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Perry v. Wilson

United States District Court, N.D. Texas, Abilene Division

April 7, 2017

LEON PERRY, Petitioner,
v.
ERIC WILSON, Warden, FCI-Petersburg Low, Respondent.

          OPINION AND ORDER [1]

          E. SCOTT FROST UNITED STATES MAGISTRATE JUDGE.

         Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 filed by Petitioner, Leon Perry, a federal prisoner who was confined at FCI-Big Spring in Big Spring, Texas, at the time the petition was filed.[2] In addition to the § 2241 petition and attachments, the Court has a response from the Respondent with an Appendix containing the documents related to the disciplinary proceedings challenged in this case. (Docs. 1, 10, 11.) After considering the pleadings and relief sought by Petitioner, and the applicable law, the Court has concluded that the § 2241 petition must be denied.

         I. BACKGROUND

         Leon Perry pled guilty to conspiracy to possess with intent to distribute, and to distribute, cocaine base and cocaine hydrochloride, in violation of 21 U.S.C. § 846 in the United States District court for the Southern District of Georgia. That court imposed a sentence of 240 months' imprisonment on December 10, 2007. United States v. Perry, No 6:06-CR-026-JRH-GRS (Judgment December 11, 2007).[3] Perry's current projected good conduct time release date is March 6, 2018. See www.bop.gov search of Leon Perry, No. 13004-021, last visited April 6, 2017.

         On October 19, 2013, while incarcerated at FCI-Fort Dix, Perry received an incident report charging him with possession of a hazardous tool in violation of prohibited act code 108. (Respondent's Appendix, (Doc. 11) at 4, §§ 13-15.)[4] The reporting officer stated that when he and another employee were conducting a random "shakedown" (i.e., search) of the two-man room to which Perry was assigned, he found a Samsung cellular telephone in a pocket of Perry's uniform, which was hanging on the side of Perry's locker. (/<i. at 4, § 11.) The employee also stated that Perry's name and registration number were on the uniform. (Id.) An investigation of the incident report was completed that same day. The investigator advised Perry of his qualified right to remain silent. (Doc. II, at 5, § 23.) Although Perry offered he "has no statement", he did acknowledge that his uniform had been hanging on the outside of his locker. (Id. at 5, § 24.)

         Perry then appeared before a Unit Disciplinary Committee (UDC) on October 25, 2013. (Doc. 11, at 4, § 21.) He provided a statement to the UDC, which was recorded as, "My uniform was down stairs in the dryer and I have no idea how my uniform got in my room. I went to eat and went to the dryer and my uniform was not there. When I went upstairs, the officer was shaking down the room." (Id. at 4, § 17.) The UDC referred the matter to a Disciplinary Hearing Officer (DHO) for disposition. (Id. at 4, § 18.) Perry was provided notice of his rights before the DHO. (Doc. 11, at 7.) Although he was provided the opportunity to request witnesses and a staff representative, Perry did not request a staff representative, but did request one witness. (Doc. 11, at 9.)

         Initial Hearing

         On November 14, 2013, Perry appeared before the DHO. (Doc. 11, at 11, § 1(B).) He provided a statement to the DHO, which the DHO recorded as: "I went to eat chow. I came back. The uniform was in the laundry room when it was in my room. They were shaking down. They found the phone in my brown uniform in the dryer." (Id. at 11, § 111(B).) In addition to the reporting employee's description of the incident and the investigation of the incident report, the DHO also considered: a memorandum written by the FCI-Fort Dix employee who was present when the reporting employee found the cellular telephone; a black and white photograph of the telephone; a chain of custody log for the telephone; and an Administrative Detention Order. (Id. at 11, § III(D); Doc. 11, at 15, 17, and 19.) Based on this evidence, the DHO concluded that Perry committed the disciplinary offense with which he was charged. (Doc. 11, at 12, § IV.) The DHO provided Perry a description of the evidence relied upon in reaching this conclusion, which included the written report of the reporting employee; Perry's own statement; and the picture of the cell phone. (Id., at 12, § V.) The DHO disallowed 40 days of Perry's good conduct time and imposed 15 days of disciplinary segregation, suspended pending 90 days of clear conduct, and also suspended Perry's e-mail and telephone privileges for 90 days. (Id. at 12, § VI.) The DHO also provided the reasons for imposing these sanctions. (Id. at 12, § VII.)

         Although the DHO's report reflected that Perry requested a witness, the report did not indicate whether the witness appeared at the hearing, whether the witness provided a statement, or whether or why the witness could not be called. (Doc. 11, at 11, § III (C).) While Perry appealed the imposition of the disciplinary punishment through the BOP's administrative remedy process, he was transferred from FCI-Fort Dix to FCI-Big Spring. And, while Perry was housed at FCI-Big Spring, another DHO for FCI- Big Spring reheard the disciplinary case.

         First Rehearing

         To initiate the re-review of the disciplinary charge at FCI-Big Spring, Perry first again appeared before a UDC at FCI-Big Spring. This review was memorialized by additional darker handwritings added to the original Incident Report. (Doc. 11, at 4, § § 17-21.) During the appearance before the FCI-Big Spring UDC, Perry confirmed that his statement was the same as it had been when he appeared before a UDC at FCI-Fort Dix. (Id. at 4, § 17 [darker handwriting].) The FCI-Big Spring UDC again referred the incident report to review by a DHO. (Id. at 4, §§ 18-20 [darker handwriting].) Perry was again advised of his rights before the DHO and was also again afforded the opportunity to request staff representation and witnesses. (Doc. 11, at 21; 23.) Perry again declined staff representation, but also again requested one witness, who was located at FCI-Fort Dix. (Id. at 23.)

         Perry then appeared before the FCI-Big Spring DHO on May 12, 2014. (Doc. 11, at 25, § I (L).) Perry provided a statement to the DHO, which the DHO recorded as:

I lived on the third floor. My laundry was being done on the first floor. When I came back, my uniform wasn't in the dryer. When I went to my room, they were shaking down so I went to the TV room. That's when I saw [Perry's witness] and he said he had heard someone call my name. I don't know why someone would set me up. I lived in preferred housing and a lot of people were jealous.

(Id. at 25, § III (B).) Perry's witness provided a written statement to the DHO, which read, "I've never seen inmate Perry with a cell phone or heard of him having a cell phone. I have no idea if he had one or if he didn't." (Doc. 11, at 26, § 111(C)(5).) In addition to the reporting employee's account of the incident, Perry's statement, and the statement of Perry's witness, the DHO also considered the memorandum provided by the FCI-Fort Dix employee who was ...


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