Green v. Beasley

          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 ...