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Crosby v. Fox

United States District Court, D. Colorado

December 15, 2017

GREGORY D. CROSBY, also known as Gregory D. Cosby, Petitioner,
JACK FOX, Warden, Respondent.



         This matter is before the Court on Applicant's Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (the “Application”). [#8] On April 14, 2017, the Court issued an Order to Show Cause directing Respondent Jack Fox to show cause why the Application should not be granted. [#15] On June 5, 2017, Respondent filed a Response to the Order to Show Cause [#31], and Applicant filed a Reply in Opposition to Government's Response to Show Cause on August 4, 2017 [#39]. The parties have consented to this Court's jurisdiction over this case for all purposes, including the entry of judgment. [#24-26] This Court has carefully considered the Application and related briefing, the entire case file and the applicable case law, and has determined that a hearing would not materially assist in the Court's disposition of the Application. For the following reasons, the Court DENIES the Application.

         I. BACKGROUND

         Applicant is a federal prisoner currently incarcerated at the United States Penitentiary, Administrative Maximum Facility (“ADX”) in Florence, Colorado. [#31-1 at ¶ 6] On May 20, 2016, while incarcerated at the United States Penitentiary in Lewisburg, Pennsylvania, Applicant was issued a Prison Misconduct Report, in which Applicant was accused of violating Code 298 (interfering with a staff member in the performance of duties), [1] Code 307 (refusing to obey an order of a staff member), [2] and Code 312 (insolence)[3] based upon Applicant's alleged failure to return a food tray when ordered to do so, and for allegedly responding to the order by stating: “Fuck you, you white ass country cracker you will get them back when I'm good and ready.” [#8 at 6; #31-3 at 6-7] On May 24, 2016, Applicant was brought before the Unit Disciplinary Committee and allegedly provided a Notice of Discipline Hearing Before the DHO (Discipline Hearing Officer) (the “Notice”) and written notice of Inmate Rights at Discipline Hearing. [#31-1 at ¶ 10; #31-3 at 8, 9] Both documents provide notification of the rights that would be afforded at the disciplinary hearing, including “[t]he right to have a full-time member of the staff . . . represent [him] before the Discipline Hearing Officer.” [#31-3 at 9] According to Respondents, Applicant did not request to have a staff representative or witnesses at this hearing. [#31-1 at ¶ 10] The Notice indicates that Applicant expressed that he did not wish to have a staff representative or to call witnesses at the DHO hearing. [#31-3 at 8] Although the Notice includes a box for the offender's signature, the completed Notice indicates that Applicant refused to sign it. [Id.] Similarly, the Inmate Rights at Discipline Hearing form includes a box for the offender's signature, but the completed form here indicates that Applicant refused to sign it. [Id. at 9]

         On June 6, 2016, DHO Angelo Jordan conducted a DHO hearing. [#8 at 7; #31-1 at ¶ 11] The DHO submitted an affidavit in support of Respondent's Response to the Order to Show Cause testifying that, during the hearing he “reviewed Applicant's due process rights, including his right to call witnesses and request a staff representative” and that Applicant confirmed that he understood his rights and was ready to proceed with the hearing. [#31-1 at ¶ 11] The DHO further testifies that Applicant did not request a staff representative or witnesses at the hearing. [Id.] Applicant, however, contends that he requested a staff representative at the DHO hearing, but his request was denied by the DHO. [#8 at 7]

         According to the DHO Officer, during the hearing, Applicant stated that the incident report was inaccurate and told the DHO that the reporting officer had provoked him. [#31-1 at ¶ 12] The DHO further claims that Applicant told him that “cracker” was not a racist statement and that the DHO was wasting his time. [Id.] Applicant also submitted a three-page written statement to be considered as documentary evidence. [Id. at ¶ 13; #31-3 at 10-12] Within the written statement, Applicant states that he “believe[s] the only charge he could be possibl[y] guilty of [is] refusing an order, cause the tray was not return[ed] back to the retrieving officer.” [#31-3 at 11] The statement also argues that Applicant's alleged use of the word cracker “does not amount to insolence, ” because “cracker” is “define[d] in Webster [a]s a thin mixt[ure] of flour and water a substance you eat. Furthermore it is also define[d] as a native from Florida or Georgia.” [Id. at 12]

         Following the hearing, the DHO dismissed the charge of interfering with staff and found Applicant guilty of insolence and refusing an order. [#31-1 at ¶ 14; #31-3 at 2-5] The DHO imposed the following sanctions separately for each of the two violations: 14 days loss of good conduct time, 15 days disciplinary segregation, and 90 days loss of commissary, telephone and visiting privileges. [#31-3 at 5]

         Following unsuccessful administrative appeals of the DHO's decision [#8 at 8; #14], on December 13, 2016, Applicant filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 in the District Court for the Middle District of Pennsylvania. [#1-1] Applicant was transferred from USP Lewisburg in the Middle District of Pennsylvania to ADX Florence in the District of Colorado on or about October 31, 2016 [#1-8 at 1 n.1], and the case was subsequently transferred to the District of Colorado on February 22, 2017. [#1 at 1] Applicant filed the Application on March 6, 2017, alleging that: (1) he was denied a staff representative; (2) the charges are not supported by evidence insofar as the DHO failed to consider exculpatory evidence; and (3) the DHO acted in an unprofessional manner. [#8 at 7]

         On April 14, 2017, United States Magistrate Judge Gordon P. Gallagher issued an Order to Show Cause, ordering Respondent to show cause why the Application should not be granted. [#15 at 2] Respondents filed a response to the Order to Show Cause on June 5, 2017, arguing that the Amended Application should be denied, because Applicant was afforded all required due process and the disciplinary decision is supported by the evidence. [#31] Applicant filed a reply on August 4, 2017, alleging that there is insufficient evidence to support the charge of insolence because the DHO did not consider the dictionary definition of “cracker” as exculpatory evidence.[4] [#39]


         A. 28 U.S.C. § 2241

         “[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and [ ] the traditional function of the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Petitions for habeas corpus made pursuant to 28 U.S.C. § 2241 “are used to attack the execution of a sentence, ” whereas petitions made pursuant to 28 U.S.C. sections 2254 and 2255 “are used to collaterally attack the validity of a conviction and sentence.” McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997). Habeas corpus relief pursuant to Section 2241 is warranted if the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). “A habeas petition under 28 U.S.C. § 2241, brought in the district where the inmate is confined, is a proper vehicle for challenging the loss of good-time credits.” Bornman v. Berkebile, No. 14-CV-01997-MJW, 2014 WL 5396169, at *2 (D. Colo. Oct. 23, 2014) (citing Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 811 (10th Cir.2007)); see also McIntosh, 115 F.3d at 811-12.

         A habeas petitioner “is entitled to receive an evidentiary hearing so long as his allegations, if true and if not contravened by the existing factual record, would entitle him to habeas relief.” Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir. 1998); see also United States v. Lopez, 100 F.3d 113, 119 (10th Cir. 1996) (“In response to a [28 U.S.C.] § 2255 motion, the district court must hold an evidentiary hearing on the prisoner's claims unless the motion and files and records in the case conclusively show that the prisoner is entitled to no relief.” (quotations omitted)); Wilson v. Oklahoma, 335 F. App'x 783, 784 (10th Cir. 2009) (finding no error where district court denied applicant evidentiary hearing on 28 U.S.C. § 2241 petition where “nothing in the record [ ] indicate[d] [the applicant] is entitled to any relief”).

         B. Due Process for ...

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