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Redmond v. Holland

United States District Court, E.D. Kentucky, Southern Division, London

July 9, 2015

JESSE R. REDMOND, JR., a/k/a JESSE R. REDMOND, [1] Petitioner
v.
J. C. HOLLAND, WARDEN, Respondent.

MEMORANDUM OPINION AND ORDER

DAVID L. BUNNING, District Judge.

Petitioner Jesse R. Redmond, Jr., a/k/a Jesse R. Redmond, is an inmate confined by the BOP in the United States Penitentiary ("USP")-McCreary, located in Pine Knot, Kentucky. Redmond has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the evidence upon which a Disciplinary Hearing Officer ("DHO") at another prison relied upon in finding him guilty of stealing various items in late October, 2012. See 2241 Petition, R. 1; Amended § 2241 Petition, R. 9.[2] In this proceeding, Redmond seeks an order setting aside his disciplinary conviction.

In conducting an initial review of habeas petitions under 28 U.S.C. § 2243, the Court must deny the relief sought "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)). Because Redmond is not represented by an attorney, the Court evaluates his petition under a more lenient standard. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). Thus, at this stage of the proceedings, the Court accepts as true Redmond's factual allegations and liberally construes his legal claims in his favor. As explained below, however, Redmond's habeas petition will be denied because he has not alleged facts supporting his assertion that his disciplinary conviction should be set aside.

I. BACKGROUND

On October 31, 2012, Redmond was confined in the USP-Lewisburg, located in Lewisburg, Pennsylvania. On that date, at 9:30p.m., "C." Lytle, a USP-McCreary Correctional Officer, was conducting a random inspection of Cell 119, which Redmond occupied. When Officer Lytle opened Redmond's cell, he discovered a honey bottle half-filled with hand sanitizer made of 62% ethyl alcohol; four plastic bags, two filled with uncooked rice, one filled with uncooked grits, and one filled with brown sugar; 16 alcohol prep pads saturated with 70% isopropyl alcohol; and an identification card belonging to another USP-McCreary inmate. Officer Lytle issued an Incident Report charging Redmond with: (1) possession of narcotics, marijuana, drugs, alcohol, and intoxicants not prescribed by the medical staff, in violation of BOP Prohibited Acts Code ("PAC") 113; (2) introduction or making of narcotics, marijuana, drugs, alcohol, and intoxicants not prescribed by the medical staff, in violation of PAC 111; (3) stealing, in violation of PAC 219; (4) possession of stolen property, in violation of PAC 226; and (5) possession of anything not authorized or retention by receipt of an inmate, in violation of PAC 305. [R. 1, p. 15, § 9] Officer Lytle concluded that Redmond had stolen these items because he was at that time employed as a hospital orderly at the prison. [ Id., § 11] Based on the photographic evidence and Officer Lytle's report, the Unit Disciplinary Committee at USP-Lewisburg referred the charges to the DHO for further disposition. [ Id., §§ 18-20]

The case proceeded to a hearing before the DHO. Redmond did not attach a copy of the DHO's Report, but even so, the administrative remedy documentation which he did provide explains what transpired at the disciplinary hearing and thereafter, during the administrative remedy process. J. L. Norwood, the Director of the BOP's Northeast Regional Office ("NERO"), states in his (or her) March 6, 2013 administrative remedy response that the DHO issued his Report on the disciplinary hearing on December 17, 2012; that the DHO found Redmond guilty of possessing stolen property in violation of PAC 226; and that the DHO imposed the following sanctions on Redmond: 30 days' confinement in disciplinary segregation; 90 days' loss of commissary and visiting privileges; and 90 days' loss of telephone privileges. [R. 1, p. 14][3]

Redmond then appealed the DHO's Report to the NERO, asserting that the conviction was not supported by the evidence because no one had complained that the items found in his locker had been stolen. Norwood denied Redmond's BP-10 appeal, stating as follows:

The DHO reasonably determined you committed the prohibited act based on the following. On October 31, 2012, a search of your cell revealed numerous food and medical items in your locked locker. The items were not issued to you through regular channels. As such, staff reasonably concluded they were stolen. Although you were not observed stealing the items, you were found in possession of them, a fact you admitted.
The record in this case reflects substantial compliance with Program Statement 5270.09, Inmate Discipline. The decision of the DHO was based on the greater weight of the evidence, and the sanctions imposed were consistent with the severity level of the prohibited act.... Accordingly, your appeal is denied.

[R. 1, p. 14]

Redmond then filed a BP-11 appeal with the BOP's Central Office, arguing therein that the DHO had insufficient evidence upon which to base his finding of guilt, and that the DHO failed or refused to consider other factual scenarios or possibilities which might have led to the presence of the items discovered in his cell on October 31, 2012. [ Id., pp. 11-13]

On August 2, 2013, the BOP's Office of Information Policy issued a letter acknowledging Redmond's appeal, assigning a case number to it, and advising Redmond that it would address his appeal in the order it was received. [ Id., p. 10] Redmond states that the BOP Central Office has not responded to his final administrative appeal. [ Id., p. 4] Thus, by operation of regulation, the Central Office has denied Redmond's BP-11 appeal. If an inmate does not receive a response within the time allotted, he may consider the absence of a response to be a denial at that level. 28 C.F.R. § 542.18.

II. CLAIMS ASSERTED IN REDMOND'S § 2241 PETITION

Redmond reiterates the argument which he asserted in his administrative appeal, i.e., that the evidence upon which the DHO relied in finding him guilty of the PAC 226 violation was insufficient. Redmond contends that the disciplinary conviction violated his right to due ...


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