United States District Court, E.D. Virginia, Richmond Division
A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on George Lee Harvey's
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2241 ("§ 2241 Petition, " ECF No. 3).
Harvey challenges his prison disciplinary conviction for
possessing a cellphone within a correctional institution.
(Mem. Supp. § 2241 Pet. 1-2, ECF No. 3-1.) Respondent
filed a Motion to Dismiss, or in the Alternative, Motion for
Summary Judgment. ("Motion to Dismiss, " ECF No.
6.) For the reasons set forth below, Respondent's Motion
to Dismiss will be denied without prejudice.
Pertinent Factual and Procedural History
March 2, 2015, Harvey was an inmate in the Federal Bureau of
Prisons. (Mem. Supp. § 2241 Pet. 1.) On that date,
prison officials searched Harvey's assigned cell and
discovered a cell phone in a hidden compartment under the
sink. (Mem. Supp. Mot. Dismiss. Ex. 2, at 1, ECF No. 7-2.)
was charged with "Possession of a Hazardous Device ...
Cellular Phone." (Mem. Supp. Mot. Dismiss Ex. 4, at 1,
ECF No. 7-4.) On March 12, 2015, Disciplinary Hearing Officer
("DHO") D. Mosley conducted a hearing on the above
charge. (Id. at 3.) At the hearing, Harvey denied
guilt and stated, "I just moved in the cell two weeks
ago. I know nothing about a cellphone." (Id. at
1.) At the conclusion of the hearing, DHO Mosley found Harvey
guilty of the above charge and sanctioned him with, inter
alia, the loss of 41 days of good conduct time and 30
days of segregation. (Id. at 3.) On April 28, 2015,
DHO Mosley executed his Amended Disciplinary Hearing Officer
Report. (Id.) The next day, a copy of the same was
provided to Harvey. (Id.)
Harvey was serving his term of segregation, Harvey received
paperwork pertaining to the above infraction that included
notes from "Lieutenant Starcher, [a] Special
Investigative Security" Officer ("SIS"). (Mem.
Supp. § 2241 Pet. 2.) According to Harvey, those notes
stated that "an identifying card used for storing data
contained in cellular phones was in an envelope sent by an
outside source to ... George Stallworth[, ] who occupied the
assigned cell... prior to the arrival of petitioner at the
facility." (Id.) According to Harvey,
"George Stallworth admitted to the SIS Lieutenant that
the cellphone actually belonged to him." (Id.)
April 14, 2015, Harvey appealed his disciplinary conviction.
(Mem. Supp. Mot. Dismiss Ex. 1, Attach. 2, at 1, ECF No.
7-1.) Harvey noted that, "Lieutenant Starcher stated to
this inmate that she had uncovered evidence to establish that
the cell phone belonged to Stallworth, and further evidence
to establish that I knew nothing of this cell phone. However,
this crucial information was not discovered by Lieutenant
Starcher until after the DHO hearing was conducted, on or
about, March 10, 2015." (Id.)
1, 2015, the Regional Director denied Harvey's appeal.
(Mem. Supp. Mot. Dismiss Ex. 1, Attach. 3, at 1.) In
rejecting that appeal, the Regional Director noted that:
[Y]ou allege you did not commit the prohibited act. You claim
there was evidence that could have verified you did not
commit the prohibited act. You failed to provide any
information reflecting additional evidence existed to
exonerate you of the charge. The DHO outlined in detail the
evidence utilized to find you committed the prohibited act.
Further, in accordance with [BOP regulations, ] 'It is
your responsibility to keep your area free of
contraband.' In this case, the contraband was found in a
common area of your cell and you are responsible for all
items found in these areas.
Analysis of Harvey's § 2241 Petition and
Respondent's Motion to Dismiss
§ 2241 Petition, Harvey complains that prison officials
refused to use the information Lieutenant Starcher obtained
in her investigation, which revealed the cell phone belonged
to inmate Stallworth. (Mem. Supp. § 2241 Pet. 2.) Harvey
requests that the Court order respondent to show cause why
his motion to "RESTORE GOOD-TIME CREDITS and EXPUNGEMENT
of Incident Report No. 2688653" should not be granted.
(Id. at 8 (emphasis in original).)
inmate brings a habeas petition to challenge the sufficiency
of the evidence underlying a revocation of his good time
credits, the requirements of due process are met when
"the findings of the prison disciplinary board are
supported by some evidence in the record."
Superintendent Mass. Corr. Inst. v. Hill, 472 U.S.
445, 454 (1985). Although this standard is low, it is
balanced by the requirements that prison disciplinary boards,
"may not arbitrarily refuse to consider exculpatory
evidence simply because other evidence in the record suggests
guilt." Whitford v. Boglino,63 F.3d 527, 536
(7th Cir. 1995) (quoting Viens v. Daniels, 871 F.2d
1328, 1336 n.2 (7th Cir. 1989)). And prisoners are entitled
to have exculpatory evidence disclosed unless its disclosure
would unduly threaten institutional concerns. Campbell v.