United States District Court, D. Colorado
Q. ILI-YAAS H. FARRAKHAN-MUHAMMAD,  Applicant,
JACK FOX, Complex Warden, Respondent.
ORDER DENYING APPLICATION FOR A WRIT OF HABEAS
A. BRIMMER UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Application for a Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Docket
No. 9] filed pro se by Applicant, Q. Ili-Yaas H.
Farrakhan-Muhammad on October 27, 2016. On December 23, 2016,
the Court issued an order, Docket No. 19, directing
Respondent to show cause why the Application should not be
granted. Respondent filed a Response to Order to Show Cause,
Docket No. 25, on January 31, 2017. On February 16, 2017,
Applicant filed a Traverse/Reply. Docket No. 27. Having
considered the same, the Court will deny the Application and
dismiss the action for the reasons discussed below.
is a federal prisoner in the custody of the Bureau of Prisons
(“BOP”) currently incarcerated at the United
States Penitentiary, Administrative Maximum, in Florence,
Colorado. On September 7, 2014, Applicant received an
incident report charging him with assault, in violation of
Code 224. Docket No. 25-3 at 8; Beicker-Gallegos Decl.,
Docket No. 25-1, ¶ 9. The incident was described as
On September 7th, 2014 at approximately 11:57 a.m.
I C/O M. Ross was feeding E-Unit upper B range. When we go to
I/M Farrakhan, Qili-Yass cell he was observed shaking a
bottle. C/O J. Hill felt was unsafe to open the cell door at
that time so we continued to feed the range. Upon returning
to I/M Farrakhan's cell he no longer appeared to have a
bottle. The cell door was cracked in order to feed I/M. When
the door was cracked I/M Farrakhan said ‘if you set
those trays in you know what time it is Ross.' I/M then
threw what appeared to be a unknown clear liquid at me,
striking me in the lower left hand and upper left shoulder. I
sustained no injuries. Operations Lt. was notified and no
incident report was referred to the Federal Bureau of
Investigation (“FBI”) for further investigation.
Docket No. 25-3 at 10-11; Beicker-Gallegos Decl.,
¶¶ 10-11. The FBI declined criminal prosecution and
returned the incident to the BOP for institutional
processing. Id. On September 13, 2014, Applicant was
advised of his rights regarding the disciplinary process and
given the opportunity to make a statement. Id. at
8-9; Beicker-Gallegos Decl., ¶ 12. Applicant denied the
charge and told the investigating officer that “I
didn't assault any officer. I didn't have any water
in my hand.” Id. Applicant received a copy of
the incident report the same day. Id.;
Beicker-Gallegos Decl., ¶ 12.
September 15, 2014, the Unit Disciplinary Committee
(“UDC”) conducted a hearing and referred the
charge against Applicant to a Discipline Hearing Officer
(“DHO”) for further hearing. Docket No 25-3 at 8;
Beicker-Gallegos Decl., ¶ 14. Applicant received a copy
of the Notice of Discipline Hearing and written notice of his
rights at the DHO hearing. Id. at 12-14;
Beicker-Gallegos Decl., ¶ 14. Applicant requested Mr.
Thomas as his staff representative and asked to call two
staff members as witnesses at the hearing. Id. at
13; Beicker-Gallegos, Decl., ¶ 16.
December 10, 2014, a DHO conducted Applicant's hearing on
the incident report. Docket No. 25-3 at 2; Beicker-Gallegos
Decl., ¶ 17. At the hearing, Applicant stated he
understood his rights and accepted staff representation by
Mr. Haywood because Mr. Thomas could not serve as
Applicant's staff representative “due to a shift
conflict” and Mr. Wacker was not available since he no
longer worked at the facility. Id. at 5, 25;
Beicker-Gallegos Decl., ¶¶ 16-18. Mr. Haywood
stated that he had spoken to an inmate “who indicated
[Applicant] did not throw anything on the staff, ” but
that he was unable to obtain a statement from two other
inmates whom Applicant had requested as witnesses because one
“did not want to make a statement” and the other
had been “transferred out of this institution.”
Id. at 2; Beicker Gallegos Decl., ¶ 18. Mr.
Haywood further stated that he “made efforts” to
review video of the incident as requested by Applicant, but
“due to the passage of time, video no longer
also submitted the following written statement on his behalf:
1. l/M Farrakhan-Muhammad dispute the description of the
incident on Sept. 7th. M. Ross. ADX-C.O. said that
he observed I/M Farrakhan-Muhammad shaking a bottle and J.
Hill, ADX-C.O., felt it was unsafe to open the cell door. 2.
The E04-range surveillance tape can show that the cell door
was open to placed foodtrays in sallyport due to I/M
Farrakhan-Muhammad being on a hunger strike. 3. The E04-range
surveillance tape can also show that the foodtrays was placed
outside of his cell after l/M Farrakhan-Muhammad threaten to
commit suicide with a bed sheet tied around his neck and a
bottle of Hyopocholothiazine pills, the bottle M. Ross,
ADX-C.O. observed seeing. 4. l/M Farrakhan-Muhammad disputes
the description of the incident on Sept. 7th that M. Ross,
ADX-C.O. stating that he was struck on the left hand and
shoulder with a unknown clear liquid. 5. The E04-range
surveillance tape can show that he placed the foodtrays in
the sallyport with his right hand and not with his left hand
as he claimed. 6. Why will M. Ross, ADX-C.O. force to put
foodtrays in the sallyport knowing that l/M
Farrakhan-Muhammad had a sheet around his neck and a bottle
of prescription medication in his hand threaten to commit
suicide if the foodtrays were to be placed in sallyport. 7.
M. Ross, ADX-C.O. and J. Hill, ADX-C.O. were trying to
provoke and encourage I/M Farrakhan-Muhammad to commit
suicide by placing foodtrays in sallyport and lied to
cover-up their ongoing staff misconduct and mistreatment
toward l/M Farrakhan-Muhammad by writing bogus incident
report to cover-up their abuses. 2: C.F.R. 541.4 Violations:
the untimeliness serving of the incident report without out a
memo delay violates the 24-hour serving of the written notice
in 2: C.F.R. 541.5, and procedural due process as set forth
in the Wolff protection. 2: C.F.R. 541.6(F)(1): I/M
Farrakhan-Muhammad request again to be examine by the
ADX-Psychology Services Department if he were competent at
the time of the Sept. 7th incident and if he
mentally competent to be seen and heard by the ADX-D.H.O. 2:
C.F.R. 541.8(F)(1): l/M Farrakhan-Muhammad request for
E04-range surveillance tape to be introduce as exculpatory
evidence and viewed by L. Thomas, ADX, L.T. requested staff
representative with S. Beicker-Gallegos, ADX-D.H.O. at the
DHO hearing. 2:C.F.R. 541(F)(2)(4) Staff witnesses: Mr.
Beynum, ADX-C.O., H. Boehm, ADX-Clinical Psychologist, F.
Davis, ADX-Clinical Psychologist, Mrs. Moody-ADX Clinical
Psychologist. Inmate witnesses: J. Pinson, J. Currence, I.
Harris, Jr. 28 C.F.R. 541(d). Staff Representative L. Thomas,
ADX-Lieutenant. Conclusion. For the forgoing reason above l/M
Farrakhan-Muhammad request that the ADX-D.H.O. totally
expunge of any reference to incident report #2626183 from his
chronological disciplinary record due to no reliable evidence
and insufficient evidence to support any finding that l/M
Farrakhan-Muhammad committed BOP-prohibited act Code #224.
Docket No. 25-3 at 3; Beicker-Gallegos Decl., ¶ 19.
written report, the DHO noted that, while Applicant requested
four staff members as witnesses, these individuals were not
called during the hearing because their testimony was
“irrelevant” since they were not present during
the incident on September 7, 2014. Docket No. 25-3 at 3;
Beicker-Gallegos Decl., ¶ 19. Applicant's request
for three inmate witnesses also was denied for security
reasons and the unavailability of one inmate who had been
transferred out of the facility. Id. at 3-4.
also noted that, although video footage of the incident had
not been preserved, Mr. Thomas had reviewed the video and
provided a statement indicating that he was unable to see
inside the sallyport of Applicant's cell and did not
witness any substance being thrown out of the sallyport.
Docket No. 25-3 at 6, 23. The DHO found that Mr. Thomas'
description of the events occurring on-camera was
“consistent with the events described by both staff
members” who had witnessed and reported the incident.
Id. at 6.
further determined that any delay in processing
Applicant's incident report was because of its referral
to the FBI and such delay did not hamper Applicant's
ability to prepare a defense. Docket No. 25-3 at 6. Lastly,
the DHO noted that Psychology Services staff had concluded
that Applicant was “competent and responsible for [his]
conclusion of the hearing, the DHO found, based upon the
greater weight of the evidence, Applicant was guilty of the
prohibited act of assault without serious injury (Code 224)
for throwing an unknown, clear liquid substance on prison
staff. Docket No. 25-3 at 6; Beicker-Gallegos Decl., ¶
20. Applicant was sanctioned with 27 days loss of good
conduct time, 30 days of disciplinary segregation to be
suspended pending 90 days of clear conduct, and 90 days loss
of commissary, visiting, and telephone privileges.
Id. at 6-7; Beicker-Gallegos Decl., ¶ 21.
Applicant received a copy of the DHO's written findings
and conclusions on January 30, 2015. Id. at 7;
Beicker-Gallegos Decl., ¶ 22.
October 27, 2016, Applicant filed the § 2241 Application
in this action. Based on an alleged deprivation of his due
process rights in the disciplinary process, he asserts the
following five claims:
(1) the DHO did not consider his “mental
condition” or “mental state” at the time of
the incident in violation of 28 C.F.R. 541.6;
(2) his staff representative was inept by “refusing to
seek a inmate witness statement” in violation of 28
(3) “the spoliation of the timely requested
surveillance videotape footage as exculpatory evidence”
was prejudicial in violation of 28 C.F.R. 541.8(f);
(4) the DHO was biased against him in violation of 28 C.F.R.
(5) there was insufficient evidence to support his
Docket No. 9 at 2-8. For relief, Applicant requests that his
disciplinary conviction and loss of good-conduct time
“be set aside.” Id. at 9.
counters in the Response that there is some evidence in the
record to support the DHO finding that Applicant was guilty
of assault without serious injury. Docket No. 25 at 5.
Respondent further contends that Applicant's
“mental state” was considered because he had been
evaluated and determined competent by a staff psychologist.
Id. Respondent also concludes that, “although
video during the incident was unavailable, an officer who
observed the video provided evidence that the footage did not
provide a view of Applicant's sallyport, where the food
tray was placed and liquid thrown.” Id.
Reply, Applicant “denies” the assertions in the
Response and argues that he was “not afforded the
protective regulatory rights” concerning a mental
health examination to determine competency in connection with
his disciplinary proceedings. Docket No. 27 at 1-2. He
further claims that his staff representative “refused
to provide him effective assistance in his defense; that the
“surveillance video footage would have supported his
defense”; that the DHO was biased and predisposed
toward a finding of guilt; and that “there was relevant
evidence in the disciplinary record that there were
insufficient evidence for any rational fact-finder to find
the pro se Applicant had the intent to attempt to violate
prohibited Act Code #224A due to a greater weight of the
evidence.” Id. at 2-3.