Wallace v. Nash

• Decision Date: 14 November 2002
• Docket Number: Docket No. 01-2402.
• Citation: 311 F.3d 140
• Parties: Glenn WALLACE, Petitioner-Appellant, v. John NASH, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

311 F.3d 140

Glenn WALLACE, Petitioner-Appellant, v. John NASH, Warden, Respondent-Appellee.

Docket No. 01-2402.

United States Court of Appeals, Second Circuit.

Submitted: June 3, 2002.

Decided: November 14, 2002.

GLENN WALLACE, Ray Brook, NY, Petitioner-Appellant pro se.

JOSEPH A. PAVONE, United States Attorney, Northern District of New York, Syracuse, NY (Charles E. Roberts, Elizabeth S. Riker, Assistant United States Attorneys, Syracuse, NY, of counsel), for Respondent-Appellee.

Before: KEARSE and McLAUGHLIN, Circuit Judges, and HAIGHT, District Judge.^*

KEARSE, Circuit Judge.

Petitioner Glenn Wallace, a federal prisoner, appeals from a final judgment of the United States District Court for the Northern District of New York, David N. Hurd, Judge, dismissing his petition under 28 U.S.C. § 2241 for a writ of habeas corpus on the ground that, in a prison disciplinary proceeding, he was improperly convicted of "[p]ossession ... of a weapon" in violation of § 104 of the United States Bureau of Prisons ("BOP") Prohibited Acts Code ("PAC" or "Code"), 28 C.F.R. § 541.13 Table 3, based on his striking another inmate with a pool cue. The district court granted the government's motion to dismiss the petition for failure to state a claim on which relief can be granted, ruling that a "weapon" includes anything used to injure or threaten a person. On appeal, Wallace contends principally that a conviction for "possession" of a weapon may not properly be predicated on the injurious or threatening use of an object that is not considered a weapon until it is so used. For the reasons that follow, we agree, and we vacate the dismissal of the petition and remand for further proceedings.

I. BACKGROUND

The pertinent events, according to the record of the disciplinary proceedings and the allegations of Wallace's petition, were as follows. On August 1, 1999, Wallace, an inmate at a federal correctional institution, commenced a game of pool, using a pool cue given to him by a prison guard. When another inmate, Bernardo Bravo, persisted in interfering with Wallace's game, Wallace struck Bravo on the cheek with the pool cue.

As a result of that incident, prison disciplinary proceedings were commenced against Wallace on the charge that he violated PAC § 101, which prohibits "[a]ssaulting any person ... when serious physical injury has been attempted or carried out by an inmate," 28 C.F.R. § 541.13 Table 3. At the disciplinary hearing, the hearing officer added a charge (as to which Wallace waived his right to 24-hours' notice) that Wallace had violated PAC § 104, which prohibits "[p]ossession ... of a ... weapon." 28 C.F.R. § 541.13 Table 3. Both PAC § 101 and PAC § 104 define offenses that are among those categorized as of the "Greatest" seriousness in the Prohibited Acts Code and hence warrant the most severe penalties. See 28 C.F.R. § 541.13(a) & id. Table 3.

Following the hearing, the hearing officer declined to find Wallace guilty of violating PAC § 101, the assault provision that focuses on "serious" physical injury, and instead found him guilty of violating PAC § 224, which prohibits "[a]ssaulting any person ... when a less serious physical injury or contact has been attempted or carried out," 28 C.F.R. § 541.13 Table 3. A PAC § 224 offense is in the "High," not the "Greatest," category of gravity, and carries a less severe penalty than a § 101 offense. In addition, the hearing officer found Wallace guilty of possession of a weapon in violation of PAC § 104. As punishment for the latter offense, the hearing officer ordered, inter alia, that Wallace be disallowed 40 days of good-conduct credit.

Wallace appealed to the BOP Regional Director, contending, to the extent pertinent here, that the PAC § 104 possession charge was improper because a pool cue, although it can be used as a weapon, is not, in and of itself, a weapon. The Regional Director rejected this contention, stating that "[a]lthough a pool stick is not a weapon per se, it may be considered as one if wielded to inflict an injury to another." Wallace appealed that decision to the Office of the General Counsel, which rejected his challenge to the possession charge, stating that "[w]hile a pool cue is not normally considered to be a weapon, in this case you clearly used it as such (striking the victim in the head), making the charge highly appropriate."

Having exhausted his administrative remedies, Wallace filed the present habeas petition, pursuing, inter alia, his contention that a pool cue should not be considered a weapon within the meaning of PAC § 104. He requested the expungement of his PAC § 104 conviction and the restoration of his good-time credits. The government moved to dismiss for failure to state a claim on which relief can be granted, arguing that a pool cue may be considered a weapon within the meaning of § 104 if used as a weapon. The district court, adopting the report and recommendation of the magistrate judge to whom the matter was referred, granted the motion to dismiss. As to Wallace's challenge to the possession conviction, the court stated:

Black's Law Dictionary defines a weapon as "[a]n instrument of offensive or defensive combat, or anything used, or designed to be used, in destroying, defeating, threatening, or injuring a person." Black's Law Dictionary (6th Ed.1990).

It is apparent that at the time Wallace was observed attacking Bravo, he was using the pool cue as "an instrument of offensive combat." Since the pool cue was not being used for any other purpose at this time, he was properly found guilty of possession of a weapon.

Order and Report-Recommendation of Magistrate Judge Gary L. Sharpe dated March 13, 2001, at 7, adopted by the Decision and Order of Judge Hurd dated April 13, 2001.

This appeal followed. Although Wallace's habeas petition also asserted a claim that he had been denied procedural due process in the scheduling of his disciplinary hearing, that claim has not been pursued on this appeal.

II. DISCUSSION

On appeal, Wallace principally pursues his contention that a charge under PAC § 104 is appropriate only "if the very possession of th[e] object would constitute a violation of that regulation." (Wallace brief on appeal at 5.) The government, analogizing to New York law, argues chiefly that any object may properly be deemed a weapon within the meaning of PAC § 104 by reason of the circumstances in which it is used. We find merit in Wallace's contention.

For a prison inmate, the loss of good-time credits "is unquestionably a matter of considerable importance," for "[i]t can ... extend the maximum term to be served...." Wolff v. McDonnell, 418 U.S. 539, 561, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). An inmate therefore has a fundamental right not to be deprived of good-time credits as punishment for conduct that had not been prohibited. See, e.g., Coffman v. Trickey, 884 F.2d 1057, 1060 (8th Cir.1989) ("district court should have granted [inmate] a directed verdict on his claim [under 42 U.S.C. § 1983] that he was deprived of liberty without due process of law when [prison superintendent] punished him for conduct that was not proscribed"). In fashioning regulations for the conduct of inmates in federal penal institutions, the Attorney General of the United States has promulgated PAC, a code of conduct that is set forth in the Code of Federal Regulations, see 28 C.F.R. § 541.

PAC § 541.13(a) creates "four categories of prohibited acts-Greatest, High, Moderate, and Low Moderate"; it identifies and classifies particular conduct, see, e.g., id. § 541.13 Table 3, and specifies the authorized sanctions for each category of conduct, see id. § 541.13 Tables 3, 5, 6. An inmate found to have committed a prohibited act may be punished by, inter alia, the loss of some or all of his accrued good-time credits, including both statutory credits and good-conduct credits, see 28 C.F.R. § 541.13 Table 6, n. 1. For a "Greatest Offense Category" offense (PAC §§ 100-199) the inmate may be punished by the forfeiture of up to 100% of his good-time credits. See 28 C.F.R. § 541.13 Table 6. Forfeiture of good-time credits for a "High Offense Category" offense (PAC §§ 200-299) may not exceed 50% of such credits; forfeiture for a "Moderate Offense Category" offense (PAC §§ 300-399) may not exceed 25% of such credits; and forfeiture for a "Low Moderate Offense Category" offense (PAC §§ 400-499) may not exceed 12.5% of such credits (or 25% for repeat offenders). See id. & Table 3.

PAC § 104, at issue here, prohibits the "[p]ossession, manufacture, or introduction of a gun, firearm, weapon, sharpened instrument, knife, dangerous chemical, explosive or any ammunition." 28 C.F.R. § 541.13 Table 3. On its face, this section does not appear to encompass the possession of a pool cue. As recognized at both stages of the administrative review of the hearing officer's decision in Wallace's case, a pool cue is not inherently a weapon. In contrast, all but two of the objects specified in PAC § 104 are intrinsically weapons: guns, knives, explosives, and ammunition. And in listing the two items that would not be considered weapons per se, that section attaches qualifiers that make clear that the prohibition is limited to items that have inherent potential for use as implements of aggression. Thus, § 104 prohibits the possession not simply of "instrument[s]," but of "sharpened instrument[s] (emphasis added)," and not simply of "chemical[s]," but of "dangerous chemical[s]" (emphasis added). Thus, with those qualifying adjectives, every object or substance specified in § 104 is inherently dangerous. The term "weapon" is nowhere defined in the Code, but the inclusion of that word in a list in which every specified item is inherently dangerous leads us to infer that the drafters intended the word "weapon" similarly to mean objects that may be considered weapons without regard to their use. Items such as swords, blackjacks, and brass knuckles come to...