United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
Wilhoit, Jr. United States District Judge
inmate Salah Mohamed has filed a pro se petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2241 to
challenge the imposition of a prison disciplinary sanction.
[D. E. No. 1] The Court must screen the petition pursuant to
28 U.S.C. § 2243. Alexander v. Northern Bureau of
Prisons, 419 Fed.Appx. 544, 545 (6th Cir.
2012, Mohamed was sentenced in Richmond, Virginia to 246
months imprisonment for his role in a conspiracy to traffic
in crack cocaine and heroin, sell contraband cigarettes, and
to launder the proceeds. United States v. Saleh
Mohamed, No. 3: 11-CR-280-HEH-2 (E.D. Va. 2011). While
serving that sentence in Bureau of Prisons ("BOP")
custody at the federal penitentiary in Lee, Virginia, in
April and May 2017 Mohamed conspired with another inmate to
escape the facility, obtain forged passports, and return to
Yemen. On May 3, 2017, Mohamed walked off the prison grounds,
but was captured in Mexico three weeks later. Mohamed
subsequently pleaded guilty to conspiracy to escape from a
federal correctional institution and escape from federal
custody, and in mid-2017 he was sentenced to 60 months
imprisonment. United States v. Sal ah Mohamed, No.
2: 17-CR-14-JPJ (W.D. Va. 2017).
escape was not just a crime, but also a prison disciplinary
offense. Shortly after he escaped, in May 2017 prison
officials in Virginia issued an Incident Report charging
Mohamed with Escape from a Non-Secure Institution, a BOP Code
102 offense. [D. E. No. 1-1 at Page ID #17] BOP officials did
not immediately prosecute that offense because Mohamed was on
the lam, or even after his capture because he was then being
prosecuted in federal court for six months. Following his
assignment to a new federal prison in Ashland, Kentucky, BOP
officials resumed prosecution of the disciplinary offense and
in March 2018 issued an updated Incident Report. On March 29,
2018, a Disciplinary Hearing Officer ("DHO") held a
hearing on the charges. Mohamed admitted the escape but asked
for leniency with respect to the suspension of telephone
privileges so that he could communicate with his family and
children in Yemen. The DHO found Mohamed guilty of the
offense and imposed several sanctions, including the
disallowance of 54 days of good conduct time and the
suspension of telephone privileges for one year. [D. E. No.
1-1 at Page ID #18-24]
April 4, 2018, Mohammed filed an appeal to the Regional
Office. He did not assert any impropriety in the processing
of the charges or the DHO hearing, but instead noted that a
criminal sentence had already been imposed for his escape and
requested that his telephone privileges be restored so that
he could speak with his family. [D. E. No. 1-1 at Page ID
#25-28] While that appeal was still pending, the DHO issued
an amended DHO report on May 11, 2018. The amended report was
substantially identical to the original save for an expanded
statement explaining the reasons for the sanctions imposed.
Mohamed, having not yet received a decision from the Regional
Office, filed an appeal from the amended DHO Report on May
31, 2018. As before, he admitted that he had escaped but
asked only that "consideration be given to substituting
some other sanction for the telephone restriction or
modifying the telephone restriction to permit communication
with my children." [D. E. No. 1-1 at Page ID #30-35]
Regional Office denied Mohamed's original appeal on May
23, 2018, noting that procedures were properly followed and
the sanction was appropriate. [D. E. No. 1-1 at Page ID #29]
Mohamed filed an appeal to the Central Office on June 8,
2018, complaining that the prosecution of the disciplinary
offense was delayed following his escape and prosecution, and
expressing confusion as to why an amended DHO Report had been
issued and its impact on his appeal of his sanctions.
Characterizing these events as a failure by the BOP to follow
its own regulations regarding disciplinary charges, Mohammed
asked the BOP to expunge the conviction and sanctions. The
Central Office rejected that appeal on July 12, 2018 for
failure to include the correct number of copies, but afforded
Mohamed fifteen days to correct the error and resubmit his
appeal. Id. at Page ID # 36-38. The Regional Office
denied Mohammed's second appeal on July 18, 2018, for the
same reasons it denied the first. On August 3, 2018, in a
single packet Mohamed sent documents to the Central Office:
(1) to address the deficiencies in his first appeal to the
Central Office, and (2) to file an appeal to the Central
Office from the Regional Office's denial of his second
appeal. [D. E. No. 1-1 at Page ID #36-41] Mohamed states
that the Central Office has not responded to either of his
appeals. [D. E. No. 1 at Page ID #7]
petition, Mohamed contends that his disciplinary conviction
and the resulting sanctions should be expunged because the
BOP did not follow its own regulations in numerous respects.
Specifically, he argues that the Unit Disciplinary Committee
and/or DHO was required to hold a hearing on his disciplinary
charges while he was still a fugitive or while his criminal
prosecution was ongoing; the DHO was not an impartial
decision maker because he must have been "involved"
in its prosecution because the investigating officer rewrote
the original Incident Report on the same day the DHO
requested that he do so; the DHO's disallowance of 54
days of good conduct time was not warranted by appropriate
aggravating circumstances; and the DHO was not authorized to
file an amended DHO Report. [D. E. No. 1 at Page ID #8-15]
thoroughly reviewed the petition and the materials provided
in support of it, the Court will deny the petition because
the claims asserted within it are both unexhausted and
substantively without merit.
a prisoner may seek habeas relief under Section 2241, he must
exhaust his administrative remedies within the Bureau of
Prisons. Fazzini v. Northeast Ohio Correctional
Center, 473 F.3d 229, 231 (6th Cir. 2006); Campbell
v. Barron, 87 Fed.Appx. 577, 577 (6th Cir. 2004).
Administrative remedies must be exhausted prior to filing
suit and in full conformity with the agency's claims
processing rules. Woodford v. Ngo, 548 U.S. 81,
92-94 (2006). The purpose of the exhaustion requirement is to
ensure that the agency has an opportunity to review and
revise its actions before litigation is commenced, which
preserves both judicial resources and administrative
autonomy, and also to ensure that a court reviewing the
agency's final action does so upon a developed and
complete evidentiary record. Noriega-Lopez v.
Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003); Moscato
v. Fed. Bureau of Prisons, 98 F.3d 757, 761-62 (3d Cir.
of Mohamed's appeals he admitted guilt of the escape
charge but asked only that his telephone privileges be
restored immediately or sooner than one year. [D. E. No. 1-1
at Page ID #25-28; 30-35] He raised no other claim, and none
of the matters he now asserts in his habeas petition were
mentioned. In his appeal to the Central Office Mohamed did
assert - for the first time - some of his complaints about
the BOP's processing of the disciplinary charges. [D. E.
No. 1-1 at Page ID # 36-41] But this is not permitted:
"[a]n inmate may not raise in an Appeal issues not
raised in the lower level filings." 28 C.F.R. §
of the BOP regulation which prohibits such sandbagging,
courts do not permit a habeas petitioner to assert a claim
which was not first presented to prison authorities for
consideration. To properly exhaust a claim, an inmate must
identify the issue with sufficient particularity to permit
prison officials a reasonable opportunity to address it.
Johnson v. Testman, 380 F.3d 691, 697 (2d Cir.
2004). An inmate may not assert a claim in litigation that is
wholly distinct, factually or legally, from the one presented
to prison officials during the grievance process. Johnson
v. Woodford, No. CV 04-05995-GHK, 2010 WL 4007308, at *4
(CD. Cal. April 20, 2010) ("Where one set of facts and
circumstances gives rise to more than one potential claim,
the plaintiff cannot exhaust all of the potential claims by
merely exhausting one such claim."); Watson-El v.
Wilson, No. 08-C-7036, 2010 WL 3732127, at *9(N.D. Ill.
Sept. 15, 2010) (habeas claim different than claim presented
in prison grievances "cannot [be pursued] in federal
court having never given the prison the opportunity to
investigate and correct the situation. The plaintiffs
grievance was insufficient to alert prison officials to the
'nature of the wrong.'"); Pruitt v.
Holland, No. 10-CV-111-HRW, 2011 WL 13653, at *4-6 (E.D.
Ky. Jan. 4, 2011) (collecting cases). Because Mohamed did not
properly present his present claims to the BOP during the
inmate grievance process, they are unexhausted and cannot be
asserted in this proceeding.
complaints regarding the BOP's handling of the Incident
Report are also without merit. As a preliminary matter,
Mohamed's threshold assertion that he has a property or
liberty interest in BOP regulations and the contents of its
Program Statements that is protectable under the Due Process
Clause is incorrect. With respect to BOP regulations, they
are "primarily designed to guide correctional officials
in the administration of a prison", not to "confer
rights on inmates." Sandin v. Conner, 515 U.S.
472, 481-82 (1995). Therefore, an agency's failure to
follow its own policies in a given instance does not of
itself implicate due process rights. See, e.g., Bonner v.
Federal Bureau of Prisons, 196 Fed.Appx. 447, 448 (8th
Cir. 2006) ("[A] violation of prison regulations in
itself does not give rise to a constitutional
violation."); Hovater v. Robinson, 1 F.3d 1063,
1068 n.4 (10th Cir. 1993) ("a failure to adhere to
administrative regulations does not equate to a
constitutional violation."). And the BOP's Program
Statements are not regulations at all but are merely internal
interpretive rules, Reno v. Koray, 515 U.S. 50, 61
(1995), and do not create enforceable rights or obligations.
Thus even an admitted failure to strictly follow BOP
regulations or internal guidelines would not provide a basis
for habeas relief.
they did, the BOP's actions are consistent with its own
rules. First, when Mohamed escaped and was subject to pending
criminal charges, the BOP properly deferred consideration of
its disciplinary sanctions until that process was concluded.
BOP Program Statement ("PS") 5270.09 Ch. 2 (July 8,
2011) ("When it appears likely that the incident may
involve criminal prosecution, the investigating officer
suspends the investigation. Staff may not question the inmate
until the FBI or other investigative agency releases the
incident report for administrative processing. The incident
report should then be delivered to the inmate by the end of
the next business day. The time frame for processing the
Incident report is suspended until it is released for
processing."). Nor were the Unit Disciplinary Committee
or the DHO required to hold a hearing on his charges in
absentia. Because Mohamed was charged with a Greatest
Severity Act, the UDC is not involved except in a purely
ministerial capacity, as it must automatically refer the
charges to the DHO. 28 C.F.R. § 541.7(a)(4). And the DHO
has the option, not the obligation, to hold an in
absentia hearing. PS 5270.09 Ch. 5 ("When an inmate
escapes, and is in local custody where a hearing may be held,
an in-person rather than in-absentia hearing may be held at
the DHO's discretion."). In this case, the BOP
deferred consideration of the disciplinary charges until the
criminal charges were resolved, by which time Mohamed was in
custody in Kentucky, not Virginia. The BOP acted in
accordance with its own rules and regulations.
Incident Report was also rewritten once the criminal
prosecution was over, and the DHO filed an amended report
after the original was issued. But the additions to these
documents were merely explanatory; no material changes were
made, and Mohamed claims no prejudice resulting from them. He
also claims that the DHO was biased because the rewritten
Incident Report was issued on the same day the DHO requested.
The mere fact that a revised report was issued promptly
supports no inference that the DHO was in any way involved in
its creation or was biased. A mere allegation of bias does
not undermine the presumption of integrity afforded a prison
disciplinary tribunal; instead, the petitioner must provide
"some substantial countervailing reason to conclude that
a decision maker is actually biased with respect to factual
issues being adjudicated." Withrow v. Larkin,421 U.S. 35, 46-47 ...