Lutz v. Hemingway

• Decision Date: 05 March 2007
• Docket Number: No. 03-10258.,03-10258.
• Citation: 476 F.Supp.2d 715
• Parties: Angelo Jenaro LUTZ, Petitioner, v. John HEMINGWAY, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

476 F.Supp.2d 715

Angelo Jenaro LUTZ, Petitioner, v. John HEMINGWAY, Respondent.

No. 03-10258.

United States District Court, E.D. Michigan, Southern Division.

March 5, 2007.

Angelo Lutz, Milan, MI, Pro se.

Patricia G. Gaedeke, U.S. Attorney's Office, Detroit, MI, for Respondent.

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

LAWSON, District Judge.

The petitioner, Angelo Jenaro Lutz, presently confined at the Federal Correctional Institution in Petersburg, Virginia, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The petitioner alleges the violation of his constitutional rights arising from a prison disciplinary hearing where he was punished for attempting to introduce contraband into the Federal Correctional Institution at Milan, Michigan. The respondent maintains that the petition should be denied for failure to present a claim cognizable on habeas review or, alternatively, for lack of merit. The Court agrees that the claims presented are not cognizable on habeas review and otherwise lack merit. The petition will therefore be denied.

I.

The petitioner was sentenced on December 11, 2001 in the United States District Court for the Eastern District of Pennsylvania to a prison sentence of one hundred eight months for various federal offenses, including racketeering conspiracy, extortion, and illegal sports bookmaking. On direct appeal, the petitioner's conviction on one of the extortion counts was vacated on sufficiency of the evidence grounds, and the case was remanded for re-sentencing because his sentence was enhanced improperly on the premise that he had been involved in the conspiracy from its inception. United States v. Merlino, 349 F.3d 144, 157-58 (3d Cir.2003). Although the Court is unable to locate a record of the proceedings on remand, the petitioner has since been given a projected release date of August 12, 2008 by the Bureau of Prisons (B.O.P.). Prior to being transferred to the Federal Correction Institution in Petersburg, Virginia, the petitioner was incarcerated at the Federal Correction Institution in Milan, Michigan (F.C.I., Milan), a low security facility. It was at that facility that the events underlying the present petition took place.

On January 17, 2003, Officer Paul Sneed, while monitoring the mail at F.C.I., Milan, intercepted and inspected a sealed letter that had been sent by the petitioner in the prison's mail to someone outside the prison. The petitioner sent the letter apparently because he wanted to obtain a videotape of the "Philadelphia Mummers String Band Parade," which the petitioner hoped to use in conjunction with his duties as the music instructor in the F.C.I., Milan Recreation Department. In the letter, the petitioner wrote that he had "worked a way to get a tape of the parade" into F.C.I., Milan and asked the letter's addressee, identified only as "Joe," to obtain two videotapes and send them with a solicitation letter to the petitioner's job supervisor at F.C.I., Milan. Resp. Brf., Ex. 2, Letter at 1. The petitioner advised Joe to write a letter and make it appear that he was trying to sell the tapes and to mention a price. The petitioner informed Joe: "They can't be donated; you have to make it look like you want to introduce the [undecipherable] to the B.O.P. music program." Ibid. Officer Sneed filed an incident report charging the petitioner with the attempted introduction of contraband, which is considered a code 331A (moderate category) offense, and unauthorized use of the mail, a code 410 (low moderate) category offense.

Lieutenant D. Tanel investigated the allegations in Officer Sneed's report and interviewed the petitioner, another inmate, and the petitioner's supervisor, Recreation Specialist M. Cote. Cote informed Lieutenant Tanel that he had told the petitioner that the prison could not accept donations and any tapes from the outside would not be allowed. Based upon his investigation, Lieutenant Tanel found that the charges were warranted and referred the incident to the Unit Discipline Committee (U.D.C.).

The U.D.C. held a disciplinary hearing at F.C.I., Milan on January 23, 2003. The hearing officer considered the letter that had been sent by the petitioner, Officer Sneed's incident report, and the statements from the petitioner and prison staff. The petitioner was found guilty as charged and was sanctioned with the loss of his job in the prison's recreational program, a thirty-day loss of commissary privileges, and a thirty day-loss of telephone privileges.

The petitioner appealed the U.D.C.'s decision to the prison warden, the B.O.P. Regional Office, and the Central Office for Inmate Appeals. All of his appeals have been denied. The petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:

I. B.O.P. violation of 28 C.F.R. § 540.14.

II. Pursuant to 28 C.F.R. § 541.4 and Policy Statement, 5270.07 Chapter 5, no attempt was made to use informal resolution.

III. Central Office Response to Administrative Remedy No. 290491-Al is without merit.

Petition at 5.

II.

The Court will address all of the petitioner's claims together because they are interrelated. They all raise challenges to the U.D.C.'s finding that the petitioner violated the B.O.P.'s regulations prohibiting the introduction of non-hazardous contraband into a federal prison and the unauthorized use of the mail. The petitioner also challenges the propriety of Officer Sneed's inspection of his letter in the first instance and briefly asserts that he has been discriminated against based on his affiliation with the mafia.

The present petition is subject to dismissal for several reasons. First, to the extent that the petitioner is challenging the conditions of his confinement, a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2241 is not the proper vehicle. Certainly, where a prisoner is challenging the very fact or duration of his physical imprisonment and the relief that he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a petition for writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). On the other hand, habeas corpus is not available to prisoners who are complaining only of mistreatment during their legal incarceration. Cook v. Hanberry, 592 F.2d 248, 249 (5th Cir. 1979). Complaints that involve only conditions of confinement "do not relate to the legality of the petitioner's confinement, nor do they relate to the legal sufficiency of the criminal court proceedings which resulted in the incarceration of the petitioner." Maddux v. Rose, 483 F.Supp. 661, 672 (E.D.Tenn.1980). A state inmate therefore should bring a claim challenging the conditions of confinement under 42 U.S.C. § 1983. Austin v. Bell, 927 F.Supp. 1058, 1066 (M.D.Tenn.1996). A federal inmate, like the petitioner, should bring such an action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

In the present case, any claim by the petitioner that prison officials have interfered or are interfering with his mail is a civil rights claim that is not cognizable on habeas review. See Thomas v. Keohane, 876 F.2d 895, 1989 WL 63334, *2 (6th Cir.1989) (citing Preiser, 411 U.S. at 484, 93 S.Ct. 1827); Pryor v. Martin, 2002 WL 31748915, *1 (E.D.Mich. Nov. 20, 2002). Likewise, an inmate cannot challenge the loss of non-custodial privileges by way of a habeas petition because the loss of such privileges has only a "speculative or incidental effect" on the length of a prisoner's sentence and is not "close to the core of habeas corpus." Homen v. Hasty, 229 F.Supp.2d 290, 295 (S.D.N.Y.2002) (holding not cognizable on habeas review a claim for loss of visitation, telephone, and commissary privileges). Therefore, the petitioner's loss of telephone and commissary privileges in his prison disciplinary proceeding cannot be challenged in a petition for writ of habeas corpus. Ibid. For the same reasons, the loss of his prison job is also a condition of confinement that cannot be challenged in a habeas corpus proceeding. See e.g. Mercer v. U.S. Medical Center for Federal Prisoners, 312 F.Supp. 1077, 1079 (W.D.Mo.1970) (claim that federal prisoner was denied an opportunity to earn money by working in prison industry or to participate in vocational training program did not entitle him to habeas relief).

Second, the petitioner has failed to show that the prison disciplinary hearing violated his constitutional rights. As an initial matter, it is unclear whether the petitioner has any right to due process in any prison disciplinary proceeding that results in sanctions less serious than the loss of good time credits or disciplinary segregation. In Wolff v. McDonnell, 418 U.S. 539, 572 n. 19, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court declined to state that the minimum due process procedures that it had outlined for the loss of good time credits in Wolff would also be required for the imposition of "lesser penalties such as the loss of privileges." See also Baxter v. Palmigiano, 425 U.S. 308, 323, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976) (accord). The Supreme Court has held subsequently that a disciplinary regulation does not implicate a protected liberty interest unless it "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Because the only sanctions that the petitioner received here were the loss of privileges, it is doubtful that he was entitled to any due process procedures with respect to the U.D.C. hearing. See Bazzetta v. McGinnis, 430 F.3d 795, 802-05 (6th Cir.2005).

But even if such due process procedural guarantees apply, they were satisfied in this case because there was...