United States District Court, E.D. Arkansas, Helena Division
TRACEY E. GREEN Reg # 12098-045 PETITIONER
v.
GENE BEASELY, Warden, Forrest City Low RESPONDENT
PROPOSED FINDINGS AND RECOMMENDATIONS
INSTRUCTIONS
The
following recommended disposition has been sent to United
States District Court Judge D. P. Marshall, Jr. Any party may
serve and file written objections to this recommendation.
Objections should be specific and should include the factual
or legal basis for the objection. If the objection is to a
factual finding, specifically identify that finding and the
evidence that supports your objection. An original and one
copy of your objections must be received in the office of the
United States District Court Clerk no later than fourteen
(14) days from the date of the findings and recommendations.
The copy will be furnished to the opposing party. Failure to
file timely objections may result in waiver of the right to
appeal questions of fact.
If you
are objecting to the recommendation and also desire to submit
new, different, or additional evidence, and to have a hearing
for this purpose before the District Judge, you must, at the
same time that you file your written objections, include the
following:
1. Why the record made before the Magistrate Judge is
inadequate.
2. Why the evidence proffered at the hearing before the
District Judge (if such a hearing is granted) was not offered
at the hearing before the Magistrate Judge.
3. The detail of any testimony desired to be introduced at
the hearing before the District Judge in the form of an offer
of proof, and a copy, or the original, of any documentary or
other non-testimonial evidence desired to be introduced at
the hearing before the District Judge.
From
this submission, the District Judge will determine the
necessity for an additional evidentiary hearing, either
before the Magistrate Judge or before the District Judge.
Mail
your objections and “Statement of Necessity” to:
Clerk, United States District Court Eastern District of
Arkansas 600 West Capitol Avenue, Suite A149 Little Rock, AR
72201-3325
DISPOSITION
This
matter is before the undersigned United States Magistrate
Judge of the District Court on the petition of federal
prisoner Tracey Green for a writ of habeas corpus pursuant to
28 U.S.C. § 2241. (Docket Entry # 1) Petitioner claims
that he has been deprived of his constitutionally-protected
due-process rights, as a result of a disciplinary action
taken against him during his confinement. Petitioner seeks to
have the disciplinary action expunged from his file and that
any Management Variables that were placed in his Inmate
Central File be removed so that he can attend camp.
Respondent has filed a Response asserting that the Petition
should be denied because Petitioner was not denied his due
process rights and the disciplinary action is supported by
some evidence. (Docket Entry # 7) Petitioner filed a Reply to
the Response asserting that his procedural due process rights
were violated because he did not receive a copy of the
original incident report until June 14, 2016, while housed in
SHU, and more than forty-eight hours later than Respondent
claims. He also claims he was not notified of any charges
against him on June 15, 2016, when the investigator went to
see him, or told that an investigation was pending for
possible criminal prosecution. (Docket Entry #8) He notes
that his request for SHU logs and camera footage were denied
in violation of “Program Statement 5270.09, §
541.5, §(2), ¶ 5, ” and he states he
proceeded with his hearing, despite not having the logs,
camera footage, and witnesses he wanted because he was
threatened with more severe sanctions. Id.
I.
BACKGROUND
Petitioner
is currently incarcerated at a federal correctional
institution in Forrest City, Arkansas (FCI-Forrest City). He
is serving an aggregate 120-month sentence out of the Western
District of Missouri for possession with intent to distribute
cocaine base, felon in possession of a firearm, and a
supervised release violation. (Docket Entry #7-1, Attachment
1)
The
facts underlying the petition are these: On June 12, 2016, at
approximately 2:15 a.m., officers conducting a visual search
noticed that Petitioner and another inmate were not in their
assigned sleeping quarters. A 2:33 a.m. emergency bed count
was conducted for the unit, and the two were not present.
They reappeared ...