United States District Court, D. Colorado
ORDER DENYING APPLICATION FOR A WRIT OF HABEAS CORPUS
R. BROOKE JACKSON UNITED STATES DISTRICT JUDGE.
This matter comes before the Court on the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Docket No. 8), filed, pro se, by Applicant, Gerald Critten. On May 23, 2014, the Court issued an Order to Show Cause to Respondents as to why the Application should not be granted. (Docket No. 22). Respondents filed a Response to Order to Show Cause (Docket No. 23) and Applicant filed a Reply (Docket No. 27). Having considered the same, the Court will dismiss this action for the reasons discussed below.
In May 2011, Applicant was issued an incident report for fighting (Code 201)with his cell mate, and was found guilty of the charge in a prison disciplinary proceeding. (Docket No. 8 at 6). The Disciplinary Hearing Officer (DHO) did not make a finding, nor was any evidence presented, that a weapon was used in the altercation. (Id. at 7).
On December 19, 2011, Applicant was issued an incident report for Possession of a Weapon (Code 104) based on the same incident for which he received the disciplinary conviction for fighting. (Docket No. 23-1 at 8). The report, which was issued by Special Investigative Services (SIS) Lieutenant K. Lopez, stated:
On December 19, 2011, at approximately 1:00 p.m., I reviewed SIS Case Number VIP-11109, involving inmates Critten, Gerald, Reg. No. 08062-068, and Washington, Timothy, Reg. No. 05148-095. This case occurred on May 1, 2011 at approximately 6:35 p.m., and involved an inmate on inmate assault charging inmate Critten with an assault on inmate Washington. Washington sustained life threatening injuries and was escorted to an outside hospital for treatment. Specifically, Washington received multiple stab wounds throughout the left side of his head, shoulder and forearm. Inmate Critten was charged with the assault, however, he was not charged with possession of a weapon. According to the SIS investigation dated September 1, 2011, Critten admitted to retrieving a weapon during the assault and utilizing it during the incident. This case was referred to the FBI and declined on August 20, 2011.
Following Applicant’s appearance before the Unit Disciplinary Committee on December 20, 2011, the disciplinary charge was referred to the DHO due to the severity of the offense. (Id.).
On December 21, 2011, Applicant received a notice of Inmate Rights at Discipline Hearing, which advised him of his rights to receive a written copy of the charges against him at least 24 hours before the disciplinary hearing; to be assigned a staff representative for the hearing; to call witnesses and to present documentary evidence; and, to be advised of the DHO’s decision. (ECF No. 23-1 at 11).
On January 25, 2012, Applicant appeared before the DHO at a disciplinary hearing. (ECF No. 23-1 at 13). Applicant confirmed that he had received a copy of the incident report, did not want to call any witnesses, and had no documentary evidence to submit. (Id. at 15). Applicant’s staff representative told the DHO that the other inmate involved in the altercation did not receive an incident report for possession of a weapon. (Id.). Applicant also questioned the time frame concerning completion of the incident report because the incident had occurred on May 1, 2011. (Id.). The DHO explained that, as indicated in the incident report, staff were not aware that Applicant used a weapon during the incident until approximately 4 months later. (Id.). The DHO concluded that Applicant was guilty of possession of a weapon based on the following evidence: the reporting officer’s statement; the chain of custody log, which indicated that a six-inch metal weapon that was sharpened to a point was recovered at the scene of the physical altercation; a staff memorandum summarizing statements made by Applicant and the victim during the SIS investigation; and, photographs of the victim’s injuries which showed numerous stab wounds to his face and arm. (Id.). Applicant was sanctioned with the disallowance of 41 days of good conduct time credits. (ECF No. 23-1 at 14-15).
A copy of the DHO Report was provided to Applicant on February 9, 2012. (Id. at 16).
Following his exhaustion of administrative remedies, Applicant filed a § 2241 Application in which he asserts four claims: (1) his due process rights were violated because the December 2011 disciplinary conviction for possession of a weapon punished him for the same May 2011 conduct that resulted in his disciplinary conviction for fighting; (2) the December 2011 Incident Report was untimely and a violation of his due process rights and Administrative Rules 541 (28 C.F.R. § 541); (3) the DHO conviction violated his due process rights because there was insufficient evidence that Applicant possessed a weapon in the May 1, 2011 fight; and, (4) Respondents’ refusal to expunge his disciplinary conviction for possession of a weapon violated his Eighth Amendment right to be free from cruel and unusual punishment, as well as BOP administrative rules.
II. Legal Standards
A. § 2241 ...