ) informed Petitioner that he would be placed on mandatory supervised release (" MSR" ) on his minimum release date. [D.E. 16-1 at 14, 26]. As conditions of his MSR, Petitioner was required to enroll in and successfully complete an appropriate child sex offender aftercare program. [D.E. 16-1 at 18-19]. Further, he was told that, if state law so required, he would have to register as a sex offender. [D.E. 16-1 at 19]. Petitioner was instructed to submit an acceptable supervision plan for his MSR, as required by Department of Defense Instruction 1325.7. [D.E. 16-1 at 13-24]; [D.E. 16-10, Instruction 1325.7, at 26 (" The prisoner shall be required to submit a parole plan and agree in writing to abide by that plan." )]. However, Petitioner's submitted plans to live with his wife or sister were denied because his wife was unwilling to accept him into her home, and his sister resided in a one-room studio apartment

Page 691

that inspectors determined was inappropriate living space for two adults. [D.E. 16-1 at 24-25].

After these MSR plans were rejected, Petitioner failed to provide acceptable plans at the ACPB's request. [D.E. 16-4 at 10-11]. Accordingly, Petitioner's case was forwarded to a Discipline and Adjustment Board (" DAB" ) in August 2010, where he was afforded the opportunity to submit evidence and arguments on his behalf. [D.E. 16-4 at 5-16]. The DAB found him guilty of violating a lawful order, and held that he forfeited ninety days of abatement credit as a result; however, Petitioner was informed that if he submitted a valid MSR plan, his credits would be restored. [D.E. 16-4 at 12]. When Petitioner again failed to submit a valid MSR plan, he was brought back before the DAB in November 2010. [D.E. 16-3 at 24-33]. This time, the DAB held that Petitioner ...


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