Opinion
CIVIL ACTION NO. 98-5592 (JBS).
July 13, 2000
Calvin Munroe, Fairton, New Jersey, Petitioner, Pro Se.
Robert Cleary, United States Attorney, By: Louis J. Bizzarri, Assistant United States Attorney, Camden, New Jersey, Attorneys for Respondent.
OPINION
This matter is before the Court on application of Petitioner Calvin Munroe for writ of habeas corpus pursuant to 28 U.S.C. § 2241. In his petition, Munroe claims that his due process rights were violated when the Disciplinary Hearing Officer (DHO) failed to provide him with adequate notice of the charges being brought against him and deprived him of his right to present a witness at the disciplinary hearing. Munroe further claims that the disciplinary sanctions imposed by the DHO subsequent to those imposed by the Unit Disciplinary Committee (UDC) were in violation of the Double Jeopardy Clause of the Fifth Amendment to our Constitution. For the reasons stated below, the Court finds that Petitioner has failed to exhaust available administrative remedies and will dismiss the petition in its entirety without prejudice to refiling after appropriate administrative review.
I. BACKGROUND
On September 10, 1997, Petitioner was sentenced by the United States District Court for the Eastern District of Arkansas to 120 months imprisonment and five years of supervised release after being convicted of conspiracy to distribute and possession with intent to distribute over 1000 kg of marijuana. (Resp't's Br. at 1.) Taking into consideration Munroe's good conduct time credits, his projected date of release is December 25, 2005. (Id.)
On February 13, 1998, shortly after Petitioner's incarceration, FCI Fairton staff members observed Petitioner attempting to engage in a sexual act with a female visitor in violation of Bureau of Prisons (BOP) Code 205. (Id.) That day, the Disciplinary Hearing Officer prepared an incident report describing the incident in detail. The report identified the incident as "engaging in sexual conduct" and explained, inter alia, that Petitioner was caught on video with his right hand under his visitor's coat "rubbing her crotch area." (Resp't's Ex.3 Incident Rep.) The report also contained Petitioner's admission that the DHO's description of his actions was accurate in so much as he "was touching her in an affectionate way" and "had [his] hands under her coat and was touching her in her crotch." (Id.) Petitioner was given a copy of the report on the same day. (Id.)
Petitioner denies having made the comment "was touching her in her crotch" and believes that Mr. Rothbum, a staff member, fabricated the statement. (Pet. at Reg'l Admin. Rem. Appeal.) In the investigative report, Petitioner states that his visitor was wearing a skirt and therefore it was impossible for him to have been touching her inappropriately. (Resp't's Ex.3 Incident Rep.)
Shortly thereafter on February 17, 1998, the UDC decided not to refer the incident to the DHO for disposition. (Id.) Rather, based on Petitioner's written statement in the Incident Report and the videotape recording, the UDC determined that Petitioner committed the prohibited act and sanctioned him accordingly. Petitioner's commissary and visiting privileges were revoked for thirty days and six months, respectively. (Id.)
According to 28 C.F.R. § 541.10 et seq . , when BOP staff has reason to believe that an act prohibited under § 541.13 was committed by an inmate, staff members must prepare an incident report and refer it for investigation pursuant to § 541.15. (Resp't's Br. at 2.) After the investigation, the incident report is referred to the UDC for an initial hearing which is generally held within three (3) days from the date the inmate received the incident report. ( Id . ) See also 28 C.F.R. § 541.15(b). At this time, the UDC may choose to dismiss the charges, find a prohibited act was committed, or refer the incident to the DHO for further proceedings. ( Id . ) See also 28 C.F.R. § 541.15(f). If referred to the DHO, the DHO then has the authority to dismiss the charge or to find that a prohibited act was committed and impose any available sanction. ( Id . ) See also 28 C.F.R. § 541.18.
Following the UDC's imposition of sanctions, the Committee became aware of the fact that Petitioner was originally sentenced pursuant to the Prisoner Litigation Reform Act (PLRA) of 1996. (Resp't's Br. at 3.) Accordingly, on February 21, 1998, the UDC set aside the sanctions originally imposed and referred the case to the DHO for final disposition. (Id.) At this time, Petitioner requested his visitor as a witness at the hearing and requested a staff member to represent him. (Id. at 4.)
According to 28 C.F.R. § 541.13(a)(2), a prisoner is required to lose good conduct time credits when he or she was sentenced pursuant to the PLRA, and has engaged in a high severity category offense. ( Id .) Since the UDC is not authorized to deduct good conduct time, the UDC must refer the matter to the DHO, who has the authority to deduct time credits. Pursuant to 28 C.F.R. § 541.13(a)(2), the DHO is required to disallow from 14 to 27 days good conduct time upon finding that an inmate committed a high severity prohibited act, such as 205(a), attempting to engage in a sexual act. (Resp't's Ex.3 at 2.)
According to 28 C.F.R. § 541.17(c), an inmate has the right to have requested witnesses called to testify who have information directly relevant to the charge(s).
At the DHO hearing held on February 24, 1998, Mr. Steven Morton, a Discipline Hearing Officer at Fairton, informed Munroe that his civilian witness was not available for the hearing. Munroe was told he could postpone the hearing until an oral or written statement from his witness could be obtained or waive his right to call a witness and continue with the hearing. (Resp't's Ex.3, Dec. of Steven Morton.) According to Steven Morton, Munroe chose to waive his right to present a witness and signed a statement to that effect. (Id.) Contrary to Mr. Morton's statement, Petitioner claims that he did not make a voluntary waiver of his right to have a witness, but rather was coerced by Mr. Tait, his staff representative, into waiving this right. (Pet. at 4.)
Ultimately, the DHO determined that Petitioner attempted to engage in a sexual act with his visitor based on the videotape recording of the incident, the reporting officer's report, and Petitioner's admission. (Resp't's Br. at 4.) Accordingly, the DHO revoked Petitioner's visiting privileges for 180 days and deducted 27 days good conduct time. (Id.)
On March 26, 1998, Petitioner appealed the DHO's decision to the Regional Administrative Remedy Coordinator which subsequently denied Petitioner's plea for relief on May 15, 1998. (Pet. at 1.) Less than a month following that decision, on June 5, 1998, Petitioner appealed the Regional Coordinator's denial of relief to the Office of General Counsel. (Id.) That appeal was denied on August 14, 1998. (Id.)
II. DISCUSSION
Petitioner brings this petition pursuant to 28 U.S.C. § 2241, claiming that his due process rights were violated when the DHO failed to give him adequate notice of the charges against him and deprived him of his right to present a witness at his disciplinary hearing. He also claims that the DHO violated the Fifth Amendment's Double Jeopardy Clause by imposing sanctions after the UDC's imposition of sanctions.
A. Challenges to Prison Discipline Pursuant to § 2241
Generally, claims attacking the execution of Petitioner's sentence are properly brought under 28 U.S.C. § 2241 while claims attacking the imposition of a sentence are properly brought under § 2255. United States v. Ferri, 686 F.2d 147, 158 (3d Cir. 1982), cert. denied, 459 U.S. 1211 (1983). A petition brought under § 2241 is appropriate where Petitioner challenges the effect of events "subsequent to his sentence." Gomori v. Arnold, 533 F.2d 871, 874 (3d Cir.), cert. denied, 429 U.S. 851 (1976). Thus, where a prisoner is challenging the procedures followed by the Unit Disciplinary Committee and Discipline Hearing Officer during a disciplinary hearing, § 2241 is the appropriate means of challenging the action.
B. Exhaustion Requirement Under § 2241
A threshold issue in all habeas petitions filed pursuant to § 2241 is whether or not Petitioner has successfully exhausted his administrative remedies with respect to the claim(s) for which he seeks relief.
According to well-settled law, a federal prisoner ordinarily may not seek habeas relief until he has exhausted all available administrative remedies. Bradshaw v. Carlton, 682 F.2d 1050, 1052; Arias v. United States Parole Commission, 648 F.2d 196 (3d Cir. 1981); United States ex rel. Sanders v. Arnold, 535 F.2d 848, 850 (3d Cir. 1976); Soyka v. Aldredge, 481 F.2d 303 (3d Cir. 1973)). The Third Circuit has adhered to the exhaustion doctrine for several reasons: (1) judicial review may be facilitated by allowing the appropriate agency to develop a factual record and apply its expertise, (2) judicial time may be conserved because the agency might grant the relief sought, and (3) administrative autonomy requires that an agency be given an opportunity to correct its own errors. Bradshaw, 682 F.2d at 1052 (3d Cir. 1981) (quoting United States ex rel. Marrero v. Warden, Lewisburg Penitentiary, 483 F.2d 656, 659 (3d Cir. 1973). Only in a very limited number of circumstances have the courts declined to apply the exhaustion doctrine. Specifically, the exhaustion doctrine will not be applied if administrative exhaustion, "would be futile, if the actions of the agency clearly and unambiguously violate statutory or constitutional rights, or if the administrative procedure is clearly shown to be inadequate to prevent irreparable harm."Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988); see also Goldberg v. Beeler, 82 F. Supp.2d 302 (D.N.J. 1999) (district court has discretion to decide whether to excuse the failure to exhaust remedies and to reach the merits, or to require a petitioner to perfect the exhaustion of administrative remedies before proceeding in court).
After a review of the record, this Court finds that Petitioner has failed to exhaust his administrative remedies with respect to his claim that the DHO deprived him of his right to present a witness at his disciplinary hearing. For the reasons stated below, the Court finds that exhaustion is required and, accordingly, will dismiss this claim until the appropriate administrative agency is given the opportunity to grant or deny him relief. With respect to Petitioner's additional two claims, both of which have been properly exhausted, the Court finds that the merits of these claims are dependent upon the resolution of Petitioner's claim that the DHO deprived him of his right to present witnesses. Thus, the Court will dismiss Mr. Munroe's petition in its entirety but without prejudice to refiling once a factual record can be developed with regard to his witness claim.
1. Petitioner's claim that the DHO deprived him of his right to present a witness at the disciplinary hearing
Petitioner claims that the staff member appointed by the DHO to be his representative at the disciplinary hearing coerced him into waiving his right to present a witness and consequently deprived him of this right. (Pet. at 4.) Specifically, Petitioner contends that he requested to call as a witness Ms. Doreen Smith, his visitor on the day of the incident, but Mr. Tait, his staff representative, informed him that calling her "would be a waste of time" and suggested that Petitioner waive his right. (Id.) Petitioner alleges that he agreed to sign the waiver only because Mr. Tait intimidated him and caused him to believe that if he did not sign the waiver his safety would be at risk. (Id.)
According to the record and Petitioner's own admission, both the Regional Director and the General Counsel have not yet had an opportunity to hear this claim. (Pet. at 5.) While Petitioner broached the issue of coercion in his Regional Administrative Remedy Appeal, it was not presented as a separate claim. (Pet. at Reg'l Admin. Rem. Appeal.) Rather, on appeal, Petitioner alleged that the DHO's guilty finding could not have been based on the greater weight of the evidence because, inter alia, the testimony of Ms. Smith, which was evidence crucial to the determination of Petitioner's guilt or innocence, had not been heard by the DHO. As discussed above, Petitioner alleged that the reason why Ms. Smith's testimony was never given was due to the fact that Mr. Tait had coerced him into waiving his right to present Ms. Smith. (Id.) The Regional Director denied Petitioner relief, finding that the DHO's decision was based on the greater weight of the evidence. (Id.) The Regional Director found that there was sufficient evidence to satisfy the DHO's burden of proof based on the videotape recording of the incident and Petitioner's own admission. (Id.) Thus, in the Response to Petitioner's appeal, the Regional Director did not squarely address the issue of coercion or a possible due process violation on account of Mr. Tait's alleged coercion. (Id.)
As stated previously, the Court will apply the exhaustion doctrine in cases where it would not prove futile, and where the Court would benefit from the expertise of the administrative agency and the development of a factual record. In the case before us, it is clear that in order to achieve the most efficient resolution of Petitioner's coercion claim, the administrative agency must be given the opportunity to address the claim prior to this Court's review. Not only is it well-settled that administrative autonomy requires that an administrative agency be given the chance to correct its own errors, if one in fact has been made, but the administrative agency, being both extremely experienced and proficient in prison policy and procedure, is also the most capable body to address and resolve such errors. Thus, if Petitioner's claim does have merit, then the administrative agency is the appropriate body to address the error and grant Petitioner the relief he seeks. It is clear then that administrative autonomy precludes this Court from reaching the merits of Petitioner's coercion claim, and, accordingly, this Court will dismiss Petitioner's claim to the discretionary review of the proper administrative agencies.
Moreover, it is also clear that this Court cannot consider the merits of Petitioner's Due Process claims until it is determined administratively whether his claim of coercion has merit. This is because if Petitioner's coercion claim is heard on administrative review and determined to have merit, then he would likely be granted a new hearing on the issue of his violation of Bureau of Prison Code 205, attempting to engage in a sexual act. In the event that Petitioner is granted a new hearing due to coercion by Mr. Tait and ultimately found innocent of the disciplinary charges, then the administrative agency is also likely to grant him the relief he seeks in the present habeas corpus petition, rendering the claims in such petition moot. On the other hand, if Petitioner properly exhausts available administrative remedies and the coercion claim is found to be meritless, then this Court will have the benefit of a fully developed factual record concerning all three of Petitioner's claims. Clearly then, a full discussion of the validity of Petitioner's supposed waiver of his right to present witnesses is needed before this Court may decide Petitioner's other claims. Therefore, Petitioner must present his coercion claim to the proper administrative authorities before this Court reaches the merits of the sanctions imposed.
Accordingly, this petition is dismissed in its entirety without prejudice to refiling after Petitioner has properly presented his claims of witness deprivation and coercion to the proper administrative authorities. Until the record is fully developed the Court cannot be sure whether the outcome of the hearing below is reliable or whether the result might have been in favor of Petitioner, thus mooting the present petition.
CONCLUSION
For the reasons stated above, this Court dismisses Calvin Munroe's petition for habeas corpus relief pursuant to § 2241 without prejudice until such time as his administrative remedies are properly exhausted with respect to his coercion claim. The accompanying order is entered.
ORDER
THIS MATTER having come before the court on the application of petitioner, Calvin Munroe, for writ of habeas corpus pursuant to 28 U.S.C. § 2241, and the Court having considered the submissions of the parties, and for the reasons discussed in the accompanying opinion;
IT IS on this ___ day of July, 2000 hereby
ORDERED that petitioner's application for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE.