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Lennear v. Wilson

United States District Court, E.D. Virginia, Norfolk Division

February 6, 2018

NICHOLAS LENNEAR, Petitioner,
v.
ERIC D. WILSON, Respondent.

          REPORT AND RECOMMENDATION

          LAWRENCE R. LEONARD UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on pro se Petitioner Nicholas Lennear's ("Petitioner") Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2241 ("the Petition"), ECF No. 1, and the Respondent, Eric D. Wilson, Warden, FCI Petersburg, Medium's ("the Respondent") Rule 5 Answer to Petition for Writ of Habeas Corpus ("the Answer"), ECF No. 5. The matter was referred for disposition to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72(b), Eastern District of Virginia Local Civil Rule 72, and the April 2, 2002, Standing Order on Assignment of Certain Matters to United States Magistrate Judges. For the following reasons, the undersigned RECOMMENDS that the relief sought in Respondent's Answer, namely denial of the Petition ECF No. 5, be GRANTED, and the Petition, ECF No. 1, be DISMISSED WITH PREJUDICE.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On October 17, 2012, in the United States District Court for the Middle District of Florida, Petitioner was sentenced to one hundred and twenty (120) months of incarceration for his convictions of (1) Conspiracy with Intent to Distribute More Than Five Hundred (500) Grams of Cocaine Hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1). 84l(b)(1)(B)(ii), and 21 U.S.C. § 46, and (2) Aiding and Abetting in the Possession with Intent to Distribute More Than Five Hundred (500) Grams of Cocaine Hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1) and 84l(b)(1)(B)(ii), and 18 U.S.C. § 2. See ECF No. 5 at 2 (citing ECF No. 5, attach. 1 at 2, ¶ 4). Based on the Bureau of Prisons ("BOP") records, Petitioner is scheduled to be released on or about January 20, 2021, assuming his entitlement to good time credit. ECF No. 5, attach. 1 at 2, ¶ 4.

         Although Petitioner is now incarcerated in FCI Petersburg, Petitioner was previously incarcerated at FCC Coleman, which is located in Florida. ECF No. 5 at 2. On June 11, 2016, at approximately 10:00 AM, Petitioner was involved in an incident with a FCC Coleman case manager ("Ms. Lemos"). According to Ms. Lemos, during morning count, all inmates were directed to remain in their respective cubicle until the count was finished. Petitioner attempted to leave his cubicle and Ms. Lemos directed Petitioner to return to his cubicle. Petitioner apparently disobeyed Ms. Lemos' direct order and continued to approach Ms. Lemos while loudly shouting "You have an issue with me because of Nowicki [another inmate official] and I'm tired of this sh*t." ECF No. 5 at 2. Ms. Lemos gave a second direct order for Petitioner to return to his cubicle, which Petitioner followed, but upon his return thereto, Petitioner began on a profanity-laced tirade directed at the other inmates protesting the allegedly unfair treatment of the inmates by the correctional staff. Apparently encouraged by Petitioner's entreaties, other inmates joined in the disturbance and also began yelling at Ms. Lemos. Ms. Lemos notified the Operations Lieutenant and requested assistance from other correctional staff. Responding correctional officers removed Petitioner and another inmate from the area and Ms. Lemos was able to restore calm to the unit. According to Petitioner, he merely asked Ms. Lemos several times to use the restroom after the count was complete, but Ms. Lemos denied Petitioner's requests citing Petitioner's "bad attitude." ECF No. 5 at 3. See also ECF No. 5, attach. 1 at 7-8. Immediately after these events transpired, Ms. Lemos generated Incident Report #2860891 ("the Incident Report") to document the confrontation with Petitioner. Therein, Petitioner was charged with "Conduct Disruptive to the Security of the Institution (High) (Disciplinary Code 299), Most Like Engaging or Encouraging a Group Demonstration (Disciplinary Code 212).

         Petitioner contested Ms. Lemos' version of events, insisting that Ms. Lemos' account as memorialized by the Incident Report was inaccurate, as he was merely an aging man in failing health with a medical condition that required his urgent and immediate need to use the restroom, which Ms. Lemos continued to deny based on her dislike of Petitioner and her frustration that the inmate count was taking longer than expected, as evidenced by the fact that she allowed other inmates to use the bathroom, yet Petitioner had asked to go before these other inmates. ECF No. 5, attach. 1 at 16. Petitioner also disputed that he was removed from the unit from correctional staff; rather, Petitioner was directed to walk, unescorted, to a different area. ECF No. 1 at 16. Later that day, at approximately 4:50 PM, Petitioner was provided with a copy of the Incident Report. ECF No. 5, attach. 1 at 7.

         On June 13, 2016, Lieutenant A. Brinson ("Lt. Brinson") conducted an investigation, and discussed the allegation contained in the Incident Report with Petitioner, at which time Petitioner stated "[a]fter Count I asked her to go to the restroom and she said no. I asked her later after count and she still said no. I asked why I could not go to the bathroom and she said because you always have a bad attitude, but she let other people go." ECF No. 5, attach. 1 at 8. Lt. Brinson also noted that Petitioner disavowed the availability of witnesses to support his account, and that Petitioner displayed a "fair" attitude during the investigation. ECF No. 5, attach. 1 at 8. Ultimately, Lt. Brinson found the allegations in the Incident Report as recounted by Ms. Lemos to be substantiated. ECF No. 5, attach. 1 at 8.

         When the Unit Discipline Committee ("UDC") attempted to discuss the matter with Petitioner, he "declined to comment to the UDC." ECF No. 5, attach. 1 at 7. Based on the seriousness of the charged conduct, the matter was forwarded to a Discipline Hearing Officer ("DHO") for a hearing. The UDC also recommended that the DHO take action against Petitioner to include the loss of Petitioner's good time credit. ECF No. 5, attach. 1 at 7.

         On June 23, 2016, Petitioner had a Discipline Hearing conducted by a DHO, wherein Petitioner denied the charges, and stated "I asked her to go to the bathroom. She let three people go and not me. I did say you have an issue with me because of Nowicki." ECF No. 1 at 12. Petitioner was given notice of his rights before the DHO on June 13, 2016, however, Petitioner did not request the presence of witnesses to testify on his behalf, nor did he request the services of a correctional staff representative to assist Petitioner with the hearing, despite being advised of his right to both. ECF No. 1 at 12-13.

         In the DHO's written decision dated June 30, 2016, the DHO found that Petitioner committed a Code 299, most like Code 212 (conduct which disrupts the orderly running of the institution, most like engaging in a group demonstration). ECF No. 1 at 13. After considering Ms. Lemos' written account of the event as documented in the Incident Report and the statements of Petitioner, the DHO concluded that Petitioner's conduct amounted to challenging the authority of staff in the housing unit, which was disrespectful and represented a security concern because such conduct interfered with staffs ability to control a sensitive area. ECF No. 5, attach. 1 at 12-14. Additionally, the DHO concluded Ms. Lemos was a trained professional possessed of the ability to differentiate between when an inmate "is simply addressing a staff member in a professional manner and an inmate being belligerent, intentionally challenging staff in a loud manner[, and] swearing at staff in the presence of other inmates" which was "far beyond what a reasonable thinking person would consider modest" given Petitioner's persistence and the fact that another inmate joined in the fracas. ECF No. 5, attach. 1 at 14. Accordingly, the DHO found the severity of the offense to be "High" and imposed the following sanctions: loss of twenty-seven (27) days of good conduct time; thirty (30) days of disciplinary segregation; loss of one hundred and twenty (120) days of both commissary and visiting privileges; and thirty (30) days of Petitioner's personal property impounded. ECF No. 5, attach. 1 at 14.

         Petitioner appealed the DHO's decision and sanction to the Regional Administrative Office on July 2, 2016, requesting expungement of the Incident Report. ECF No. 1 at 15-16. On July 28, 2016, the Regional Director issued a written denial of Petitioner's appeal, noting that although Petitioner requested the cameras be reviewed as part of the administrative remedy, Petitioner did not make such a request in the presentation of his defense at the DHO hearing, and concluding that the greater weight of the evidence supported the DHO's decision. ECF No. 1 at 17. He specifically advised Petitioner of his right to appeal the decision within thirty (30) calendar days of July 28, 2016. Id.

         On November 17, 2016, Petitioner appealed the decision of the Regional Administrative Office to the BOP General Counsel, reiterating his previous grievance, with the additional ground that his "5th amendment due process rights and policy 5270.09 were violated when [Petitioner] requested to have the camera looked at to verify [Petitioner's] version of the events that took place that day" but was told that cameras are only reviewed when an occurrence involves a knife.[1] ECF No. 1 at 18. Petitioner further averred that his conduct as reported by Ms. Lemos was a violation of Code 307 and 312, as opposed to Code 299 most like Code 212. ECF No. 1 at 18. As of the date of the instant Petition, Petitioner had not yet received a response to his last appeal, and therefore it is properly deemed to be denied. See ECF No. 5 at 6 (citing ECF No. 1 at 9; 28 C.F.R. § 542.18 ("If an inmate does not receive a response within the time allotted for reply, including extension, the inmate may consider the absence of a response to be a denial at that level.")).

         On March 6, 2017, while incarcerated in Petersburg, Virginia, Petitioner filed the instant pro se Petition pursuant to Section 2241. ECF No. 1. Therein, Petitioner asserts two separate, but interrelated grounds for habeas relief arising out of the disciplinary proceedings that occurred after the June 11, 2016 incident at FCC Coleman: (1) that Petitioner's due process rights were violated as established by Wolff v. McDonnell, 418 U.S. 539 (1974) because staff refused to review video evidence that allegedly supported Petitioner's version of events at the DHO hearing; and (2) that Petitioner's due process rights were violated as provided in Superintendent v. Hill, 472 U.S. 445 (1985) because the evidence clearly shows that Petitioner was not guilty of the conduct for which he was charged, but was guilty of a less serious infraction. ECF No. 1 at 2, 7, 9.

         On July 17, 2017, the Respondent filed a Rule 5 Answer to Petitioner's Complaint seeking denial and dismissal of the Petition, and a Roseboro Notice. See ECF Nos. 5-6. On July 31, 2017, Petitioner filed a Response in Opposition to the Respondent's Rule 5Answer. ECF No. 7. The Respondent did not file a Reply to Petitioner's Response in Opposition and the time for doing so has ...


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