Lewis v. Howard

Full title: Jerry Lee Lewis, Petitioner, v. C. Howard, Respondent.

Court: United States District Court, District of Arizona

Date published: Feb 7, 2022

CV-21-00043-TUC-DCB (LAB) (D. Ariz. Feb. 7, 2022)

Opinion

CV-21-00043-TUC-DCB (LAB)

02-07-2022

Jerry Lee Lewis, Petitioner, v. C. Howard, Respondent.

Leslie A. Bowman, United States Magistrate Judge.

REPORT AND RECOMMENDATION

Leslie A. Bowman, United States Magistrate Judge.

On February 1, 2021, the petitioner, an inmate confined in the U.S. Penitentiary in Tucson, AZ, filed a Petition for Writ of Habeas Corpus pursuant to Title 28, United States Code, Section 2241. (Doc. 1) The petitioner, Jerry Lee Lewis, claims his Constitutional rights were violated by disciplinary action #3246843. Id. He asserts that this court should reinstate good time credits taken from him and expunge the incident from his record. (Doc. 1, p. 9)

Pursuant to the Rules of Practice of this Court, this matter was referred to the Magistrate Judge for Report and Recommendation. (Doc. 7)

The petition should be denied. Lewis did not lose any good time credits as a result of the disciplinary action.

Discussion

Habeas corpus relief pursuant to §2241 is available if the petitioner can show he “is in custody in violation of the Constitution or laws or treaties of the United States. . . .” 28 U.S.C. § 2241(c)(3). 1 The “in custody” requirement is satisfied if the petitioner seeks release from custody or, at least, a reduction in the length of his sentence. For example, “Habeas corpus jurisdiction is available under 28 U.S.C. sec. 2241 for a prisoner's claims that he has been denied good time credits without due process of law.” Bostic v. Carlson, 884 F.2d 1267, 1269 (9^th Cir. 1989), overruled on other grounds by Nettles v. Grounds, 830 F.3d 922 (9^th Cir. 2016).

In this case, Lewis asserts that as a result of incident report # 3246843, good time credits were taken from him in violation of his Constitutional rights. (Doc. 1) He attached to his petition the Discipline Hearing Officer (DHO) Report concerning this incident. According to the Report, Lewis was charged with “Fighting with another person, ” the “act was committed as charged, ” and sanctions were imposed including “Disallow 27 Days Good Conduct Time.” (Doc. 1-1, pp. 2-3) The prison records indicate, however, that Lewis did not lose any Good Conduct Time.

Lewis was convicted of kidnapping, in violation of 18 U.S.C. § 1201, in the Northern District of Florida in December of 1995. (Doc. 24, pp. 4, 10-11) He was sentenced to life imprisonment. Id. A prisoner serving a sentence of life imprisonment does not have a release date and cannot accrue Good Conduct Time. (Doc. 24, p. 4); (Doc. 24-1, p. 20); 18 U.S.C. § 3624(b)(1) (“[A] prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of a prisoner's life, may receive credit toward the service of the prisoner's sentence . . . .”) (emphasis added). Therefore, Lewis does not accrue Good Conduct Time and cannot, and did not, lose Good Conduct Time, the DHO Report's contrary implication not withstanding. See (Doc. 24, p. 8) (The Bureau of Prison's computation calculation correctly indicates that Lewis's “Earned and Projected” Good Conduct Time is Zero.) The pending petition may be denied as moot. In the alternative, the court finds that Lewis's petition does not allege that he is “in custody” in violation of his Constitutional rights. His claim is not cognizable.

Lewis argues in his reply brief that the decision of the Hearing Officer should be reversed because it raises his inmate classification score and has an adverse effect on his eligibility for transfer to a lower security facility. (Doc. 21, p. 2) Habeas relief, however, only 2 lies where the petitioner raises a claim that, if proven, will “necessarily lead to immediate or speedier release.” Nettles v. Grounds, 830 F.3d 922, 934 (9^th Cir. 2016) (emphasis added). It is not enough if the error “likely” or “could potentially” affect the duration of the petitioner's confinement. Id. Moreover, a claim that addresses only a petitioner's conditions of confinement does not satisfy the “in custody requirement and is not cognizable. Id. at 933; Hunter v. Thomas, 2012 WL 5984662, at *2 (D. Or. 2012) (“[W]here a petitioner is not subject to any loss of good-time credits as a result of a disciplinary proceeding, habeas corpus relief is not available simply as a mechanism by which to expunge a prison disciplinary conviction, ”even where the section 2241 petitioner alleged that the “offense makes him ineligible for a transfer to a facility closer to his family.”), report and recommendation adopted, 2012 WL 5955616 (D. Or. 2012).

RECOMMENDATION

The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order denying the petition. (Doc. 1) Lewis did not lose good conduct time. Moreover, his claim is not cognizable.

Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within 14 days of being served with a copy of this report and recommendation. If objections are not timely filed, they may be deemed waived. The Local Rules permit a response to an objection. They do not permit a reply to a response without the permission of the District Court. 3