United States District Court, W.D. Virginia, Roanoke Division
Colon, Pro Se Petitioner
Matthew Miller, Assistant United States Attorney, Roanoke,
Virginia, for the Respondent.
P. Jones United States District Judge
Julio Colon, a federal inmate proceeding pro se, filed this
Petition for a Writ of Habeas Corpus under 28 U.S.C. §
2241. Colon contends that he was convicted of prison
disciplinary offenses without due process. Upon review of the
petition and the respondent's evidence in response
thereto, I conclude that the petition must be dismissed for
failure to exhaust administrative remedies.
was incarcerated at United States Penitentiary
(“USP”) Lewisburg, in West Virginia. On June 13,
2016, an investigator there completed an Incident Report,
charging Colon with three prison disciplinary infractions:
introduction of any narcotic, use of the mail for an illegal
purpose, and use of the telephone for an illegal
purpose. The investigation gathered evidence that
in March 2016, Colon had used coded language in telephone
conversations with a female acquaintance to arrange for her
to send him fifty N8 Suboxone strips hidden in legal mail.
The attempted transaction was thwarted in the USP Lewisburg
mailroom. Investigators discovered that the law firm listed
as the return address on Colon's incoming legal mail item
was false, opened the envelope, and found the Suboxone strips
and other evidence of Colon's involvement in the
first served Colon a copy of the Incident Report on June 13,
2016. After a suspension of the report for possible criminal
prosecution, which was declined, officials again delivered
the Incident Report to Colon on August 9, 2016. A lieutenant
advised Colon of his rights. Colon said he understood those
rights, but declined to make any statement.
Discipline Committee (“UDC”) reviewed the
Incident Report and held a hearing at which Colon was
present. He made no comment. Based on the seriousness of the
charges, the UDC then referred the report to a Disciplinary
Hearing Officer (“DHO”) for further proceedings
and advised Colon of his rights in those proceedings.
conducted a hearing on August 15, 2016. When the DHO asked
Colon if he wished to admit or deny committing the prohibited
acts charged in the report, Colon stated that he accepted
full responsibility for his actions and declined any further
comment. The DHO noted that Colon made no complaints of
procedural errors during the hearing.
on the Incident Report and investigation and Colon's
failure to deny the charged conduct or present any defense,
the DHO determined that Colon had committed the prohibited
acts as charged. The DHO then imposed these sanctions: loss
of forty-one days of good conduct time for each offense;
sixty days of disciplinary segregation; the loss of
commissary, e-mailing, and telephone privileges for fifteen
months; and noncontact only visitation for fifteen months.
was advised of his right to pursue an administrative appeal
of the DHO's rulings and was provided a copy of the final
DHO report on September 1, 2016. Although prison records
indicate that Colon knew of, and had previously pursued,
disciplinary appeals, he did not file an appeal from the
DHO's decision at issue in this case.
2017, Colon filed his verified § 2241 petition, alleging
these claims for relief: (1) he did not receive twenty-four
hour advance written notice of the charges; (2) he did not
have an opportunity to call witnesses or present documentary
evidence in his defense; and (3) he did not receive a copy of
the written decision by the DHO. Colon seeks to have his
disciplinary action expunged and his forfeited good conduct
respondent has argued for dismissal of the petition, because
Colon failed to exhaust administrative remedies and his
claims are without merit. The court notified Colon of the
respondent's pleading as required by Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975). The court also
gave him time to file affidavits or other documents
contradicting the respondent's evidence or otherwise
explaining his claims. Colon never responded, and the time
allotted for his response has expired, making the matter ripe
filing a § 2241 petition about prison disciplinary
proceedings, an inmate must first exhaust available
administrative remedies, or show cause for his failure to do
so. See Braden v. 30th Judicial Cir. Ct. of Ky., 410
U.S. 484, 490-91 (1973) (requiring exhaustion in 28 U.S.C.
§ 2241 matter); McClung v. Shearin, 90
Fed.Appx. 444, 445 (4th Cir. 2004) (unpublished) (federal
prisoner challenging disciplinary action must first exhaust
administrative remedies prior to filing § 2241
petition). Exhaustion of administrative remedies may be
excused if the inmate establishes ...