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Dailey v. Oliver

United States District Court, D. Colorado

October 21, 2014

MICHAEL DAILEY, Applicant,
v.
WARDEN OLIVER, Respondent.

ORDER DENYING APPLICATION FOR A WRIT OF HABEAS CORPUS

KATHLEEN M. TAFOYA, Magistrate Judge.

This matter comes before the Court on the Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 7), filed by Applicant Michael Dailey pro se. The parties have consented to disposition of this case by a United States Magistrate Judge. (ECF Nos. 29, 31).

The Court will construe the Amended Application liberally because Mr. Dailey is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). However, the Court does not act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons discussed below, the Amended Application will be denied and this action dismissed.

I. Background

Mr. Dailey is a federal prisoner incarcerated at the United States Penitentiary in Florence, Colorado. In the Amended Application, he challenges the constitutionality of two prison disciplinary proceedings that resulted in the forfeiture of vested good time credits.

A. Incident Report 2214975

On September 27, 2011, Mr. Dailey received Incident Report No. 2214975 for possession of narcotics (attempted) (offense code 113a).[1] (ECF No. 27-1, Declaration of Carl Miedich, at ¶ 5; see also id., attach. 2, at 11). The incident report stated, in pertinent part:

During an ongoing S.I.S. Investigation on September 26, 2011 at approximately 11:00 a.m., it determined on July 1, 2011, at approximately 12:29 p.m., inmates Michael Dailey, Reg. No. 06819-025, and inmate [blacked out name] reported to the Inmate Systems Management Mail Room and picked up certified mail. Inmate Dailey signed for the possession of books therefore retained ownership of the incoming books. Contraband was discovered inside the binder of the books. The Marijuana (THC) was wrapped inside of a plastic bag of the binders of the books. The T.H.C. was tested and weighed 8.8 grams.

(ECF No. 27-1, attach 2, at 14; see also id. at 19).

A hearing before a DHO was held on November 4, 2011. (ECF No. 27-1, Miedich Decl, at ¶ 6; see also id. attach. 2, at 11). Mr. Dailey declined a staff representative. (ECF No. 27-1, at 11). Mr. Dailey requested that Unit Secretary Weise be called as a witness, but the DHO determined that Weise's proffered testimony - that he called Mr. Dailey to the mail room to find out what type of mail he had - was irrelevant to the charged offense. ( Id. at 11, 12, 18). At the hearing, Mr. Dailey "claimed ownership of the books, but denied any knowledge of marijuana." ( Id. at 12).

On January 17, 2012, the DHO issued a written report finding that Mr. Dailey was guilty of attempted possession of narcotics and sanctioned him with, inter alia, 41 days of forfeited good time credits. (ECF No. 27-1, Miedich Decl., at ¶ 6; see also id., attach. 2, at 12).

Mr. Dailey filed an administrative appeal challenging the disciplinary proceeding. In the appeal, Mr. Dailey claimed that he was innocent of the charged offense and that he was not sanctioned in the presence of the DHO. (ECF No. 27-2, attach. 3, at 8-10). The Regional Director reviewed Mr. Dailey's appeal and found a "procedural error." ( Id. at 8). The incident report was returned to the DHO for reconsideration. ( Id. ). In a separate internal Memorandum to the Warden, the Regional Director explained that the DHO "did not introduce or consider the supporting documentation with the discipline packet. This documentation is necessary to uphold the charge, as it connects the inmate to the incident." ( Id. at 39). The Regional Director further instructed that "[t]he DHO must specifically explain why the greater weight of the evidence showed the inmate committed the prohibited act." ( Id. ).

The DHO held a rehearing on Incident Report No. 2214975 on April 6, 2012. (ECF No. 27-1, Miedich Decl., at ¶ 7; No. 27-2, attach. 3, at 1). Mr. Dailey did not request a staff representative or witnesses. (ECF No. 27-2, attach. 3, at 1). Mr. Dailey made the following statement in his own defense at the hearing: "I did sign for the books, but I was unaware of drugs in them. I told staff that I was unaware of getting books in. I did take the books into the facility." ( Id. ).

On August 14, 2012, the DHO issued a written report finding that Applicant had committed the charged offense. (ECF No. 27-1, Miedich Decl., at ¶ 9; No. 27-2, attach. 3, at 2). The DHO stated in the report that he ...


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