MIKLE v. HUTCHINSON

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ERIE DIVISION

)

PHILLIP MIKLE, Sr., 1:22-CV-283-RAL

Petitioner ) RICHARD A. LANZILLO

) Chief United States Magistrate Judge

)

v ) MEMORANDUM OPINION ON

PETITION FOR WRIT OF HABEAS

WARDEN HUTCHINSON )

° ) CORPUS

R t )

esponden ) ECFNo.4

)

I. Introduction

Pending before the Court is the petition for a writ of habeas corpus filed by Petitioner

Phillip Mikle, Sr. pursuant to 28 U.S.C. § 2241. ECF No. 4. For the reasons set forth below,

Mikle’s petition will be denied.

Il. Background

On March 5, 2014, the United States District Court for the District of Florida sentenced

Petitioner to a term of 240 months incarceration. ECF No. 10-1 at p. 3. On October 15, 2021,

while Petitioner was serving his sentence at the Federal Correctional Institution (FCI) at

McKean, the Bureau of Prisons (BOP) issued Incident Report No. 3557578, charging Petitioner

with engaging in or encouraging < group demonstration and refusing to obey an order in

violation of Codes 212 and 307. ECF No. 10-3. According to the Incident Report:

On 10/14/21 at approximately 2:30 p.m., while working as the BB unit

officer, I observed inmate Mikle, Phillip #98195-044 involved with a

group of inmates at the entrance to BB. Inmate Mikle was standing

inside the front door with 20-30 inmates. He yelled, “I’m standing here

until they let us go to commissary! We all need to stand here until they

let us go to commissary!” The front door was not able to be secured

with the mass of inmates standing by. I ordered Mikle once again to

move and go away from the door. He remained in the doorway after I

gave the order.

Td.

On October 15, 2021, at approximately 1:25 p.m., the BOP served Petitioner with

Incident Report No. 3557578 and referred the incident to the Unit Discipline Committee (UDC)

for further disposition. Jd. The UDC convened for an initial hearing on October 19, 2021, after

providing Petitioner with a notice of his rights. /d. at 2; ECF No. 10-4. Through a written

statement, Petitioner denied encouraging a demonstration or disregarding an order. ECF No. 10-

6 at p. 2. At the conclusion of the hearing, the UDC determined that there was sufficient

evidence to move forward and referred the incident report to the Disciplinary Hearing Officer

(DHO) for appropriate sanctions. ECF No. 10-3 at p. 2. After receiving notice of the DHO

hearing, Petitioner declined the assistance of a staff representative but requested another inmate,

Malcom Taylor, as a witness. ECF No. 10-5 at p. 2.

Petitioner’s disciplinary hearing before the DHO took place on October 27, 2021. ECF

No. 10-6 at 2. Petitioner acknowledged that he had received a copy of the incident report,

understood his rights, and that he declined to exercise his right to a staff representative. Id.; ECF

No. 10-5 at p. 2; ECF No. 10-4. Speaking on his own behalf, Petitioner stated that he “was

standing there at the last minute” but “said nothing.” Jd. Through a written statement, Petitioner

denied that an officer ever approached him and gave him an order and denied yelled at any other

inmates to do a demonstration. /d. Petitioner’s witness, inmate Taylor, appeared in person and

testified that Petitioner “told the officers he didn’t want to be in the unit” and “said he needed to

see psychology.” /d. Finally, the DHO reviewed silent video footage of the incident and

determined that it was consistent with the eyewitness account of the officer. Jd. at p. 3.

Based on Petitioner’s statement and testimony, inmate Taylor’s testimony, the reporting

officer’s written statement and testimony, and the video footage of the incident, the DHO

concluded that the greater weight of evidence supported the conclusion that Petitioner had

engaged in or encouraged a group demonstration. /d. at 3. After determining that Petitioner had

committed the charged offense, the DHO sanctioned him with 30 days of disciplinary

segregation, disallowance of 27 days of Good Conduct Time, and a loss of commissary

privileges for 270 days. Id. at 4.

The instant petition for writ of habeas corpus,! filed pursuant to 28 U.S.C. § 2241,

challenges the due process provided during the disciplinary process. Petitioner raises the

following arguments: (1) the DHO improperly found him guilty based on insufficient evidence;

and (2) the DHO violated his due process rights by failing to call his requested witness; and (3)

the DHO hearing was “rushed.” ECF No. 4 at p. 2. This matter is fully briefed and ripe for

disposition.

Ul. Standard of review

Federal prisoners have a liberty interest in statutory good time credits. Wolff v.

McDonnell, 418 U.S. 539, 557 (1974); see also 18 U.S.C. § 3624(b)(1).. While “prison

disciplinary proceedings are not part of a criminal prosecution and the full panoply of rights due

a defendant in such proceedings does not apply,” the United States Supreme Court has identified

the following minimum procedural due process rights that must be afforded to a prisoner accused

| Under § 2241, district courts have authority to grant habeas corpus “within their respective jurisdictions.” At the

time that he filed his Petition, Petitioner was confined at FC] McKean, which is located within the territorial

boundaries of the Western District of Pennsylvania.

of misconduct in prison which may result in the loss of good time credit: (1) the right to appear

before an impartial decision-making body; (2) twenty-four hour advance written notice of the

disciplinary charges; (3) an opportunity to call witnesses and present documentary evidence in

his defense when it is consistent with institutional safety and correctional goals; (4) assistance

from an inmate representative if the charged inmate is illiterate or complex issues are involved;

and, (5) a written decision by the fact finder of the evidence relied upon and the rationale behind

the disciplinary action. Wolff, 418 U.S. at 563-67.

In reviewing a disciplinary proceeding, the Court’s function is not to decide whether it

would have reached the same decision, but to consider “whether there is any evidence in the

record that could support the conclusion reached by the disciplinary board.” Superintendent v.

Hill, 472 U.S. 445, 455-57 (1985). See also Denny v. Schultz, 708 F.3d 140, 145 (3d Cir. 2013)

(“[A] reviewing court need only find that the DHO’s decision had ‘some basis in fact’ in order to

affirm the decision as comporting with the Due Process Clause.”). This review is minimal, and

“{a] challenge to the weight accorded evidence is not relevant to the question of whether the

decision was supported by ‘some evidence’ because the standard does not require ‘weighing of

the evidence.’” McCarthy v. Warden Lewisburg USP, 631 Fed. Appx. 84, 86-87 (3d Cir. 2015)

(quoting Hill, 472 U.S. at 455). Rather, “[o]nce the reviewing court determines that there is

some evidence in the record to support the finding of the hearing officer, an inmate’s challenge

to the weighing of the evidence must be rejected.” Cardona v. Lewisburg, 551 Fed. Appx. 633,

637 (3d Cir. 2014).

IV. Discussion

Each of Petitioner’s grounds for relief rests on his contention that staff at FCI McKean

violated his due process rights during his DHO hearing. Specifically, Petitioner contends that the

hearing was rushed, he was improperly found guilty, the DHO’s decision was not based on

sufficient evidence, and he was denied the right to call his witness. None of these claims

warrants relief.

As noted above, it is well-settled that an inmate’s sanction “will not result in a due

process violation as long as the inmate is provided with the process he is due under [Wolff v.

McDonnell].” Macia v. Williamson, 219 Fed. Appx. 229, 233 (3d Cir. 2007). Those minimum

requirements are limited to: (1) the right to appear before an impartial decision-making body; (2)

twenty-four hour advance written notice of the disciplinary charges; (3) an opportunity to call

witnesses and present documentary evidence in his defense when it is consistent with

institutional safety and correctional goals; (4) assistance from an inmate representative if the

charged inmate is illiterate or complex issues are involved; and, (5) a written decision by the fact

finder of the evidence relied upon and the rationale behind the disciplinary action. Wolff, 418

USS. at 563-67.

Turning first to Petitioner’s averment that the DHO hearing was “rushed,” the Court

notes that the record clearly refutes Petitioner’s suggestion that the timing of the hearing violated

the minimum due process rights outlined in Wolff. It is undisputed that Petitioner received

written notice of the charges against him on October 19, 2021, over one week before the DHO

hearing. This satisfies the “twenty-four hour advance written notice” requirement contemplated

by Wolff.

Secondly, to the extent that Petitioner challenges the sufficiency of the evidence against

him, that challenge also fails. In reaching his decision, the DHO relied on a host of exhibits

including Petitioner’s statement and testimony, inmate Taylor’s testimony, the incident report

and statement of the reporting officer, and the video footage of the incident. These exhibits

clearly amount to “some evidence” in support of the charge and, therefore, Petitioner’s due

process rights were not violated by the DHO’s determination. See Donahue v. Grondolsky, 398

Fed. Appx. 767, 772 (3d Cir. 2010) (noting that courts are not “required to re-weigh the

evidence, or re-assess the credibility of [a petitioner’s] defense”); Sepulveda v. Warden Canaan

USP, 645 Fed. Appx. 115, 118 (3d Cir. 2016) (reviewing court may not independently assess the

credibility of witnesses or re-weigh the evidence so long as the DHO’s decision is supported by

“any evidence in the record”) (quoting Hill, 472 U.S. at 454-56).

Finally, Petitioner contends that the DHO violated his due process rights by refusing to

allow him to call a witness, Malcolm Taylor, in his defense. Although the DHO’s report states

that inmate Taylor “appeared in person” and testified that Petitioner “told the officers he didn’t

want to be in the unit” and “needed to see psychology,” ECF No. 10-6 at p. 2, Petitioner

contends that the DHO “falsified” this portion of the report and, in fact, “inmate Malcolm did not

come to my hearing to testify on my behalf.” ECF No. 13-1 at p. 4. In a supporting affidavit,

Taylor corroborates that he “was not present to plead on Mikle’s behalf” on the date of the

hearing and that “the DHO is lying in his report stating that ‘I appeared in person’ and made a

statement.” ECF No. 13-2 at p. 3. Had he been called to testify, Taylor states that he would

have told the DHO that he “observed inmate Mikle tell Mr. Dinnis that he was tired of inmates

being the reason that he continued to be locked down and that he wanted to talk to the

psychology doctor.” /d. at p. 2. He also would have argued to the DHO that the accusing officer

was “retaliating against Mikle . . . because of his history of reporting officer abuse against other

inmates.” /d. at p. 3.

Petitioner’s claim fails for two reasons. First, despite Petitioner’s vigorous contention

that Taylor did not personally appear at the hearing to testify, there can be no dispute that the

DHO obtained testimony (or at least a statement) from Taylor. The description of Taylor’s

testimony in the DHO’s report ~ that Petitioner was in his cell and asking to speak to psychology

when the alleged misconduct occurred — precisely mirrors the proposed testimony described by

Taylor in his affidavit. The DHO’s report indicates that he weighed, considered, and rejected

that testimony in reaching his decision. Even if Petitioner could establish that the DHO’s

statement that this testimony was provided in person was inaccurate, the DHO’s decision to

obtain that testimony in another manner (such as a written statement or prior interview) would

not amount to a due process violation. See Kenney v. Lewisburg, 640 Fed. Appx. 136, 139 (3d

Cir. 2016) (noting that prisoners do not have an “unqualified right to call witnesses” and that a

prison’s decision not to allow a witness to testify in person does not violate due process where,

for example, the witness’ testimony can be offered in the form of a written statement) (citing

Wolff, 418 U.S. at 566).

More critically, the Court of Appeals for the Third Circuit has repeatedly emphasized that

“(t]here is no due process violation where a petitioner fails to show prejudice from his inability

to call a witness.” Lacey v. Ortiz, 2019 WL 2710086, at *5 (D.N.J. June 27, 2019). See, e.g.,

Anderson v. Bledsoe, 511 Fed. Appx. 145, 148 (3d Cir. 2013) (no due process violation where

DHO did not call an inmate's witness because the witness provided a written statement that his

testimony would not have exculpatory value); Pachtinger v. Grondolsky, 340 Fed. Appx. 774,

776 (3d Cir. 2009) (no due process violation where Petitioner failed to show prejudice based on

his inability to call a witness). In other words, “[a]ny alleged denial of [d]ue [p]rocess will

suffice to overturn a disciplinary proceeding only where those errors were, in fact, prejudicial.”

Jones v. Merendino, 2023 WL 8295274, at *2 (D.N.J. Dec. 1, 2023) (citing Millhouse v. Bledsoe,

458 Fed. Appx. 200, 203 (3d Cir. 2012); Wilson v. Ashcroft, 350 F.3d 377, 380-81 (3d Cir.

2003)). Given that the DHO considered and rejected Taylor’s testimony, in whatever form it

was offered, at the time of the hearing, Petitioner cannot establish that he was prejudiced by

Taylor’s alleged failure to appear. See, e.g., Patel, 447 Fed. Appx. at 340 (rejecting habeas

petition where petitioner could not demonstrate prejudice stemming from alleged procedural

violations); Jennings v. Hollingsworth, 2016 WL 880501, at *8 (D.N.J. March 8, 2016)

(“Because this Court has concluded that there is some evidence to support the Code 217 and 297

violations,” Petitioner “cannot show that he suffered prejudice.”). No relief is warranted.

V. Conclusion

For each of the foregoing reasons, Petitioner’s petition for a writ of habeas corpus is

denied.” An appropriate order follows.

DATED this 6" day of February, 2024.

BY THE COURT:

RICHARD A. AA LO

Chief United States Magistrate Judge

Because “{flederal prisoner appeals from the denial of a habeas corpus proceeding are not governed by the

certificate of appealability requirement,” the Court need not make a certificate of appealability determination in this

matter. Williams v. McKean, 2019 WL 1118057, at *5 n. 6 (W.D. Pa. Mar. 11, 2019) (citing United States v.

Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000), abrogated on other grounds by Gonzalez v. Thaler, 565 U.S. 134

(2012)); 28 U.S.C. § 2253(c)(1)(B).