United States District Court, S.D. Mississippi, Northern Division
November 14, 2014
REYNAUD CHANDLER, PETITIONER
ARCHIE LONGLEY, RESPONDENT
Reynaud Chandler, Plaintiff, Pro se, Terminal Island, CA.
For Archie Longley, Warden, FCC Yazoo City, Defendant: Mitzi Dease Paige, U.S. ATTORNEY'S OFFICE - Jackson, Jackson, MS.
REPORT AND RECOMMENDATION
Michael T. Parker, United States Magistrate Judge.
BEFORE THE COURT is the pro se Petition  of Reynaud Chandler for a Writ of Habeas Corpus under 28 U.S.C. § 2241. Having considered the submissions of the parties, the record, and the applicable law, the undersigned recommends that Petitioner's request for relief pursuant to 28 U.S.C. § 2241 be denied and that the Petition be dismissed with prejudice.
On February 27, 2012, Petitioner Reynaud Chandler, a post-conviction inmate, filed his Petition alleging that his constitutional rights were violated while he was incarcerated at the United States Penitentiary in Canaan, Pennsylvania. Specifically, Petitioner alleges that his due process rights were violated when he was disciplined for possessing a cell phone.
On February 19, 2010, Correctional Officer A. Geary conducted a search of the indoor gymnasium within the Canaan Penitentiary and found a cell phone and charger. At the time of the search, Petitioner was the only inmate in the gym. Officer Geary turned the cell phone over to Special Investigative Technician, B. Roberts. Roberts determined that ten of the twenty-two telephone numbers stored on the cell phone matched telephone numbers on Petitioner's official telephone list. Roberts issued Petitioner an Incident Report charging him with a violation of Disciplinary Code 108 of 28 C.F.R. § 541.13, which prohibits the " [p]ossession, manufacture, or introduction of a hazardous tool (tools most likely to be used in an escape or escape attempt or to serve as weapons capable of doing serious bodily harm to others; or those hazardous to institutional security or personal safety; e.g. hack-saw blade)." 28 C.F.R. § 541.13; ([5-3] at 2.)
Thereafter, a Disciplinary Hearing Officer found that Petitioner committed a violation of Disciplinary Code 108. The Hearing Officer imposed the following sanctions: (1) disallowance of forty days of good conduct time, (2)forfeiture of 120 days of good conduct time, (3) sixty days of disciplinary segregation, (4) loss of commissary privileges for one year, (5) loss of telephone privileges for two years, (6) loss of TRULINCS privileges for one year, and (7) loss of personal property for sixty days. Additionally, the Hearing Officer recommended a disciplinary transfer. ([5-7] at 4.)
Petitioner claims that classifying cell phones as hazardous tools under Section 541.13 amounted to the issuance of an invalid substantive rule because it was not issued in accordance with the Administrative Procedure Act's notice-and-comment procedures. Petitioner also claims that the Bureau of Prisons failed to provide sufficient notice that cell phones qualified as hazardous tools under Section 541.13.
Respondent filed his Response arguing that (1) Petitioner failed to exhaust his administrative remedies regarding his claim that classifying cell phones as hazardous tools ran afoul of the Administrative Procedure Act (" APA") and (2) the Bureau's interpretation of a cell phone as a hazardous tool is a valid interpretative rule under the APA.
Exhaustion of Administrative Remedies
It is well established that petitioners seeking habeas relief under Section 2241 generally must exhaust their administrative remedies prior to presenting their claims in federal court. See Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994); Gallegos-Hernandez v. U.S., 688 F.3d 190, 194 (5th Cir. 2012). A petitioner " must fairly present all claims forming the basis of his petition through the appropriate channels before seeking relief in federal court." McKnight v. Longley, 2012 WL 5342510, at * 2 (S.D.Miss. Aug. 14, 2012) (citing Dickerson v. Louisiana, 816 F.2d 220, 228 (5th Cir. 1987)). Exceptions to the exhaustion requirement may be appropriate only " where the available administrative remedies either are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action." Fuller, 11 F.3d at 62. Such exceptions apply only in " extraordinary circumstances, " and the petitioner bears the burden of demonstrating circumstances warranting the waiver of the exhaustion requirement. Id.
In this case, Petitioner makes no argument that he is entitled to any exception to the exhaustion requirement. Instead, Petitioner argues that he raised the issue of whether classifying cell phones as hazardous tools violated the APA during the administrative remedies process. Having reviewed Petitioner's administrative remedy appeals, the undersigned finds that Petitioner did not present that particular issue at any stage of the administrative remedies process. Petitioner did argue that the Bureau failed to provide sufficient notice that cell phones qualified as hazardous tools, but he did not mention the APA or the notice-and-comment procedure. Accordingly, Petitioner's claim for habeas relief based on a violation of the APA may be dismissed for failure to exhaust. Notwithstanding Petitioner's failure to exhaust his administrative remedies, this claim for habeas relief fails on the merits.
Administrative Procedure Act
Petitioner claims that including a cell phone as an example of a hazardous tool under Section 541.13 amounted to the issuance of an invalid substantive rule because it was not issued in accordance with the APA's notice-and-comment procedures. Under the APA, substantive rules are subject to a rigorous notice-and-comment procedure and may be invalid if they are issued without following the proper procedure. Mercy Hosp. of Laredo v. Heckler, 777 F.2d 1028, 1032 (5th Cir. 1985). However, interpretive rules are not subject to the APA's notice-and-comment procedure. Id.
The Fifth Circuit addressed this issue in an unpublished decision and held that " including cell phones as hazardous tools does not amount to issuing a substantive rule and, therefore, is not subject to the APA's notice-and-comment procedures." Evans v. Martin, 496 Fed.Appx. 442, 444 (5th Cir. 2012). According to the Fifth Circuit, " [t]he determination that a cell phone qualifies as a hazardous tool under § 541.13 was . . . an act of interpretation; the decision to discipline [the inmate] for possessing a cell phone under § 541.13 required that prison officials determine what the statute or regulation means." Id. (citation and internal quotations omitted). " Disciplining [the inmate] amounted to little more than construing an already-extant regulation." Id.; see also, Alamo v. Zickefoose, 2013 WL 1007676 (D.N.J. March 12, 2013) (" [T]he BOP's inclusion of cell phones and related components as hazardous tools under Code 108 is simply an expanding interpretation of what constitutes a hazardous tool so that the BOP can effectively address the evolving ways inmate conduct and the introduction of contraband can threaten institutional safety and security.")
Because including a cell phone as an example of a hazardous tool under Section 541.13 constitutes an interpretive act, the APA's notice-and comment procedures were not implicated. Thus, habeas relief on this claim should be denied.
Petitioner also claims that the Bureau failed to provide sufficient notice that cell phones qualified as hazardous tools under Section 541.13. Indeed, " [t]he Fifth Circuit has expressly held that it is a violation of due process to punish inmates for acts which they could not have known were prohibited." Reeves v. Pettcox, 19 F.3d 1060, 1061 (5th Cir. 1994). " Inmates are entitled to receive prior notice or fair warning of prohibited conduct before being disciplined for violating prison rules." Evans, 496 Fed.Appx. at 444 (citing Reeves, 19 F.3d at 1061).
At the time of Petitioner's violation, Section 541.13 prohibited the " [p]ossession, manufacture, or introduction of a hazardous tool (tools most likely to be used in an escape or escape attempt or to serve as weapons capable of doing serious bodily harm to others; or those hazardous to institutional security or personal safety; e.g. hack-saw blade)."  Once again, the Fifth Circuit held that this regulation provided fair notice that a cell phone constitutes a hazardous tool. Evans, 496 Fed.Appx. at 445. According to the Fifth Circuit, " it is clear that an unauthorized cell phone falls within the definition of a hazardous tool because a cell phone can be used to plan an escape or to undermine safety and security." Id. " [A] person of ordinary intelligence would realize that a regulation prohibiting any item that would enable an escape attempt, undermine security, or threaten personal safety includes a cell phone." Id. at 446; see also, Blake, 288 Fed.Appx. 791, 794 (3rd Cir. 2008) (" [T]he ordinary person would know that possessing a cell phone and a charger in prison 'threatens the order, discipline, or security' of that institution"). Thus, habeas relief on this claim should be denied.
For the reasons stated above, it is the undersigned's recommendation that the relief sought in the Petition for Writ of Habeas Corpus  be denied and that the Petition be dismissed with prejudice.
NOTICE OF RIGHT TO OBJECT
In accordance with the rules and 28 U.S.C. § 636(b)(1), any party within fourteen days after being served a copy of this recommendation, may serve and file written objections to the recommendations, with a copy to the judge, the magistrate judge and the opposing party. The District Judge at the time may accept, reject or modify in whole or part, the recommendations of the Magistrate Judge, or may receive further evidence or recommit the matter to this Court with instructions. The parties are hereby notified that failure to file written objections to the proposed findings, conclusions, and recommendations contained within this report and recommendation within ten days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the proposed factual findings and legal conclusions accepted by the district court to which the party has not objected. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).