United States District Court, N.D. Texas, Dallas Division
RICK SMIRL BOP Register No. 28854-077), Petitioner,
DJ HARMON, Warden, Respondent.
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR
L. HORAN, UNITED STATES MAGISTRATE JUDGE
Rick Smirl, a federal inmate incarcerated at BOP Seagoville
FCI, in the Dallas Division of this district, filed a
petition under 28 U.S.C. § 2241. See Dkt. No.
3. This resulting habeas action has been referred to the
undersigned United States magistrate judge for pretrial
management under 28 U.S.C. § 636(b) and a standing order
of reference from United States District Judge Sam A.
Section 2241 petition, Smirl alleges that his federal
sentence was unlawfully extended through an improper
disciplinary proceeding initiated after he tested positive
for cannabinoids. The government filed a response to the
habeas petition. See Dkt. Nos. 9 & 10. And the
deadline for Smirl to file a reply brief passed without a
brief being filed. See Dkt. No. 7.
now argues that he is entitled to discovery: “records
of recent drug test results conducted by prison officials
pursuant to PS 6060.08 upon samples associated with
Petitioner, including any urinalysis conducted immediately
surrounding his return to prison from the hospital on or
about 1/23/2017”; “medical records in
Petitioner's file produced by the hospital on or around
said date”; and “any evidence connecting
Petitioner to any positive test result for marijuana use per
se, such as chain-of-custody or signed documents such as
prescribed by PS 6060.08.” Dkt. No. 12.
habeas petitioner, unlike the usual civil litigant in federal
court, is not entitled to discovery as a matter of
course.” Reed v. Quarterman, 504 F.3d 465,
471-72 (5th Cir. 2007) (citing Bracy v. Gramley, 520
U.S. 899, 904 (1997)); see also Scott v. Michael,
Civ. A. No. 08-1262, 2009 WL 307791, at *4 (E.D. La. Feb. 6,
2009) (“A habeas petitioner is entitled to invoke all
applicable federal rules of discovery, however, it is within
the district judge's discretion and subject to the
requirement of good cause shown as to whether to allow
discovery.” (citing Rule 6(a), Rules Governing Section
2254 Proceedings for the United States District Courts)).
“The habeas petitioner is entitled to discovery only
where “good cause” is shown. [Bracy, 520
U.S. at 904.] The Supreme Court has held that good cause is
shown where “specific allegations before the court show
reason to believe that the petitioner may, if the facts are
fully developed, be able to demonstrate that he is confined
illegally and is therefore entitled to relief.”
Harris v. Nelson, 394 U.S. 286, 300 (1969).
Reed, 504 F.3d at 471-72; see also Thompson v.
Stephens, Civ. A. No. H-13-1900, 2014 WL 2765666, at *2
(S.D. Tex. June 18, 2014) (“A court may authorize
discovery only when a petitioner's substantive claims
‘establish [ ] a prima facie claim for relief,
” and his factual allegations are specific, ‘as
opposed to merely speculative or conclusory[.]'”
(quoting Murphy v. Johnson, 205 F.3d 809, 814 (5th
Cir. 2000); footnote omitted)).
rules governing Section 2254 proceedings, including Habeas
Rule 6, generally apply to proceedings under 28 U.S.C. §
2241. See Rule 1(b), Rules Governing Section 2254 Proceedings
for the United States District Courts; Ortloff v.
Fleming, 88 F. App'x 715, 717 (5th Cir. 2004) (per
curiam) (“This court has held, in a 28 U.S.C. §
2254 case, that conclusional allegations do not entitle a
petitioner to discovery and that Rule 6 of the Rules
Governing Section 2254 Cases ‘does not authorize
fishing expeditions.' There is no valid reason why the
law should be different for discovery in a 28 U.S.C. §
2241 habeas case such as this.” (citation omitted)).
of Smirl's discovery requests begins with an established
premise: “Federal habeas review of the sufficiency of
the evidence to support a disciplinary conviction is
extremely limited. Due process requires only ‘some
evidence to support the findings made in the disciplinary
hearing.'” Hunnicutt v. Stephens, No.
3:14-cv-885-G-BN, 2014 WL 2619856, at *2 (N.D. Tex. June 12,
2014) (quoting Superintendent, Mass. Corr. Institution v.
Hill, 472 U.S. 445, 457 (1985); citing Smith v.
Rabalais, 659 F.2d 539, 545 (5th Cir. Unit A Oct. 1981)
(a court must determine whether “any evidence at
all” supports disciplinary action taken by prison
officials)); see Pruitt v. Martin, 582 F. App'x
319, 320 (5th Cir. 2014) (per curiam) (“[A]
disciplinary proceeding comports with due process if ...
there is ‘some evidence' in the record to support
the disciplinary conviction.” (citing Richards v.
Dretke, 394 F.3d 291, 294 (5th Cir. 2004))); see,
e.g., Henson v. U.S. Bureau of Prisons, 213 F.3d 897,
898-99 (5th Cir. 2000) (“Given that there was
‘some evidence' supporting the punishment, and that
there would still be ‘some evidence' even if Henson
obtained a contradictory result from a retest, Henson had no
due process right to retest the pipe.” (internal
citation and footnote omitted)).
there is “some evidence” in the record, as
reflected by the government's response and its appendix -
the disciplinary hearing officer (“DHO”) relied
on an incident report and supporting evidence. See
Dkt. No. 9 at 10. As explained by the government, that report
“contains a staff member's signed statement that he
received lab results from Dallas Regional Medical Center
indicating that Petitioner had tested positive for
cannabinoids. The attached lab results confirmed the staff
member's statement. And the accompanying physician's
assistant memo concluded that nothing the Petitioner was
prescribed would yield the positive outcome.”
Id. (citing Dkt. No. 10 at 12, 19, 21, 22).
extent that Smirl's discovery requests are relevant to
the DHO's determination, they are not relevant to the
Court's “extremely limited” review of the
evidence now, in the context of considering Smirl's
Section 2241 petition. Smirl argued in his administrative
appeal of the DHO's determination that he did not provide
a urine specimen at the hospital, but he failed to support
that allegation with evidence at that time. See Dkt.
No. 10 at 31-32. And, even if Smirl obtained his requested
evidence now - and even if that evidence contradicts the
evidence that supports the DHO's determination, affirmed
on appeal - “there would still be ‘some
evidence'” to support that determination.
Henson, 213 F.3d at 898-99. Accordingly, Smirl has
not shown that good cause supports his discovery requests,
since there is no reason to believe that, with the requested
discovery, Smirl will be able to demonstrate that his right
to due process was violated on the basis that no evidence
supports the DHO's determination. See Olsen v.
Batts, No. 1:15-cv-44-BL, 2016 WL 8078307, at *3 (N.D.
Tex. Dec. 19, 2016) (“Olsen's unsubstantiated
allegations [as to chain of custody] fail to show that his
due process rights were violated. ‘Where a disciplinary
hearing does not otherwise violate a prisoner's rights,
allegations of falsified evidence are not grounds for federal
habeas relief ... Furthermore, absent some affirmative
indication of error, a lab report and the chain of custody