Weakley v. Shartle
| Decision Date | 15 September 2017 |
| Docket Number | No. CV-14-02230-TUC- BGM,CV-14-02230-TUC- BGM |
| Parties | Paul Raymond Weakley, Petitioner, v. J. T. Shartle, Warden, Respondent. |
| Court | U.S. District Court — District of Arizona |
Currently pending before the Court is Petitioner Paul Raymond Weakley's pro se Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody ("Petition") (Doc. 1). Respondent has filed his Return and Answer to Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus and Motion to Dismiss Petition ("Response") (Doc. 12). Petitioner filed his Response to Defendant's Motion to Dismiss (Doc. 14).
As an initial matter, Petitioner named Louis Winn, Warden of the United States Penitentiary-Tucson ("USP-Tucson") as the Respondent. See Amended Petition (Doc. 10). The Court takes judicial notice, however, that Louis Winn is no longer warden of USP-Tucson. As such, the Court will substitute the new Warden of USP-Tucson, J. T. Shartle, as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.
Petitioner is currently incarcerated at the United States Penitentiary ("USP") in Tucson, Arizona. See Fed. Bureau of Prisons ("BOP") Inmate Locater, https://www.bop.gov/inmateloc/ (last visited September 5, 2017). Petitioner is serving a one hundred twenty (120) month sentence from the Middle District of Pennsylvania for being a Felon in Possession of Firearms in violation of 18 U.S.C. §922(g)(1) and a concurrent life sentence for Conspiracy Relating to Racketeer Influenced and Corrupt Organizations in violation of 18 U.S.C. § 1962(d). See Answer (Doc. 12), Huband Decl. (Exh. "A"), United States District Court ("USDC") M.D. Pa., Case No. 3:CR-04-161, Judgment in a Criminal Case (Attach. "2") & USDC M.D. Pa., Case No. 3:CR-08-038, Judgment in a Criminal Case (Attach. "4"). In light of Petitioner's life sentence, he has no projected release date. See Answer (Doc. 12), Huband Decl. ("Exh. "A"), Public Information Inmate Data (Attach. "1").
Petitioner challenges a disciplinary conviction that resulted in his loss of good time credits. Petitioner alleges twenty-two (22) grounds for relief as follows: (1) the incident report was rewritten, and as such was not reviewed with him within twenty-four (24) hours after staff became aware of the incident, in violation of Petitioner's due process rights. Additionally, there is no policy or statute which authorizes a "rewrite"; (2) the rewritten incident report was reviewed with Petitioner allegedly nine (9) days late, in violation of his due process rights; (3) the Bureau of Prisons ("BOP") allegedly violated its own policy by failing to notify Petitioner "immediately" regarding a delay in his Unit Discipline Committee ("UDC") hearing, in violation of his due process rights; (4) Petitioner's UDC hearing was allegedly held thirty-five (35) days late, in violation of his due process rights; (5) Petitioner's staff representative informed him, at the time of the Discipline Hearing Officer ("DHO") hearing, that the video Petitioner requested was not available, as did DHO Petricka. Petitioner alleges that this denial of his right to present evidence in his defense, violated his due process rights; (6) after the denial of Petitioner's request for the video evidence, he complained to DHO Petricka that his staff representative was ineffective, and requested a new representative. This request was denied, and Petitioner alleges that it violated his due process rights; (7) Petitioner was allegedly not allowed to present the evidence he sought to introduce, in violation of his due process rights; (8) surveillance video is recorded over every thirty (30) days, and due to the delays in the disciplinary process Petitioner did not go before the DHO prior to the video being destroyed, in violation of his to process right; (9) Petitioner requested at the DHO hearing to review, or have his staff representative review, the "investigating officer's report." DHO Petricka denied this request, allegedly in violation of Petitioner's due process rights; (10) the Alco-Sensor was used to analyze the suspected liquid, which Petitioner asserts is only a breathalyzer, and its use in this case violated his due process rights; (11) DHO Petricka allegedly spoke with the special investigations section, and conducted her own investigation. Allegedly Petitioner and his staff representative were not allowed to review this evidence, thereby violating his due process rights; (12) because statute and policy for bid that DHO from acting as an "investigator," which DHO Petricka allegedly did, Petitioner alleges his due process rights were violated; (13) DHO Petricka did not properly consider Petitioner's arguments regarding accessibility of the closet and his proclaimed innocence, depriving him of a fair and impartial hearing; (14) Petitioner's cellmate was given an identical incident report, but found "not guilty," demonstrating that Petitioner did not receive a "fair and impartial" hearing; (15) Petitioner filed a BP-10 regarding the DHO's alleged refusal to issue a report, but allegedly did not receive a receipt or timely response, in violation of his due process rights; (16) Petitioner filed a second BP-10 and alleges that the regional office sent a backdated response, in violation of his due process rights; (17) because the regional office did not respond to Petitioner's allegedly properly filed BP-10, DHO appeal, his due process rights were violated; (18) also because the regional office did not timely respond, Petitioner asserts that his BP-11 was denied in violation of his due process rights; (19) because D.C. allegedly did not timely respond to Petitioner's BP-11 DHO appeal, Petitioner alleges a due process violation; (20) because the Central Office did not respond to Petitioner's BP-11 DHO appeal, petitioner alleges a due process violation; (21) because both the Western Region and Central Office administrative remedy coordinators failed to respond to Petitioner's appeals, his due process rights were violated; and (22) the BOP is unlawfully collecting restitution from Petitioner via the Inmate Financial Responsibility Program ("IFRP"). See Petition (Doc. 1). Petitioner seeks an order directing the BOP to stop collecting IFRP payments from Petitioner, change his IFRP status from "refused" to "exempt," to expunge Incident Report No. 2349546, and to remove all associated sanctions. Petition (Doc. 1) at 9.
On September 10, 2012, at approximately 10:30 a.m., Senior Officer ("SO") Hart was contacted by Special Investigative Support ("SIS") "to check the pipe chase areas around cells 113 to 119." Response (Doc. 12), Huband Decl. (Exh. "A"), Incident Report No. 2349546 (Attach. "6") at 6; Petition (Doc. 1) Incident Report No. 2349546 9/12/2012 (Exh. "2"). SO Hart reported that he "tried to open pipe chase door 158-G, located to the left of cell 114[;] [t]he pipe chase lock was blocked preventing the key from fully entering the lock." Response (Doc. 12), Exh. "A," Attach. "6" at 6; see also Petition (Doc. 1), Exh. "2." SO Hart "secured cell 114 in order to secure the evidence if contraband was found in the pipe[,] [and] . . . called the lock shop to have them come and open the lock on the pipe chase door." Response (Doc. 12), Exh. "A," Attach. "6" at 6; see also Petition (Doc. 1), Exh. "2." Petitioner and his cellmate were identified as the occupants of cell 114. Response (Doc. 12), Exh. "A," Attach. "6" at 6; see also Petition (Doc. 1), Exh. "2." SO Hart reported "approximately 25 gallons of Prison Made Intoxicants in that pipe chase." Response (Doc. 12), Exh. "A," Attach. "6" at 6; see also Petition (Doc. 1), Exh. "2." SO Hart further reported "[t]he bags of intoxicants were tied to the hole protruding from the flush button located in cell 114." Response (Doc. 12), Exh. "A," Attach. "6" at 6; see also Petition (Doc. 1), Exh. "2." SO Hart described the flush button plate as "bent and worn" and "[t]he screws holding the plate on were easy to unscrew and were stripped out." Response (Doc. 12), Exh. "A," Attach. "6" at 6; see also Petition (Doc. 1), Exh. "2." SO Hart stated "[i]t was apparent the bags of intoxicants were put in there from the flush button in cell 114." Response (Doc. 12), Exh. "A," Attach. "6" at 6; see also Petition (Doc. 1), Exh. "2." "Prison made intoxicants were tested with ALCO Sensor #3 and tested over .400." Response (Doc. 12), Exh. "A," Attach. "6" at 6; see also Petition (Doc. 1), Exh. "2." SO Hart wrote an incident report detailing the discovery of intoxicants and charging Petitioner with a violation of Code 113, Possession of any narcotics, marijuana, drugs, alcohol, intoxicants, or related paraphernalia, not prescribed for the individual by medical staff. Response (Doc. 12), Exh. "A," Attach. "6" at 6; see also Petition (Doc. 1), Exh. "2." On September 22, 2012, Lieutenant F. Turner delivered the incident report to Petitioner. Response (Doc. 12), Exh. "A," Attach. "6" at 8. Lieutenant Turner also investigated the incident, and advised Petitioner of his rights. Response (Doc. 12), Exh. "A," Attach. "6" at 8. During Lieutenant Turner's investigation, Petitioner chose not to make a statement, and displayed a fair attitude. Id. Lieutenant Turner forwarded the Incident Report to the Unit Discipline Committee ("UDC") for further disposition. Id.
On October 24, 2012, the UDC conducted its hearing. Response (Doc. 12), Huband Decl. (Exh. "A"), Discipline Hearing Report & Incident Rpt. No. 2349546 (Attach. "6") at 1, 6. At the hearing, Petitioner was advised of his rights, and received a copy of the advisement of rights form. Id., Exh. "A," Attach. "6" at 1. At the UDC hearing Petitioner stated that "Due process was not followed" and that "[t]he delay notice was sent after the delay." Id., Exh. "A," Incident Rpt. No. 2349546 (Attach. "6") at 6. Based on the severity of the alleged misconduct, the UDC referred the...
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