Delly v. White

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TERENCE DELLY, No. 4:19-CV-01580

Petitioner, (Judge Brann)

v.

WARDEN DOUGLAS K. WHITE,

Respondent.

MEMORANDUM OPINION

DECEMBER 17, 2019

Presently before the Court is Petitioner Terence Delly’s petition for writ of

habeas corpus brought pursuant to 28 U.S.C. § 2241, challenging an institutional

disciplinary decision that resulted in, inter alia, a loss of good time credits.1

Respondent submitted an Answer,2 and Petitioner has now filed a reply.3 For the

reasons that follow, the Petition will be denied.

I. BACKGROUND

Petitioner is presently incarcerated at the Low Security Correctional

Institution (“LSCI”) at Allenwood in Allenwood, Pennsylvania, and has a projected

release date of May 6, 2021. ECF No. 7-1 at 6.

1 ECF No. 1.

2 ECF No. 7.

On August 8, 2018, while Petitioner was incarcerated at the Federal

Correctional Institution at Schuylkill, Satellite Camp Prison, in Minersville,

Pennsylvania, Incident Report No. 3155698 was issued charging him with a

violation of Bureau of Prisons (“BOP”) Codes 200, escape from a non-secure

facility, and 299, disruptive conduct. The incident report written by Special

Investigative Services Technician Ryan Price provides as follows:

On August 7, 2018, at approximately 1:17 PM, I was conducting an

interview in reference to case number SCH-18-0165, during my

interview with inmate Delly, Terence, Reg. No. 54220-037, he admitted

to leaving the Satellite Camp Prison and had direct knowledge of trails

leading to state route 901. Specifically, Delly stated: “I haven’t left

recently but when I did I always came back. I left to bring food back.”

Attached to this incident report are photographs of him leaving the

institution grounds as visually captured on trail camera FPS number

0213102248. The trail camera was hidden on institution grounds, and

was positioned in a manner to visually document inmates exiting

institution grounds at the property line. Specifically, Delly was visually

depicted on the trail camera walking off institution grounds on June 27,

2018 at 12:59PM. The visual depiction of Delly captured on the trail

camera photograph was of a high quality. I easily identified Delly as

the inmate who was photographed leaving the institution grounds.

Delly was positively identified escaping the open minimum security

institution at the satellite camp prison when he departed institution

grounds without staff’s permission.4

On August 28, 2018, at approximately 4:40 p.m., the reissued incident report

was delivered to Petitioner.5 Petitioner was advised of his right to remain silent

during the disciplinary process.6 He was shown a photograph of him taken by the

4 ECF No. 7-1 at 11.

5 Id.

6 Id.

camera and stated that it was not him. He declined to make any further statement.

He also declined to request any witnesses.7 Per the incident report, the investigating

staff member referred the incident report to the Unit Discipline Committee (“UDC”)

for a hearing.8

On August 29, 2018, the initial hearing was held before the UDC.9 At the

hearing, Petitioner stated that he understood his rights and that the “report is

completely false.”10 The UDC referred the case to the Discipline Hearing Officer

(“DHO”) and recommended appropriate sanctions.11 Petitioner was advised that day

of his rights before the DHO.12 Petitioner did not request a staff representative or

witnesses in the proceedings before the DHO.13

On August 30, 2018, the DHO convened the hearing.14 At the hearing,

Petitioner did not request a staff representative or witnesses and stated that he

understood his rights and was ready to proceed. Id. Petitioner testified that Section

11, the description of the offense, was inaccurate, and that he “didn’t do it.” In

addition, Petitioner submitted a written statement to supplement his verbal

testimony, which provides:

7 Id.

8 Id.

9 Id.

10 Id.

11 Id.

12 See id. at 7.

13 See id. at 9.

14 See ECF No. 7-1 at 15.

The shot is false. A. Shot says, staff became aware of the incident on

08/08/18. Why was I taken from the camp to the SHU 07/16/18 around

11:45 PM. B. Shot says, the picture of me is of high quality. It’s not

of high quality, I’ve never [met] SIS Price before so how could he

positively identify me. Also for him to give a exact date and time why

aren’t the pictures time and date stamped? C. Shot says, I left the June

27, 2018 at 12:59 PM in the afternoon. The picture is of a person at

night clearly. Why would I have a flashlight in the afternoon and a

skullcap on in the summer. That’s obviously a photo he just put

together foot. D. Shot says, I had knowledge of the trails leading to

901. Knowledge of something and actually committing [an] act are two

separate things. I’m charged with a escape. Policy in the law library

for an escape is to leave a secure facility and miss multiple counts.15

Other evidence presented at the hearing included the color photograph dated June

27, 2018 and time-stamped 12:59 a.m.; the Federal Bureau of Prisons inmate

photograph of Petitioner; satellite map of FCI Schuylkill institutional grounds on

which the location of the trail camera was marked to depict the location as off

institutional grounds; and investigative report, which includes the statement by

Petitioner that he had previously left grounds before but always returned.16

Based on all the evidence, the DHO determined that Petitioner committed the

prohibited act of escape from a non-secure facility in violation of Code 200.17 The

DHO relied upon the incident report, the BOP’s inmate photo of Petitioner, a

comparison of that photo to the trail camera photo, and the satellite map of the FCI

Schuylkill grounds.18 The DHO also noted that he considered Petitioner’s

15 Id.

16 Id. at 16.

17 Id.

18 See ECF No. 7-1 at 17 (DHO report).

statements that he did not escape from the satellite camp but gave greater weight to

the reporting officer’s written statement including the information contained in

Section 11 of the incident report.19 In addition, the DHO noted that staff became

aware of the alleged misconduct on August 7, 2019, and the original incident report

was written on August 8, 2019, but was rewritten on August 28, 2019 in order to

provide Petitioner with proper notice of the alleged misconduct.20 Finally, the DHO

noted that the trail camera photo is timestamped as 12:59 a.m. and not 12:59 p.m. as

noted in the incident report.21 The DHO concluded that the incident occurred at

12:59 a.m. based on the timestamp as well as the depiction in the photo of Petitioner

holding a flashlight.22

The DHO sanctioned Petitioner with a loss of twenty-seven (27) days of good

conduct time, 30 days of disciplinary segregation, which was suspended pending

180 days of clear conduct, a $300 monetary fine, as well as a loss of certain

privileges for 4 months.23 The DHO found that these sanctions were warranted

because “[e]scaping from a non-secure facility jeopardizes the security and good

order of the institution.”24 In addition, the DHO explained that the sanctions were

imposed to deter future misconduct and demonstrate that engaging in misconduct

19 Id. at 17.

20 Id. at 16, 17.

21 Id. at 17.

22 Id.

23 Id. at 18.

24 Id.

will prolong the Petitioner’s period of incarceration.25 The DHO then advised

Petitioner of his right to appeal.26

After appealing the DHO’s decision through the administrative remedy

process, Petitioner filed the instant habeas petition and supporting brief.27 In it,

Petitioner argues that (1) the DHO was not impartial, (2) there is no reference to the

relied upon satellite map in the incident report, (3) the incident report describes the

incident as occurring at 12:59 p.m. whereas the visual depiction in the trail camera

photo appears to have occurred in the evening when it is dark, (4) the incident report

was untimely, which prejudiced his defense, and (5) the use of a confidential

informant did not comport with due process.28 Petitioner requests that the DHO

decision be set aside and remanded with the instructions for the Bureau of Prisons

to expunge the incident report and to reinstate the twenty-seven (27) days of good

conduct time he was docked.29

II. DISCUSSION

A. Legal Standard

A habeas corpus petition is the proper mechanism for a federal prisoner to

challenge the “fact or duration” of his confinement, including challenges to prison

25 Id.

26 Id.

27 ECF Nos. 1, 2.

28 See ECF No. 2 at 8-12.

29 See id.

disciplinary proceedings, that affect the length of confinement, such as deprivation

of good time credits.30 A challenge to a disciplinary action resulting in the loss of

good conduct time is properly brought pursuant to § 2241, “as the action could affect

the duration of the petitioner’s sentence.”31

B. Analysis

Petitioner is challenging the result of a prison disciplinary hearing where he

was found guilty of violating Code 200, for escaping a non-secure facility. For this

violation, Petitioner was sanctioned with the loss of twenty-seven (27) days of good

conduct time by the DHO.

Prisoners are guaranteed certain due process protections when a prison

disciplinary proceeding may result in the loss of good time credits.32 The due

process protections afforded an inmate must include (1) a written notice of the

charges at least twenty-four hours prior to a hearing; (2) an opportunity to call

witnesses and present evidence in his defense; (3) an opportunity to receive

assistance from an inmate representative; (4) a written statement of the evidence

relied on and the reasons for the disciplinary action; and (5) an appearance before an

impartial decision making body.33 Additionally, the revocation of good time only

30 See Preiser v. Rodriguez, 411 U.S. 475, 498–99 (1973); Muhammad v. Close, 540 U.S. 749

(2004); Edwards v. Balisok, 520 U.S. 641 (1997); Wilkinson v. Dotson, 544 U.S. 74 (2005).

31 Queen v. Miner, 530 F.3d 253, 254 n.2 (3d Cir. 2008).

32 See Wolff v. McDonnell, 418 U.S. 539, 564-65 (1974).

33 See Crosby v. Piazza, 465 F. App’x 168, 171-72 (3d Cir. 2012) (citing Wolff, 418 U.S. at

563-71).

satisfies the minimum requirements of procedural due process when the findings of

the prison disciplinary board are supported by “some evidence” in the record.34 This

standard is minimal and does not require an examination of the entire record, an

independent assessment of the credibility of witnesses, or a weighing of the

evidence.35 The standard is simply whether “there is any evidence in the record that

could support the conclusion reached by the disciplinary board.”36

Petitioner was provided with all the due process safeguards identified in Wolff

v. McDonnell. Petitioner received written notice of the charges against him at least

twenty-four hours prior to the hearings; he had an opportunity to call witnesses and

present evidence in his defense, which he declined; he had an opportunity to receive

assistance from a representative, which he also declined; and he received a written

statement of the evidence relied on and the reasons for the disciplinary action.37 As

to Petitioner’s contention that the DHO was biased against him, the Court finds that,

to the contrary, there is no evidence to support a conclusion that the DHO was in

any way biased against him.38 As Petitioner correctly points out in his brief, in order

to ensure impartiality, the DHO may not be the victim, witness, investigator, or

otherwise significantly involved in the incident.39 Petitioner makes no allegation,

34 Lang v. Sauers, 529 F. App’x 121, 123 (3d Cir. 2013) (citing Superintendent v. Hill, 472 U.S.

445, 454 (1985)).

35 Id. (citing Thompson v. Owens, 889 F.2d 500, 502 (3d Cir. 1989)).

36 Id. (quoting Hill, 472 U.S. at 455-56).

37 See Wolff, 418 at 563-71.

38 EXPLAIN

39 See ECF No. 2 at 9 (citing 28 C.F.R. 541.8(b)).

however, that the DHO had any involvement in the incident. Rather, Petitioner

argues that the DHO “has considerable contact with individuals involved in the case”

as well as “direct involvement . . . of the events.” Although the DHO was naturally

involved in the disciplinary process, there is no evidence that the DHO had any

involvement in the incident or was a victim, witness, or investigator. Petitioner thus

appeared before an impartial decision-making body, satisfying the final due process

guarantee identified in Wolff.

Petitioner additionally argues that the incident report was untimely and was

reissued. Petitioner fails to demonstrate, however, how this alleged procedural

defect could constitute a due process violation by demonstrating prejudice. A

technical issue of non-compliance with BOP regulations does not violate due

process, and a procedural error at a disciplinary hearing is only actionable if the

petitioner suffers prejudice resulting from the error.40 Here, the Court finds no merit

to Petitioner’s technical defect argument because Petitioner has failed to demonstrate

or identify any prejudice resulting from the alleged defect. Petitioner alleges that he

was prejudiced in the delay of time between the incident and the issuance of the

incident report because, had the incident report been issued earlier, Petitioner could

have sought out witnesses to confirm his presence on the prison’s grounds at the

40 See Millhouse v. Bledsoe, 458 F. App’x 200, 203 (3d Cir. 2012); Obiegbu v. Werlinger, 488

F. App’x 585, 586 (3d Cir. 2012) (citing Wilson v. Ashcroft, 350 F.3d 377, 380–81 (3d Cir.

2003)).

time the trail photo was taken. Petitioner fails to explain, however, why he was

unable to seek out these witnesses after a short delay or how such witnesses would

overcome the weight of the evidence including both the trail camera photo and

Petitioner’s admission that he had left grounds previously. As such, the Court finds

that Petitioner has not demonstrated prejudice sufficient to transform technical

noncompliance into a constitutional violation.

Petitioner also asserts that the DHO was improperly relied on confidential

information. In point of fact, the DHO report indicates that no confidential

information was considered or relied upon by the DHO.41 As the Respondent points

out in the response, the language in Section E appears to be standard and does not

indicate that confidential information was relied upon in this case as there is a “N/A”

at the end of Section E.42 Had confidential information been used, the “N/A” would

not be there, and Petitioner provides no credible allegation or evidence that any such

confidential information was used. There is no merit to this argument.

To the extent that Petitioner argues that the decision of the DHO was not

supported by the record, the Court finds that there is some evidence in the record to

support the DHO’s decision. This Court’s role is limited to determining whether

“some evidence” exists in the record to support the DHO’s decision; the Court does

41 See ECF No. 7-1 at 16 (Section E).

42

not reassess the evidence, take new evidence, or evaluate witness credibility.43 In

this matter, the DHO relied on the incident report, which included Petitioner’s

admission that he had left grounds before, the BOP’s inmate photo of Petitioner, a

comparison of that photo to the trail camera photo, and the satellite map of the FCI

Schuylkill grounds. Because there is some evidence in the record to support a

violation of Code 200, Petitioner’s due process rights were not violated and he is not

entitled to habeas relief.

Finally, to the extent Petitioner also argues that the loss of twenty-seven (27)

days of good time credit violates the Eighth Amendment because it is grossly

disproportionate to the severity of the offense,44 the Court notes that it is within the

range of available sanctions for a violation of Code 200.45 As such, the Court finds

that the sanction imposed on Petitioner did not violate the Eighth Amendment.

43 See, e.g., McGee v. Scism, 463 F. App’x 61, 62 (3d Cir. 2012) (“The ‘some evidence’

standard does not require examination of the entire record, independent assessment of the

credibility of witnesses, or weighing of the evidence.”); Perez v. Rectenwald, No. 12-cv-

2114, 2013 WL 5551266, at *4 (M.D. Pa. Oct. 8, 2013) (“The Court’s responsibility under

Hill is not to weigh this evidence or assess its probative value, but merely to determine that at

least some evidence exists to support the conviction”).

44 See Rummel v. Estelle, 445 U.S. 263, 271-74 (1980).

45 See 28 C.F.R. § 541.3. See also Shelton v. Jordan, 613 F. App’x 134, 135 (3d Cir. 2015)

(“[g]iven the severity of [petitioner’s] offenses, and because the sanctions fall within the

applicable range permitted by the regulation, we conclude that the punishment here did not

violate the Eighth Amendment”).

III. CONCLUSION

For the reasons set forth above, the Petition will be denied. An appropriate

Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge