# Pickens v. Ishee

> District Court, W.D. North Carolina · March 25, 2024

URL: https://www.frixlaw.com/law-library/cases/10260866

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** March 25, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10260866

## How later opinions describe it (automated extraction)

- holding that entrapment was not a constitutional defense and could not form basis for habeas relief under 28 U.S.C. § 2254

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CASE NO. 1:20-cv-00353-MR

BRANDON PICKENS, )
)
Petitioner, )
) MEMORANDUM OF
vs. ) DECISION AND ORDER
)
TODD ISHEE, Secretary, North )
Carolina Department of Adult )
Correction,1 )
)
Respondent. )
________________________________ )

THIS MATTER comes before the Court on the Motion for Summary
Judgment filed by the Respondent on November 28, 2022. [Doc. 9].
I. PROCEDURAL BACKGROUND

Brandon Pickens (the “Petitioner”) is a prisoner of the State of North
Carolina. The Petitioner initiated this 28 U.S.C. § 2254 habeas proceeding
seeking relief from a prison disciplinary conviction he received at Avery-
Mitchell Correctional Institution on September 29, 2020 for willfully creating

1 Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District
Courts requires that “the petition must name as respondent the state officer who has
custody” of the petitioner. Rule 2(a), 28 U.S.C. foll. § 2254. North Carolina law mandates
that the Secretary of the North Carolina Department of Adult Correction is the custodian
of all state inmates. See N.C. Gen. Stat. § 148-4 (2023). Accordingly, Todd Ishee, the
current Secretary of the North Carolina Department of Adult Correction, is the proper
respondent in this action.
a hazardous or physically offensive condition, classified as a C13 disciplinary
offense. [Docs. 1, 10-4 at 6-7]. The Petitioner received 10 days loss of

earned-time credits and 30 hours of extra duty. [Id.]. The Petitioner moves
this Court to dismiss the disciplinary conviction. [Doc. 1 at 15].
The Court entered an Order on January 4, 2023 directing the

Respondent to respond to the § 2254 petition. [Doc. 3]. The Respondent
filed its Motion for Summary Judgment on May 4, 2023, moving this Court to
grant summary judgment and deny the § 2254 petition on the merits as there
are no genuine issues of material fact as to any of the Petitioner’s claims, or

in the alternative, to dismiss the petition for failure to exhaust state remedies.
[Doc. 9]. In support, the Respondent submitted a brief along with exhibits
from the Petitioner’s disciplinary record and relevant policies governing the

prison disciplinary process. [Doc. 10]. The Petitioner filed his Response to
the summary judgment motion on May 16, 2023, along with a sworn
Declaration and an exhibit showing a prison grievance he filed pertaining to
the disciplinary proceeding. [Doc. 11]. The Respondent’s Motion for

Summary Judgment is now ripe for review.
II. STANDARD OF REVIEW

Summary judgment shall be granted “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual dispute is
genuine “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A fact is material only if it might affect the outcome of the suit under
governing law. Id.

The movant has the “initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any,’ which it believes demonstrate the absence of a genuine

issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)(citing Fed. R. Civ. P. 56). The burden then shifts to the nonmoving
party to proffer competent evidence and specific facts showing that there is

a genuine issue for trial. Id. at 323-324. The nonmoving party must oppose
a summary judgment motion by going beyond the pleadings and by their own
affidavits, or by the “depositions, answers to interrogatories, and admissions
on file,” designate “specific facts showing that there is a genuine issue for

trial.” Id. (citing Fed. R. Civ. P. 56). The nonmoving party “may not rest upon
the mere allegations or denials of his pleading” to defeat a motion for
summary judgment. Id. at 322, n.3.
Any permissible inferences to be drawn from the underlying facts must
be viewed in the light most favorable to the party opposing the summary

judgment motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587–88 (1986). Where, however, the record taken as
a whole could not lead a rational trier of fact to find for the non-moving party,

disposition by summary judgment is appropriate. Id. at 599. A court is bound
to enter summary judgment “against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at trial.” Celotex

Corp. v. Catrett, 477 U.S. at 322.
In reviewing the Respondent’s Motion for Summary Judgment, the
Court must also consider the requirements governing petitions for habeas

corpus as set forth in the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C. § 2254(d). The AEDPA applies to “a person in custody
under a state-court judgment who seeks a determination that the custody
violates the Constitution, laws, or treaties of the United States.” Rule

1(a)(1), 28 U.S.C. foll. § 2254. “Federal courts may not issue writs of habeas
corpus to state prisoners whose confinement does not violate federal law.”
Wilson v. Corcoran, 562 U.S. 1 (2011). Under the AEDPA, a state prisoner's

claims are limited to allegations that challenge either the fact or duration of
their confinement. Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). A
prisoner may challenge a disciplinary conviction under § 2254 to the extent

that it increased the duration of the prisoner’s custody, including loss of gain
time credits. Wilkinson v. Dotson, 544 U.S. 74, 79 (2005)(“Because an
action for restoration of earned-time credits in effect demands immediate

release or a shorter period of detention, it attacks ‘the very duration of ...
physical confinement,’ ... and thus lies at ‘the core of habeas corpus[.]’
”)(quoting Preiser v. Rodriguez, 411 U.S 475, 487-488 (1973)).
III. FACTUAL BACKGROUND

Officer Bullis reported that on September 12, 2020 at approximately
2:00 p.m. he was in the Restrictive Housing Control room where he was
assigned, when he observed on camera the Petitioner “defecate in the floor

of his cell and smear the feces on his body.” [Doc. 10-4 at 12]. Officer Bullis
notified the Restrictive Housing Floor Officers and the Sergeant on duty.
[Id.].
Officer McClellan was assigned to investigate the incident and

completed a written report of his findings. [Doc. 10-4 at 11]. He stated that
he verified Officer Bullis’ statement.2 [Id.]. He also reported that the

2 While Officer McClellan’s Investigating Officer’s Report includes the notion of “Camera
Cell SCC-103,” it is unclear as to whether Officer McClellan viewed any camera footage.
[Doc. 10-4 at 11].
Petitioner was read his rights in the offender disciplinary process but refused
to sign the DC-138A Notice to Offender form, which was witnessed by

Restrictive Housing Unit Officers Carpenter and Hollifield and noted by their
signatures and the words “refused to sign,” dated September 13, 2020. [Doc.
10-4 at 11, 13]. These rights include the right to 24-hour advance written

notice of the charges prior to the disciplinary hearing, the right to be informed
of the alleged misconduct and to make statements to the investigating officer,
the right to request witness statements and evidence be gathered on the
prisoner’s behalf, the right to be present at the hearing, the right to have staff

assistance present at the hearing, the right to have evidence read during the
hearing and right to refute that evidence, and the right to an administrative
appeal to the Prison Director. [Id.].

Officer McClellan noted that the Petitioner refused to provide a written
statement by completing the DC-138 Statement by Witness form, and that
the refusal was also witnessed by Officers Carpenter and Hollifield and noted
by their signatures and the words “[r]efused to fill out or write statement,”

dated September 13, 2020. [Id. at 11, 14]. The DC-138B Statement by
Witness Form includes space for an accused offender to request written
statements be gathered on their behalf, to request live witnesses be present

at the hearing, to request physical evidence be reviewed at the hearing, and
to request staff assistance at the hearing. [Doc. 10-4 at 14].
Following his investigation, Officer McClellan completed his written

Investigating Officer’s Report on September 13, 2020 recommending that
the Petitioner be charged with a C13 disciplinary offense for willfully creating
a hazardous or physically/verbally offensive condition or situation or

disruption. [Doc. 10-4 at 11]. The Offense and Disciplinary Report was
prepared on September 14, 2020 by Officer Frye, who noted in the report
that the C13 charge was explained to the Petitioner and that the Petitioner
“refused to sign full understanding and acknowledged receipt of this notice.”

[Doc. 10-4 at 9]. The Report contains a signature from Officer Frye and
handwritten notation stating the Petitioner “refused to sign 9/14/20.” [Id.].
A disciplinary hearing took place on September 29, 2020 at Avery-

Mitchell Correctional Institution before hearing officer Randy Mull. [Doc. 10-
4 at 8]. The hearing officer explained the waiver and appeal options to the
Petitioner and the Petitioner entered a plea of not guilty. [Id.]. All statements
and the Investigating Officer’s Report were read during the hearing. [Id.].

The hearing officer noted in the written Record of Hearing that the Petitioner
refused to sign or complete the DC-138A and DC-138B forms during the
investigation and that this “was witnessed by two staff per policy.” [Id.]. The

hearing officer also noted that the Petitioner did not request written
statements, live witnesses, physical evidence, or staff assistance at the
hearing and that the Petitioner refused to make a written statement. [Id.].

The Petitioner did make a verbal statement during the hearing that “he did
do this but he had let staff know prior and he did not refuse to make a written
statement.” [Id.].

The hearing officer found the Petitioner guilty of the C13 offense
“[b]ased on the reporting party’s statement and the investigating officer’s
report” and imposed the loss of 10 days credit and 30 hours of extra duty.
[Doc. 10-4 at 6, 8]. The hearing officer explained to the Petitioner his right

to appeal and provided him with a copy of an appeal form. [Doc. 10-4 at 8].
The Petitioner signed acknowledgement of the written Record of Hearing.
[Doc. 10-4 at 8].

The Petitioner filed an administrative appeal of the disciplinary
conviction on September 29, 2020. [Doc. 10-4 at 3-5]. The Petitioner argued
in his appeal that he did not willfully create a hazardous condition because
he notified staff an hour and a half before defecating on the floor that he

needed to use the restroom and that they failed to respond in time and failed
to make rounds to check on him every thirty minutes. [Id.]. The Petitioner
stated that he was in segregation for self-injurious behavior (suicide watch)

where his toilet was secured with a lid with a brass master lock on it. [Id.].
The Petitioner stated that he had no access to running water or a toilet
because staff thought he would commit suicide by means of drowning

himself. [Id.]. The Petitioner also argued that he was never provided with
DC-138A and DC-138B forms on September 13, 2020, the date that Officers
Carpenter and Holifield signed the forms, nor was he provided with written

notice of the charges on September 14, 2020 by Officer Frye. [Id.]. The
appeal was reviewed on November 2, 2020 and the disciplinary sanctions
were upheld. [Id. at 2].
IV. DISCUSSION

A. Failure to Exhaust State Remedies

The Respondent alleges that the Petitioner cannot show that he
exhausted his state remedies as he failed to file a lawsuit in state court
challenging his disciplinary conviction. [Doc. 10 at 18-22]. As such, the
Respondent moves for summary judgment on grounds that the § 2254
petition is subject to dismissal for failure to exhaust state remedies. [Id.].
“[W]hen a state prisoner challenges the length or duration of his

confinement by alleging that certain good time credits were cancelled . . .
pursuant to an unconstitutional process, and then seeks the restoration of
those credits, he must first exhaust his state remedies.” See Farrell v.

Whitener, No. 3:13-cv-00530-FDW, 2015 WL 1457434, at *3 (W.D.N.C. Mar.
30, 2015)(citing Todd v. Baskerville, 712 F.2d 70, 72 (4th Cir. 1983)). The
exhaustion requirement reflects “an accommodation of our federal system

designed to give the State an initial opportunity to pass upon and correct
alleged violations of its prisoners’ federal rights.” Picard v. Connor, 404 U.S.
270, 275 (1971)(internal citation and quotation marks omitted). In order “[t]o

provide the State with the necessary opportunity, the prisoner must fairly
present his claim in each appropriate state court (including a state supreme
court with powers of discretionary review), thereby alerting that court to the
federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004)

(internal citation and quotation marks omitted).
The Petitioner admits to filing an administrative appeal seeking review
of his disciplinary conviction, but he has provided no evidence showing that

that he sought judicial review of his claims in state court. [Docs. 1, 11].
However, a prisoner is required to exhaust his state remedies, not only his
state administrative remedies. Farrell, 2015 WL 1457434, at *3 (W.D.N.C.
Mar. 30, 2015); Todd, 712 F.2d at 72. “North Carolina permits a state

prisoner to challenge the calculation of credits against a prison sentence by
filing a Motion for Appropriate Relief, N.C. Gen. Stat. § 15A-1411 et seq., in
the superior court where the conviction arose and by appealing any adverse

ruling thereon in the state appellate courts.” Hatcher v. Keller, No.
1:10CV30, 2010 WL 1568458, at *2 (M.D.N.C. Apr. 16, 2010) (citing State v.
Bowden, 193 N.C. App. 597, 597-600, 668 S.E.2d 107, 108-09 (2008)); see

also Satori v. N.C. Att’y Gen., No. 1:11-cv-00024-RJC, 2011 WL 1542134,
at *2 (W.D.N.C. Apr. 22, 2011); Tompkins v. Thomas, No. 5:10-HC-2004-
BO, 2010 WL 4735910, at *2 (E.D.N.C. Nov. 15, 2020). Alternatively, “North

Carolina allows prisoners to bring civil suits in equity in State court to
challenge the denial of their good-time credits.” Satori, 2011 WL 1542134,
at *2 (citing Smith v. Beck, 176 N.C. App. 757, 627 S.E.2d 284 (2006);
Teasley v. Beck, 155 N.C. App. 282, 574 S.E.2d 137 (2002)). The

uncontroverted forecast of evidence shows that the Petitioner failed to
pursue judicial review of his claims in state court. As such, the Respondent’s
Motion for Summary Judgment shall be granted due to the Petitioner’s failure

to exhaust state remedies and the petition shall be dismissed.
B. Denial on the Merits

Because a dismissal for failure to exhaust state remedies is without
prejudice, the Court also addresses the Respondent’s Motion for Summary
Judgment on grounds that the Petitioner’s claims are without merit. The
Petitioner raises four claims of relief in his § 2254 petition: 1) loss of sentence
reduction credits due to disciplinary incident that involved entrapment; 2)

insufficient evidence to support disciplinary conviction; 3) deprivation of
rights under the Eighth Amendment in connection with disciplinary
proceeding; and 4) deprivation of procedural due process rights in

connection with disciplinary proceeding. [Doc. 1 at 5-10].
1. Entrapment

Entrapment is an affirmative defense that may be raised by a criminal
defendant to show government inducement of the crime and that the
defendant did not have a predisposition to engage in the criminal conduct.
Mathews v. United States, 485 U.S. 58, 62-63 (1988). It requires that a
criminal defendant show “governmental overreaching and conduct

sufficiently excessive to implant a criminal design in the mind of an otherwise
innocent party.” United States v. Daniel, 3 F.3d 775, 778 (4th Cir. 1993).
The Petitioner alleges that he lost a total of 10 reduction credits along

with the ability to earn additional sentence reduction credits “as a result of a
disciplinary action for an incident that involved entrapment.” [Doc. 1 at 5]. In
his response to the Respondent’s summary judgment motion, the Petitioner
alleges that prison staff subjected him to entrapment by placing him in a cell

without access to a toilet and refusing to let him use the restroom when he
informed staff that he needed to do so, thereby inducing him to defecate on
the floor of his cell. [Doc. 11 at 3-4].
The Petitioner’s allegations of entrapment, however, are insufficient to
entitle him to any claim of habeas relief under 28 U.S.C. § 2254. The

Petitioner’s claim of entrapment is also not a valid constitutional claim that
can be raised on habeas review, as a claim brought pursuant to 28 U.S.C.
§ 2254 must be based on a violation of federal constitutional law. See

Ainsworth v. Reed, 542 F.2d 243, 244 (5th Cir. 1976)(“[e]ntrapment is not a
constitutional doctrine”); Sosa v. Jones, 389 F.3d 644, 646-649 (6th Cir.
2004)(holding that entrapment was not a constitutional defense and could
not form basis for habeas relief under 28 U.S.C. § 2254). See also Ashe v.

United States, 2015 WL 5430847, *11 (W.D.N.C. Sept. 15,
2015)(unpublished)(“[a] claim of entrapment is not cognizable in a § 2255
motion because it ‘presents no constitutional claim.’”)(quoting Grayson v.

United States, 1997 WL 695566, *3 (S.D.N.Y. Nov. 6, 1997)). As such, the
Petitioner’s claim is without merit and cannot withstand summary judgment.
2. Evidence Supporting Disciplinary Conviction

The requirements of due process are satisfied if “there is any evidence
in the record that could support the conclusion reached by the disciplinary
board.” Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445,
455–56 (1985). This requires no more than “a modicum of evidence.” Id. at

455. “Ascertaining whether this standard is satisfied does not require
examination of the entire record, independent assessment of the credibility
of witnesses, or weighing of the evidence.” Id. Federal courts do not review

the correctness of a disciplinary hearing officer's findings of fact. Kelly v.
Cooper, 502 F.Supp. 1371, 1376 (E.D.Va. December 29, 1980).
The Petitioner alleges that there was insufficient evidence to prove all

elements of the C13 disciplinary offense. [Doc. 1 at 7]. The Petitioner argues
in his response to the summary judgment motion that he could not have
willfully created a hazardous condition due to the fact that he was in a cell
without access to a toilet and staff failed to provide him with the opportunity

to use the restroom after he notified them of his need to do so. [Doc. 11 at
5]. In his Declaration, the Petitioner denies smearing feces on his body and
claims that Officer Bullis’ reporting party statement contained false

allegations. [Doc. 11-1 at 2-3].
The undisputed forecast of evidence shows that the hearing officer
read all witness statements and the Investigating Officer’s report at the
disciplinary hearing and also heard the Petitioner’s verbal statement that “he

did do this but he had let staff know prior.” [Id.]. Although the Petitioner now
denies smearing feces on his body in his Declaration, he did not raise this in
his verbal statement made at the disciplinary hearing or in his administrative

appeal. [Doc. 10-4 at 3-5, 8]. Therefore, Plaintiff’s admission at the hearing
could reasonably support the finding that he admitted to smearing the feces
on his body. Other than his new self-serving statements contained in his

Declaration, the Petitioner offers no other facts or summary judgment
evidence in support of his assertion that Officer Bullis’ reporting statement
contained false allegations. This is insufficient to demonstrate the existence

of any genuine issue of material fact in dispute and contrary to the objective
evidence contained in the disciplinary records submitted by the Respondent.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)(to avoid
summary judgment, the non-moving party must offer “concrete evidence

from which a reasonable juror could return a verdict in his favor”); Scott v.
Harris, 550 U.S. 372, 380 (2007)(“[w]hen opposing parties tell two different
stories, one of which is blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not adopt that version of the
facts for purposes of ruling on a motion for summary judgment”); Larkin v.
Perkins, 22 Fed. App’x 114, 115 (4th Cir. 2001)(holding that plaintiff’s “own,
self-serving affidavit containing conclusory assertions and unsubstantiated

speculation” was insufficient to withstand summary judgment).
The undisputed forecast of evidence shows that the hearing officer
found the Petitioner guilty of the C13 offense based on the Investigating

Officer’s Report and Officer Bullis’ reporting statement that he observed the
Petitioner defecate in the floor of his cell and smear feces on his body, and
Plaintiff’s admission at the hearing that “he did do this.” [Doc. 10-4 at 8]. The

decision reached by the hearing officer is therefore supported by “some
evidence” in the record as required under Hill and this Court is not permitted
to re-weigh the hearing officer’s factual findings. As such, the Petitioner’s

claim is without merit and cannot withstand summary judgment.
3. Eighth Amendment Deprivation of Rights

The Eighth Amendment prohibits the infliction of “cruel and unusual
punishments,” and protects prisoners from the “unnecessary and wanton
infliction of pain.” Whitley v. Albers, 475 U.S. 312, 318-319 (1986); U.S.
CONST. Amend. VIII. It thus protects prisoners from inhumane methods of
punishment and from inhumane conditions of confinement. Williams v.

Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). “Prison conditions may be harsh
and uncomfortable without violating the Eighth Amendment prohibition
against cruel and unusual punishment.” Dixon v. Godinez, 114 F.3d 640,
642 (7th Cir. 1997).

The Petitioner alleges that the “incident surrounding the disciplinary
action was induced by a deprivation of [his] rights under the Eighth
Amendment...” [Doc. 1 at 8]. However, the Petitioner does not elaborate

further as to how he was deprived of his rights under the Eighth Amendment.
[Id.]. In his response to the summary judgment motion, the Petitioner states
that he was placed in a cell without toilet access while on self-injurious

behavior precautionary status and that staff failed to periodically check on
him every thirty minutes and failed to provide the Petitioner with an
opportunity to use the restroom after he made them aware that he needed

to do so. [Doc. 11 at 2, 4]. The Petitioner argues that “[a] failure to
reasonably respond to conditions in which prisoners are entitled to amounts
to deliberate indifference.” [Id. at 6].
To the extent that the Petitioner is alleging that prison staff violated his

Eighth Amendment rights by placing him in a cell without toilet access, it is
insufficient to entitle him to habeas relief under 28 U.S.C. § 2254. A claim
challenging conditions of confinement is not cognizable in a § 2254

proceeding and is more appropriately filed in a civil rights action seeking
relief pursuant to 42 U.S.C. § 1983. See Badea v. Cox, 931 F.2d 573, 574
(9th Cir. 1991)(“[h]abeas corpus proceedings are the proper mechanism for
a prisoner to challenge the ‘legality or duration’ of confinement ... A civil rights

action, in contrast, is the proper method for challenging
‘conditions of confinement’ ”); Preiser v. Rodriguez, 411 U.S. 475, 499
(1973)(noting that constitutional challenges to conditions of confinement are
properly brought in a civil rights complaint). As such, the Petitioner’s claim
is without merit and cannot withstand summary judgment.

4. Due Process

The Fourteenth Amendment's Due Process Clause provides that no
person shall be deprived of “life, liberty, or property, without due process of
law.” U.S. Const. Amend XIV. Although prisoners retain rights under the
Due Process Clause, “[p]rison disciplinary proceedings are not part of a
criminal prosecution, and the full panoply of rights due a defendant in such
proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

However, prisoners are entitled to certain due process protections, which
include: (1) no less than 24 hours advance written notice of the disciplinary
charges; (2) a written statement by the fact finder regarding the evidence

relied upon and the reasons for any disciplinary action; and (3) a hearing
where the prisoner has the opportunity to call witnesses and present
documentary evidence. Id. at 546-566.
The Petitioner alleges in his § 2254 petition that staff did not allow him

to write a statement, request staff assistance and physical evidence, provide
him with advance written notice of the charges, or provide him with notice of
his offender rights. [Doc. 1 at 10]. However, preparation of a written

statement and notice of offender rights are not among the procedural due
process protections recognized in Wolff and these allegations cannot
support a habeas claim.

As to the Petitioner’s remaining allegations, the forecast of evidence
shows that Officer Frye noted in the Offense and Disciplinary Report that the
C13 charge was explained to the Petitioner and that the Petitioner “refused

to sign full understanding and acknowledged receipt of this notice.” [Doc.
10-4 at 9]. The Report contains a signature from Officer Frye and
handwritten notation stating the Petitioner “refused to sign 9/14/20.” [Id.].
This was well more than 24 hours advance written notice of the charge

before the disciplinary hearing was held on September 29, 2020.
The forecast of evidence also shows that the Petitioner voluntarily
declined to exercise his right to request the presence of staff assistance at

the hearing and that physical evidence be reviewed at the hearing. [Doc. 10-
4 at 8, 11,14]. The Petitioner refused to complete the DC-138 Statement by
Witness form, which included space for the Petitioner to request physical
evidence be reviewed at the hearing and staff assistance at the hearing.

[Doc. 10-4 at 14]. His refusal was witnessed by Officers Carpenter and
Hollifield and noted by their signatures and the words “[r]efused to fill out or
write statement” dated September 13, 2020. [Id. at 11, 14].

The Petitioner states in his Declaration that Officer Frye did not advise
him of the charge or provide him with a completed copy of the Offense and
Disciplinary Report and that Officer McClellan did not give him the

opportunity to request evidence. [Doc. 11-1 at 2]. However, these self-
serving statements, standing alone and without any supporting facts, are
insufficient to overcome the forecast of evidence presented in the disciplinary

records submitted by the Respondent. The Petitioner has not presented a
forecast of evidence from which a reasonable jury could conclude there
exists a genuine issue as to whether he received notice of the charge or was
denied the ability to present evidence as required under Wolff. In fact, the

undisputed record shows that Plaintiff was aware of the nature of the charge
and presented a defense – albeit including an admission to the offense
conduct. As such, the Petitioner’s claim is without merit and cannot

withstand summary judgment.
V. CONCLUSION

As set forth above, the § 2254 petition is subject to dismissal for failure
to exhaust state remedies. Additionally, even if the Petitioner’s claims were
not procedurally barred due to failure to exhaust state remedies, the claims
fail on the merits. Accordingly, the Respondent's Motion for Summary
Judgment shall be granted.
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases,
the Court declines to issue a certificate of appealability. See 28 U.S.C. §

2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 338 (2003)(noting that, in
order to satisfy § 2253(c), a petitioner must demonstrate that reasonable
jurists would find the district court's assessment of the constitutional claims

debatable or wrong); Slack v. McDaniel, 529 U.S. 474, 484 (2000)(holding
that, when relief is denied on procedural grounds, a petitioner must establish
both that the dispositive procedural ruling is debatable and that the petition
states a debatable claim of the denial of a constitutional right).

IT IS, THEREFORE, ORDERED that:
1) The Respondent’s Motion for Summary Judgment [Doc. 9] is
GRANTED;

2) The Petition for Writ of Habeas Corpus [Doc. 1] is DISMISSED
and DENIED;
3) The Clerk of Court is respectfully directed to substitute Todd
Ishee, Secretary of the North Carolina Department of Adult

Correction as the proper Respondent in this action;
4) The Court declines to issue a certificate of appealability pursuant
to Rule 11(a) of the Rules Governing Section 2254 Cases; and

5) The Clerk is directed to terminate this case.
IT IS SO ORDERED.

Signed: March 25, 2024

Seal ities ue
Chief United States District Judge "Alle

22

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10260866. Public record. Not legal advice.