United States District Court, S.D. Mississippi, Northern Division
RICHARD J. MERCY PETITIONER
WARDEN LARRY SHULTS RESPONDENT
PROPOSED FINDINGS OF FACT AND RECOMMENDATION
H. WALKER UNITED STATES MAGISTRATE JUDGE.
J. Mercy, proceeding pro se, filed a 28 U.S.C.
§ 2241 petition for writ of habeas corpus seeking
restoration of 27 days of good time credit. Doc. .
Petitioner currently serves a 120-month sentence at the
Federal Correctional Institution (FCI) in Yazoo City,
Mississippi for conspiracy to possess with intent to
distribute a controlled substance. Doc. [7-1] at 1. The
underlying incident and resulting disciplinary action that is
the subject of the instant petition occurred at FCI Miami.
Petitioner argues that (1) there was insufficient evidence to
support the Disciplinary Hearing Officer's (DHO)
decision; (2) the DHO was not fair and impartial because he
based his decision on feelings rather than facts; (3) the DHO
failed to consider mitigating evidence; and (4) the Bureau of
Prisons (BOP) withheld evidence. In his memorandum in
support, Petitioner appears to assert the additional claim
that, in violation of BOP regulations, prison officials
failed to conduct an investigation of the incident. Doc. 
January 11, 2016 at 12:30 pm, Unit Manager Posada observed
Petitioner pushing a safety cart, which contained three
boxes, towards the camp entrance at FCI Miami. Doc. [7-3] at
1; [7-5] at 1. When Petitioner noticed Posada, Petitioner
stopped walking and attempted to head to a nearby warehouse.
Doc. [7-3] at 1. Posada and Senior Officer Black signaled to
Petitioner to come back and asked him what he was doing.
Id. Petitioner said he was performing safety work
and explained that he picked up the boxes from the warehouse
to bring to the camp. Id. There were two sealed
boxes on the bottom of the cart labeled
“Degreaser”. Officer Black searched the two
sealed boxes and discovered that they contained 270 eggs.
January 11, 2016, Posada issued an Incident Report charging
Petitioner with Possession of Stolen Property in violation of
Code 226. Doc. [7-3]. In his report, Posada stated that
“clearly these items were stolen from food
service.” Id. The investigation was conducted
on the same day as the incident. The Incident Report was
delivered to Petitioner at 5:05 p.m. Id. Petitioner
was read his rights “and stated he understood
them.” Id. He requested a staff witness but
“did not have anything to say” regarding the
incident. Id. Due to the incident level, the
Petitioner's charge was referred to the DHO for a
hearing. Id. Petitioner received notice of the DHO
hearing on January 19, 2016. Doc. [7-7]. He waived his right
to have a staff member represent him at the hearing.
Id. Petitioner also was informed of his rights to
call witnesses and to present documentary evidence. Doc.
hearing took place on February 11, 2016. Doc. [7-2] at 1.
Petitioner denied the charges, stating in his defense that
even though he took the cart from the warehouse and picked up
the boxes, he “didn't know what was in the
boxes.” Id. at 1-2. Petitioner requested that
Warehouse Foreman Rodriguez appear as his witness.
Id. at 1. Rodriguez stated that while he saw
Petitioner get the boxes out of the cage, Rodriguez
“did not issue the boxes to him to deliver
supplies.” Id. Rodriguez did not know who put
the boxes in the cage. Id. At the conclusion of the
hearing, the DHO found that the act was committed as charged.
Id. The DHO based his decision on the reporting
officer's statement, the Incident Report, the
investigation, the photograph of the boxes, and the monetary
value of the eggs. Id. The DHO additionally relied
on portions of Rodriguez's testimony, namely that the
boxes were not issued to Petitioner. Id. at 2. The
DHO further explained that he “feels [Petitioner] did
know the eggs were in the boxes..., ” adding that
Petitioner “routinely deliver[s] supplies” and
therefore should have realized that the two boxes of eggs
were not the same weight as the one filled with cleaning
supplies. Id. Sanctions given included 27 days loss
of good conduct time credit. Id. The DHO verified
that Petitioner was advised of the findings, specific
evidence relied on, the reasons for the action, and his right
to appeal within 20 days. Id. Petitioner received a
copy of the DHO decision on February 11, 2016. Id.
Petitioner exhausted administrative remedies as to some of
his claims and then filed the instant § 2241 petition.
lost 27 days of good-conduct time as a result of the prison
disciplinary proceedings against him. A federal prisoner
holds a protected liberty interest in good-conduct time;
therefore, due process protections must be afforded prior to
its revocation. See Wolff v. McDonnell, 418 U.S. 539
(1974); see also Henson v. U.S. Bureau of Prisons,
213 F.3d 897, 898 (5th Cir. 2000). However, the Supreme Court
has explained that “the full panoply of rights due a
defendant in [criminal] proceedings” do not apply in
prison disciplinary proceedings. Wolff, 418 U.S. at
556. Under Wolff, due process is satisfied when the
inmate is given: (1) at least 24 hours advance written notice
of the charges; (2) an opportunity to present witness
testimony and documentary evidence; (3) assistance at the
hearing if requested; (4) an impartial tribunal; and (5) a
written statement of the evidence relied upon and the reason
for the disciplinary action. Id. at 563-70.
the basic due process requirements were met in this case.
First, Petitioner received notice of the charges against him
more than 24 hours in advance of the DHO hearing.
Specifically, he received notice on January 19, 2016, for a
hearing that commenced on February 11, 2016. Second,
Petitioner was advised of his rights to call witnesses and to
present documentary evidence. Pursuant to Petitioner's
request, Warehouse Foreman Rodriguez appeared as a witness at
the hearing. Third, Petitioner was advised of his right to
staff representation, but he waived this right. Fourth,
Petitioner appeared before an impartial tribunal, as the
presiding DHO was not involved in the incident,
investigation, or preparation of the Incident Report. Fifth,
the DHO prepared a written report, which Petitioner received
on February 11, 2016, containing a statement of the evidence
relied upon and the reasons supporting the DHO's
argues there was insufficient evidence to support the
DHO's conclusion that Petitioner knew that the boxes
contained eggs rather than cleaning supplies. In prison
disciplinary actions, due process is satisfied when there is
“some evidence” to show that the inmate committed
the charged offense. Superintendent, Massachusetts Corr.
Inst. v. Hill, 472 U.S. 445, 454 (1985). The Court must
consider “whether any evidence at all” supports
the DHO's conclusion. Smith v. Rabalais, 659
F.2d 539, 545 (5th Cir. 1981); see Pina v. Tamez,
470 Fed.Appx. 298, 299 (5th Cir. 2012) (explaining that a
disciplinary proceeding will only be overturned “where
there is no evidence whatsoever” to support the
case, sufficient evidence supports the DHO's conclusion.
Petitioner admitted he was in possession of the boxes. The
warehouse foreman stated that he observed Petitioner retrieve
the boxes from the cage, but he had not issued the boxes to
Petitioner for delivery. The reporting officer also witnessed
Petitioner in possession of the boxes. It is undisputed that
two of the boxes marked cleaning supplies in fact contained
270 eggs. Although Petitioner disputes whether he knew there
were eggs rather than cleaning supplies in the boxes, some
evidence still supports the DHO's conclusion that
Petitioner committed the offense of being in possession of
and Impartial DHO
argues that the DHO was not impartial because the DHO's
decision “was determined by feelings and
conjecture.” Doc.  at 8. Petitioner does not allege
that the DHO was involved in the incident, the investigation,
or the preparation of the Incident Report. Nor is there any
evidence to support such a conclusion. Thus, Petitioner has
not alleged facts to indicate “any pre-existing bias or
opinion which would preclude [the decisionmaker] from making
a fair, impartial, and informed decision.” See
Morissey v. Brewer, 408 U.S. 471, 486 (1972). Although
the DHO stated that it was his feeling Petitioner knew the
eggs were in the boxes, the DHO also relied on other
testimony and evidence to demonstrate that Petitioner was in
possession of stolen property. Furthermore, the DHO based his
“feeling” on the fact that Petitioner routinely
delivered supplies and should have realized the boxes
containing eggs were not the same weight as those containing
cleaning supplies. Petitioner has failed to identify a
preexisting bias or opinion on the part of the DHO;
therefore, his argument regarding the impartiality of the DHO
is without merit.
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