Opinion
No. 2:12-cv-87-DPM-BD
12-04-2012
ROBERT NELSON HOWELL, JR. Reg. # 09232-026 PETITIONER v. T.C. OUTLAW, Warden, FCI Forrest City RESPONDENT
ORDER
Magistrate Judge Beth Deere has recommended that Howell's petition for a writ of habeas corpus be dismissed for failure to make out a due process violation that would justify any relief. Document No. 11. Judge Deere ably addressed the facts set out in Howell's petition. But Howell has expanded those facts in a timely objection. Document No. 12. Howell now says that Hodges participated substantially in the decision to refer him for disciplinary charges, then presided over the hearing that imposed sanctions. Howell points to a Third Circuit case that holds such a conflict would violate due process. Meyers v. Alldredge, 492 F.2d 296 (3d Cir. 1974). Eighth Circuit precedent appears to be the same. Jensen v. Satran, 651 F.2d 605, 607 (8th Cir. 1981) (remanding to determine, in part, whether disciplinary board included a prison official who submitted petitioner's incident report); compare Ivy v. Moore, 31 F.3d 634, 635 (8th Cir. 1994) (hearing officer's independent investigation did not violate due process because it "was not done to prepare for prosecution of the charge[.]"). In the circumstances the Court declines the recommendation, Document No. 11, and returns the case to Judge Deere to consider this wrinkle.
So Ordered.
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D.P. Marshall Jr.
United States District Judge