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Pittman v. Fox

United States District Court, D. Colorado

April 16, 2018

DARNELL PITTMAN, SR., Plaintiff,
v.
JACK FOX, Warden, Defendant.

          ORDER

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.

         This matter is before the Court upon Applicant Darnell Pittman, Sr.'s Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (the “Application”). (Doc. # 1.) United States Magistrate Judge Gordon P. Gallagher issued an Order to Show Cause directing Respondent Jack Fox to show cause why the Application should not be granted on January 15, 2018. (Doc. # 20.) Respondent filed a Response to the Order to Show Cause on February 5, 2018.[1] (Doc. # 21.)

         This Court has carefully considered the Application, related briefing, the case file, and the applicable 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 Federal Correction Institution, Administrative Maximum Facility (“ADX”) in Florence, Colorado. (Doc. # 1 at 1.)

         On December 18, 2015, while incarcerated at the United States Penitentiary in Coleman, Florida, Applicant was issued Incident Report No. 2795717 (the “Incident Report”), in which Applicant was accused of violating Code 203 for “threatening another with bodily harm.” (Id. at 2); see (Doc. # 21-3 at 2.) The Incident Report alleged that earlier that same day, Applicant had refused to release his hand restraints and had been verbally abusive towards penitentiary staff.[2] (Doc. # 21 at 2.) When the Incident Report was delivered, Applicant was advised of his rights and given the opportunity to make a statement to the investigating officer. (Doc. # 21-3 at 3.) Applicant responded, “I did not threaten that man, I said he was big and I give him what he is looking for.” (Id.) Applicant did not provide additional information and did not request any witnesses. (Id.) The matter was referred to the Unit Disciplinary Committee (“UDC”) for further processing. (Id.)

         Applicant was brought before the UDC on December 21, 2015, and was given a copy of the Notice of Disciplinary Hearing before the Disciplinary Hearing Officer (“DHO”) and a written notice of his rights at the disciplinary hearing. (Doc. # 21 at 2.) Applicant requested that a staff representative and three witnesses be present at the hearing. (Id.); see (Doc. # 1 at 2-3.)

         On January 13, 2016, DHO Aaron Rich conducted the disciplinary hearing. (Doc. # 21 at 2-3.) DHO Rich 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 with him, including his right to call witnesses and his right to request a staff representative. Applicant confirmed he understood his rights and that he had initially requested both witnesses and a staff representative.” (Doc. # 21-1 at 4); see also (Doc. # 21-3 at 6-7.) DHO Rich recounted that “during this portion of the DHO hearing, Applicant elected to waive his requested staff representative as well as his witnesses.” (Doc. # 21-1 at 4.) At Applicant's request and on his behalf, DHO Rich wrote at the bottom of the Notice of Disciplinary Hearing, “I request to waive the staff rep and witness above.” (Id.) Applicant signed the revised form. (Id.); (Doc. # 21-3 at 9.) DHO Rich testified that Applicant stated during the hearing that the reporting officer was “lying.” (Doc. # 21-3 at 7.) DHO Rich concluded that Applicant had violated Code 203 by threatening another with bodily harm. (Id.) He imposed the following sanctions on Applicant for his violation of Code 203: the loss of 27 days of good conduct time, and 60 days of disciplinary segregation. (Doc. # 21-1 at 5.)

         In his Application, Applicant contends that he was not present for any disciplinary hearing before DHO Rich on January 13, 2016. (Doc. # 1 at 3.) Applicant alleges that “DHO Rich did not notify and inform [Applicant] as to the justified rationale behind [him] not being able to attend and participate in the said hearing.” (Id.) He further alleges that DHO Rick prepared and presented a report rife with false assertions “with the clear intent to impede, obstruct, and influence the investigation and proper administration of the matter before the appellant review board. (Id.)

         In response to Applicant's allegation, DHO Rich averred that Applicant's “statements are not truthful and are an attempt to question his presence, participation, statement, and waiver. Plaintiff was present not only at the ‘onset' of the DHO hearing, but for the entire DHO hearing.” (Id.)

         II. LEGAL STANDARD

         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 Section 2241 “are used to attack the execution of a sentence, ” whereas petitions made pursuant to 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 may be 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 Fed.Appx. 783, 784 (10th Cir. 2009) (finding no error where ...


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