The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KAI DI INGRAM, )
)
Petitioner, ) Civil Action No. 23-565
)
v. ) District Judge David S. Cercone
) Magistrate Judge Maureen P. Kelly
PBPP; and MICHAEL ZAKEN, )
) Re: ECF No. 19
Respondents. )
MEMORANDUM and ORDER
Petitioner Kai Di Ingram (“Petitioner”) is a state prisoner currently incarcerated at the
State Correctional Institution at Greene (“SCI-Greene”) in Waynesburg, Pennsylvania.
Petitioner initiated the present federal habeas proceeding by submitting a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. 2254 (the “Petition”) on April 5, 2023. ECF No. 1. The
Petition formally was field on April 20, 2023, after Petitioner paid the filing fee. ECF Nos. 3 and
6. Respondents Answered the Petition on May 30, 2023. ECF No. 10. Petitioner filed a
Traverse on July 12, 2023. ECF No. 16.
On September 19, 2023, United States Magistrate Judge Maureen Kelly issued a Report
and Recommendation recommending that the Petition be denied, and that a certificate of
appealability be denied as well. ECF No. 19 at 1. In addition to the above filings, the Report
and Recommendation explicitly considered arguments and exhibits submitted on
August 22, 2023, in Petitioner’s Motion for Bail and supporting brief, ECF Nos. 17 and 18.
Petitioner timely filed Objections on November 1, 2023. ECF No. 23. The Objections
are lengthy, and largely rehash Petitioner’s prior filings in this matter, which were addressed by
the Magistrate Judge in the Report and Recommendation. However, out of an abundance of
caution, the undersigned will respond to some of the arguments asserted in the Objections.
First, Petitioner appears to argue that any default of claims regarding his arrest and
preliminary hearing for his parole violation in February and March of 2021, should be set aside
because he was deprived of the legal documents necessary to appeal from the same. ECF No. 23
at 4-5. This would relate to Grounds One and Two in the Petition. ECF No. 6 at 1 and 2.
Presuming, without deciding, that any default of these grounds should be set aside for the
reasons set forth by Petitioner in his Objections, they still fail on the merits. Indeed, as the
Magistrate Judge explicitly recognized in the Report and Recommendation, see ECF No. 19 at 2
n.1, the Court of Appeals already addressed the constitutionality of Petitioner’s arrest and
preliminary hearing in Ingram v. SCI Smithfield, and determined that the Fourth and Fourteenth
Amendments had been satisfied. No. 22-1541, 2023 WL 110588, at *1-2 (3d Cir. Jan. 5, 2023).
This Court concurs with the analysis of the Magistrate Judge for the reasons stated by the Court
of Appeals in that case. Regardless of whether they are procedurally defaulted, Grounds One
and Two of the Petition fail on the merits.
Second, Petitioner claims that the Magistrate Judge asserted that Petitioner should have
waived his right to counsel in order to administratively appeal the recission of his automatic re-
parole date. ECF No. 23 at 36. This is a mischaracterization of the Report and
Recommendation. Instead, in determining that Petitioner had not established cause to set aside
his default of that claim, the Magistrate Judge wrote the following:
Here, Petitioner does not provide an adequate basis to excuse his
procedural default. First, Petitioner has not demonstrated cause.
Petitioner alleges that the Notice of May 12, 2021 was delivered to
him without the appeal form and contact information for the
various chief public defenders in Pennsylvania. However, this
Notice – which there is no dispute that Petitioner actually received
– informed Petitioner of the reasons that his reparole was
rescinded; the relevant statute governing administrative appeals
(37 Pa. Code § 73); the deadline for filing an appeal with the Board
(30 days from the date on which the Notice was mailed); the
substantive requirements for an appeal; Petitioner’s right to an
attorney; and that he may be entitled to representation by the
public defender at no cost. ECF No. 10-1 at 92-23; ECF No. 6 at
3. There is no indication that he was precluded from filing an
appeal on a blank sheet of paper, or from seeking out
representation on his own.
Further, to the extent that Petitioner wanted a new copy of the
official form on which to draft an appeal, or needed the contact
information for the relevant public defender, there is no indication
on the record that he ever sought these out from prison staff, of
from any other source. While the record indicates that Petitioner
sought his own legal property from prison staff, ECF No. 16-1 at
51-57 and ECF No. 18-1 at 1-2 (responses and grievances relating
to Petitioner’s legal materials – including those related to his
parole – from Petitioner’s personal property dated May 4, 2021
(prior to the Board’s Notice), May 21, 2021, and June 10, 2021),
there is no indication on the record that he ever requested these
forms from the prison law library, or from other prison staff, or
from the Board.
Moreover, during the period of time that Petitioner could have
requested these forms, or prepared an appeal on a blank sheet of
paper, or attempted to contact the relevant public defender’s office,
Petitioner submitted at least four letters, three motions, and set of
service papers to this Court in Civil Action No. 21-359. ECF Nos.
8-19, SCI Smithfield, No. 21-359. It also appears that Petitioner
had outside help with his legal filings from his sister during this
period of time. ECF No. 15 at 2, SCI Smithfield (indicating that
Petitioner was in contact with his sister, who was assisting
Petitioner with his legal filings). Thus, Petitioner has not shown
that an “objective factor external to the defense” precluded him
from filing an administrative appeal with the Board.
ECF No. 19 at 11-12.
This analysis, taken ahs a whole, is persuasive. Petitioner has not established cause to set
aside his procedural default.
Third, Petitioner posits that another judge has found that Petitioner had stated a valid
retaliation claim against Lt. Lynch in another case. ECF No. 23 at 47-48. This presumably
refers to the Report and Recommendation at ECF No. 34 of Ingram v. Davis, No. 22-42 (W.D.
Pa. currently pending), in which United States Magistrate Judge Dodge recommended not
dismissing a First Amendment retaliation claim against Lt. Lynch for allegedly stealing a box of
legal materials related to Ingram v. SCI Smithfield et al., No. 21-cv-359. Id. at 15-16.
But this was not a finding that Petitioner had stated a claim against Lt. Lynch for the
misconduct of April 16, 2021, which ultimately resulted in the loss of Petitioner’s automatic
reparole date. Instead, Judge Dodge found that any retaliation claims related to the misconduct
charge and subsequent hearing were barred by the Supreme Court’s holding in Heck v.
Humphrey, 512 U.S. 477 (1994). Ingram v. Davis, No. 22-42 (W.D. Pa. currently pending), ECF
No. 34 at 11-15.
In any event, Petitioner’s claims with respect to the recission of his automatic reparole
date are procedurally defaulted for the reasons stated in the present Report and Recommendation.
ECF No. 19 at 8-13.
Finally, with respect to the Board’s continued decisions to deny parole, the Board
allegedly asked Petitioner about the status of his actions pending in the Courts during an
interview on July 24, 2023. ECF No. 23 at 23-24. But as Petitioner acknowledges in his
Objections, this was not a basis asserted for denial of parole by the Board on July 26, 2023. Id.
at 23-24. See also ECF No. 19 at 7 (citing ECF No. 18 at 12-13, in which Petitioner also stated
that “Reports, evaluations and assessment / level of risk to the community” was an additional
basis for denial asserted by the Board but not recited in Petitioner’s Objections.).
Here, this Court agrees that Petitioner has not met his burden to show that the Board’s
decision to deny parole on July 24, 2023 shocked the conscience, or lacked “some basis for the
challenged decision.” Hunterson v. DiSabato, 308 F.3d 236, 246 (3d Cir. 2002).
Accordingly, after de novo review of the pleadings and documents in the case, together
with the Petition, ECF No, 6, the Report and Recommendation, ECF No. 19, and Petitioner’s
Objections thereto, ECF No. 23, the following order is entered:
AND NOW, this 7th day of February, 2024,
IT IS ORDERED that [23] Petitioner’s Objections are OVERRULED;
IT FURTHER IS ORDERED that [6] the Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. 2254 is DENIED. The concomitant request for a certificate of appealability is
DENIED; and
The Magistrate Judge’s Report and Recommendation, ECF No. 19, as supplemented by
this Memorandum and Order, is adopted as the opinion of this Court.
s/David Stewart Cercone
David Stewart Cercone
Senior United States District Judge
cc: The Hon. Maureen P. Kelly
United States Magistrate Judge
All counsel of record
(Via CM/ECF Electronic Mail)
Kai Di Ingram
HC 8003
SCI Greene
169 Progress Drive
Waynesburg, PA 15370
(Via United States Postal Service mail)