Opinion
1:19-cv-154
06-29-2021
ERIC T. LATHAM, Petitioner v. WARDEN OF FCI MCKEAN, Respondent
SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the petition for a writ of habeas corpus filed by federal prisoner Eric T. Latham (Petitioner) pursuant to 28 U.S.C. § 2241 be denied.
II. Report
A. Background
On May 5, 2008, the United States District Court for the Western District of Michigan sentenced Petitioner to a 105-month term of imprisonment, followed by a three-year term of supervision, for being a Felon in Possession of a Firearm. ECF No. 11-2 at 7. On May 20, 2014, while serving his sentence at the Federal Correctional Institution in Coleman, Florida, Petitioner was approved for placement in a residential reentry center (RRC) or home confinement in Orlando, Florida. ECF No. 11-12 at 2. On August 21, 2014, Petitioner was admitted to an RRC run by Dismas Charities, Inc. for pre-release community-based programming. Id. See also ECF No. 11-4 at 2.
On December 26, 2014, Petitioner was placed on escape status following an incident in which he assaulted his wife and stepdaughter with a knife and fled his house. ECF No. 11-14 at 2. The Resident Manager at Dismas Charities issued an Incident Report charging Petitioner with escape and noting that he was in the custody of the Polk County Sheriffs Department. Id. Because he was detained by local law enforcement outside of a 50-mile radius from Dismas Charities, an in absentia disciplinary hearing was conducted on January 6, 2015. Id. at 2-3; ECF No. 12 ¶ 4. See also 28 C.F.R. § 541.8(e)(4) ("If you escape or are otherwise absent from custody, the DHO will conduct a hearing in your absence at the institution where you were last confined.").
The Operations Manual for Dismas Charities, Inc., provides that if a resident charged with a misconduct is held in a local jail outside of a 50-mile radius from the RRC, the Incident Report may be processed in absentia. ECF No. 12-1 at 25.
At the conclusion of the hearing, the Center Discipline Committee (CDC) determined that Petitioner had committed the prohibited act of Escape, in violation of Code 102, and recommended that Petitioner be removed from the RRC and sanctioned with a loss of good conduct time. ECF No. 11-17 at 2-3. On June 22, 2015, a BOP Discipline Hearing Officer (DHO) certified the CDC report and imposed the following sanctions: (1) disallowance of 41 days of good conduct time; (2) forfeiture of 30 days of non-vested good conduct time; (3) two years removal from the RRC program; and (4) six months loss of visiting and telephone privileges. Id. at 3-5.
Under BOP regulations and policy, there are two different "Escape" violations: Code 102 Escape, a Greatest Severity misconduct; and Code 200 Escape, a High Severity misconduct. Code 102 Escape is defined as: "Escape from escort; escape from any secure or non-secure institution, including community confinement; escape from unescorted community program or activity; escape from outside a secure institution." 28 C.F.R. § 541 (Table 1).
On August 28, 2015, the BOP redesignated Petitioner to FCI Coleman. ECF No. 11-4 at 2. Approximately two months later, on November 2, 2015, Petitioner was released upon satisfaction of his sentence. Id. Notably, the disallowance and forfeiture of good conduct time imposed by the DHO was applied against the sentence from which Petitioner was released on that date. ECF No. 11-6 at 6-7; ECF No. 11-7 at 2.
On September 8, 2016, while Petitioner was at liberty, the United States District Court for the Western District of Michigan revoked Petitioner's supervised release and imposed a 22-month term of imprisonment in criminal case No. 07-cr-270 (W.D. Mich.). ECF No. 11-2 at 3. Petitioner was designated to FCI McKean. ECF No. 11-4 at 2. On September 5, 2017, while serving the 22-month term, the United States District Court for the Eastern District of Michigan sentenced Petitioner to a 60-month term of imprisonment for being a Felon in Possession of a Firearm in criminal case No. 17-cr-04 (E.D. Mich.). ECF No. 11-2 at 4. The court ordered the 60-month sentence to run consecutively to the prior 22-month sentence. Id., at 4-5.
On February 13, 2018, FCI McKean re-issued the incident report related to Petitioner's escape from Dismas Charities on December 26, 2014. See ECF No. 11-19. It appears that this was done pursuant to BOP Program Statement 5270.09 which provides that:
When an inmate returns to custody following an absence during which sanctions were imposed by the DHO, the Warden has the charges reheard before the DHO, ordinarily within 60 days after the inmate's arrival at the institution to which he/she is designated after return to custody, following an appearance before the [Unit Discipline Committee] at that institution.
Program Statement 5270.09, Inmate Discipline Program (updated July 8, 2011), https://www.bop.gov/policy/progstat/5270.90_cn1.pdf (accessed June 24, 2021). Following an investigation, the incident report was referred to the Unit Discipline Committee (UDC) for an initial hearing on February 14, 2018. ECF No. 11-19. At the conclusion of that hearing, the UDC referred the incident report to a DHO for an in-person hearing. Id.
Petitioner appeared before the DHO at FCI McKean in connection with his escape charge on May 7, 2018. ECF No. 11-22 at 2. After considering the incident report, investigation, the DHO report from the in absentia hearing, and Petitioner's statement, the DHO concluded that Petitioner had committed the prohibited act of Escape in violation of Code 102 and re-imposed the previously imposed sanctions. Id. at 3-4.
Although the sanctions were re-imposed, they were not applied against Petitioner's current sentence. As previously noted, they had already been applied to the sentence that concluded with Petitioner's release on November 2, 2015.
The instant petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241, challenges the disciplinary sanctions imposed by the DHO. Petitioner contends that the BOP violated his constitutional right to due process by failing to provide written notice of the charges against him and detaining him past his projected release date without conducting an in-person hearing.
Under § 2241, district courts have authority to grant habeas corpus "within their respective jurisdictions." Petitioner is confined at FCI McKean, which is located within the territorial boundaries of the Western District of Pennsylvania.
B. Analysis
For federal prisoners, 28 U.S.C. § 2241 confers habeas jurisdiction over an inmate's challenge to the execution - as opposed to the validity - of his sentence. Car dona v. Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012). Two types of claims may ordinarily be litigated in a § 2241 proceeding. First, a prisoner may challenge conduct undertaken by the Federal Bureau of Prisons (the "BOP") that affects the duration of his custody. For example, a prisoner can challenge the BOP's computation of his federal sentence, see, e.g., Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990), or the constitutionality of a BOP disciplinary action that resulted in the loss of good conduct sentencing credits, Queen v. Miner, 530 F.3d 253, 254 n.2 (3d Cir. 2008). Secondly, a prisoner can challenge BOP conduct that "conflicts] with express statements in the applicable sentencing judgment." Car dona, 681 F.3d at 536; Woodall, 432 F.3d at 243.
Before addressing the merits of the petition, however, the Court must first consider whether Petitioner's claims are moot because he has already served the entire prison sentence to which the disciplinary sanction was applied. The mootness doctrine recognizes a fundamental truth in litigation: "[i]f developments occur during the course of adjudication that eliminate a plaintiffs personal stake in the outcome of a suit or prevent a court from being able to grant the requested relief, the case must be dismissed as moot." Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir.1996). This is because, "[u]nder Article III of the Constitution, a federal court may adjudicate 'only actual, ongoing cases or controversies.'" Burkey v. Mar berry, 556 F.3d 142, 147 (3d Cir. 2009) (citation omitted). "In other words, throughout the litigation, the plaintiff 'must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.'" DeFoy v. McCullough, 393 F.3d 439, 441-42 (3d Cir. 2005) (quoting Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990)). "A federal court must resolve a question of mootness before it assumes jurisdiction." United States v. Cruz, 2021 WL 2137667, at *1 (M.D. Pa. May 26, 2021) (quoting Goins v. United States, 2109 WL 3084244, at *4 (E.D. Tenn. July 15, 2019)).
In the context of a habeas challenge to prison disciplinary proceedings, "a petition for habeas corpus relief generally becomes moot when a prisoner is released from custody before the court has addressed the merits of the petition." Lane v. Williams, 455 U.S. 624, 631 (1982). In Burkey v. Marberry, for example, the Third Circuit "affirmed the district court's determination that a § 2241 petition challenging a prison disciplinary hearing was moot after the petitioner was released from BOP custody onto supervised release." Cruz, 2021 WL 2137667, at *2 (citing Burkey, 556 F.3d at 148). The Court reasoned that, because petitioner's sentence had expired, there was no "continuing injury" to avoid mootness after his release from BOP custody. Burkey, 556F.3dat 148. Relying on this principle, "[c]ourts have typically dismissed habeas petitions as moot where it is shown that the prisoner-petitioner has been released from the sentence which he is challenging, reasoning that when that sentence has been fully discharged a habeas petition attacking the sentence is no longer subject to redress in the courts." Ghertler v. Ebbert, 2011 WL 2006367, at *4 (M.D. Pa. Apr. 25, 2011) (collecting cases). See also Scott v. Schuylkill, FCI, 298 Fed.Appx. 202 (3d Cir. 2008) (challenge to loss of good time credits was moot following inmate's release from prison because his claim was no longer "redressable by a favorable judicial decision"); Williams v. Sherman, 214 Fed.Appx. 264 (3d Cir. 2007) (inmate's release from prison mooted his challenge to disciplinary sanctions imposed because of his escape); Razzoli v. FCI Allenwood, 200 Fed.Appx. 166 (3d Cir. 2006) (challenge to disciplinary sanction mooted by release).
Ghertler is particularly instructive. In Ghertler, the petitioner was serving the last portion of his federal sentence in an RRC when he escaped. 2011 WL 2006367, at *1. While the petitioner was still on escape status, an incident report charging him with escape was processed in absentia. Id. The petitioner was ultimately sanctioned with the loss of approximately 70 days of good conduct time. Id. As in the instant case, the petitioner served the remainder of his sentence, including the revoked good conduct time, and was released from prison without ever receiving an in-person hearing on his escape charge. Id. Ten months later, following his arrest on new and unrelated charges, the petitioner filed a § 2241 motion challenging his prior disciplinary sanction because he never received prior notice of the charge or an in-person hearing. Id. at *2.
After reviewing the parameters of the mootness doctrine, the district court concluded that it lacked jurisdiction over the petitioner's claim based on the "settled" proposition that "[an] inmate's completion of the underlying sentence renders moot any complaints about disciplinary hearings that were conducted while the prisoner served that sentence." Id. at *4. The court explained:
[Ghertler's] petition seeks to challenge a disciplinary hearing that occurred 41/2 years ago, while Ghertler was serving a different federal sentence. Ghertler has fully discharged all aspects of that sentence. Therefore, his complaints about that past sentence are no longer justiciable, and are moot.Id. [ ]
Approximately one year later, the district court ordered that Ghertler's disciplinary sanction be expunged because the BOP irretrievably lost Ghertler's entire disciplinary record and could no longer establish the facts underlying Ghertler's escape. See Ghertler v. Federal Bureau of Prisons, 2014 WL 4057837, at *l-2 (M.D. Pa. Aug. 15, 2014). The court acknowledged that Ghertler's claim was likely moot, but ordered the sanction expunged "out of an abundance of caution and recognizing that this specific disciplinary decision cannot now be justified or defended due to an administrative oversight by the Bureau of Prisons [in the form of] the loss of the entire disciplinary record." Id. at *8. No. such circumstances are presented in the instant case.
Here, the record clearly demonstrates that the disciplinary sanction at issue was applied to the term of incarceration that Petitioner completed on November 2, 2015. ECF No. 11-6 at 6-7; ECF No. 11-7 at 2. As Petitioner has completed the terms of that sentence, his challenge to that disciplinary sanction is moot. The fact that he has been subsequently convicted of an additional crime and returned to federal custody is irrelevant; as noted by several courts, including the Court of Appeals for the Third Circuit, a petitioner cannot "revive an otherwise moot claim through the simple expedient of being convicted on some new, and different, crime." Ghertler, 2011 WL 2006367, at *4. See also Razzoli, 200 Fed.Appx. at 169 n. 4 (rejecting inmate's argument that his reincarceration following a new criminal conviction revived a moot habeas claim related to a previously completed sentence). Such an exception would "reward criminal recidivists by giving them a greater right to pursue otherwise stale and moot claims than the rights possessed by former prisoners who refrain from committing new crimes." Id. Thus, because Petitioner served his entire disciplinary sanction when he completed his original sentence, and because his subsequent arrest has no bearing on that sanction, his § 2241 petition must be dismissed as moot.
At least one court has suggested that when a disciplined inmate is re-incarcerated, "that past discipline may follow the prisoner in his new confmement in ways which give rise to some continuing collateral consequences for the inmate." Ghertler, 2014 WL 4057837, at *7 (citing Leonard v. Nix, 55 F.3d 370, 373 (8th Cir. 1995)). Generally, however, courts "decline to apply the presumption of collateral consequences to prison disciplinary proceedings." Id. (citing Diaz v. Duckworth, 143 F.3d 345, 346 (7th Cir. 1998)). In any event, Petitioner has not made any attempt to demonstrate that continuing and collateral consequences flowing from the disciplinary decision survived the expiration of his original sentence.
III. Conclusion
For the foregoing reasons, it is respectfully recommended that Petitioner's petition for a writ of habeas corpus be denied.
Because "[f]ederal 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).
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may constitute a waiver of aappellate rights. See Brightell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).