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Zilch v. Sepanek

United States District Court, E.D. Kentucky, Northern Division, Ashland

February 10, 2014

JERROD ZILCH, Petitioner,
v.
MICHAEL SEPANEK, Warden, Respondent.

MEMORANDUM OPINION AND ORDER

HENRY R. WILHOIT, Jr., District Judge.

Jerrod Zilch ("Zilch") is an inmate confined in the Federal Correctional Institution at Ashland, Kentucky. Zilch, proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his conviction of a prison disciplinary offense and the resulting sanctions. [R. 1] Zilch asserts that he is innocent of the charged offense, a Code 104A violation, and he requests that this charged offense be reduced to a Code 305 violation. Zilch has paid the requisite $5.00 filing fee.

The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F.Appx. 544, 545 (6th Cir. 2011). The Court must deny the petition "if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b)). The Court evaluates Zilch's petition under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts the petitioner's factual allegations as true, and his legal claims are liberally construed in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

Because Zilch's conviction is supported by some evidence, the Court concludes that he is not entitled to the relief he seeks and will dismiss his § 2241 petition. The rationale for this decision is set out below.

BACKGROUND

I. Disciplinary Charge, Conviction, and Administrative Appeals

On August 23, 2011, Correctional Officer Michael Waddell, S.O.S., conducted a random search of Zilch's cell, resulting in Zilch being charged with a Code 104A violation. The incident report charging that violation states, as follows:

On 08-23-11 at approximately 11:25 AM, I officer Waddell was conducting a random cell search of inmate Zilch #XXXXX-XXX cell H02-209. While searching for contraband in his secured locker I found a hand written description on how to build an explosive device with using easily accessible items from FCI Ashland, such as fuel, soda pop (coke), foam cups, ping pong balls and draino. These steps were written in step by step instructions. The letter was forwarded to the Lieutenants office and inmate Zilch was escorted to SHU.

[R. 1-1, p. 1].

Based on the papers Officer Waddell found in Zilch's secured locker, Zilch was charged with "Possession, manufacture, or introduction of a gun, firearm, sharpened instrument, knife, dangerous chemical explosive, ammunition, or any instrument used as a weapon, a Code 104A offense. Id. Being in the category of "most serious offenses, "[1] this charge was referred to a Disciplinary Hearing Officer ("DHO") for hearing, which was conducted on September 29, 2011.

Zilch appeared at the DHO hearing, stated that he understood his rights and waived his right to a staff representative and to call any witnesses at the hearing. Zilch had no documentary evidence to present at the hearing. The DHO read the charge to Zilch, questioned him about it, and he denied the charge. The DHO summarized what transpired and the colloquy that occurred between them at the hearing, as follows:

The DHO first ensured inmate Zilch had received a copy of the incident report, understood his rights, did not wish to have a staff representative or to call any witnesses, and did not have any documentary evidence to present. The DHO then read aloud Section 11 of the Incident Report and asked inmate Zilch if it were true. He denied the charge. The DHO showed him the handwritten notes attached to the incident report and asked him if this was his writing and he confirmed that it was. The DHO asked him if this was not handwritten notes on how to fabricate an explosive from regular items then what was it? He said it was simply notes that he had taken from various articles that he had read. He said the numbers beside of each entry corresponds to the article it came from. The DHO asked him what publications those articles were in? He said it came from various farming papers called "Farm Show:. He said the papers were not his and belonged to other inmates. The DHO asked him how he possessed them and he said "A guy gave it to me".

[R. 1-2, p. 1]

Based on the physical evidence, Zilch's demeanor at the DHO hearing, and his responses to the DHO's questions, the DHO found that Zilch committed the ...


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