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Linares v. Terris

United States District Court, E.D. Michigan, Southern Division

April 9, 2018

WARDEN J.A. TERRIS, Respondent.


          DAVID M. LAWSON United States District Judge .

         Petitioner Rafael Linares presently is serving a federal sentence at the Federal Correctional Institution in Milan, Michigan for a drug crime violation. He believes that his custodial sentence is being extended improperly because certain good time credit has been taken from him as a penalty for violating certain prison rules. Linares contends in a petition for a writ of habeas corpus, filed under 28 U.S.C. § 2241, that irregularities in two disciplinary proceedings violated his constitutional rights and a program statement issued by the Federal Bureau of Prisons. Because the Court does not see it that way, the petition will be denied.


         Linares was convicted in the United States District Court for the Southern District of Texas of conspiracy to possess with intent to distribute 1, 000 or more kilograms of marijuana. On January 23, 2014, the trial court sentenced him to seventy months in prison followed by three years of supervised release. The United States Court of Appeals for the Fifth Circuit dismissed Linares's appeal because there were no non-frivolous issues for appellate review. See United States v. Linares, 582 Fed.Appx. 482 (5th Cir. 2014).

         On May 4, 2015, while Linares was incarcerated at a federal facility in Wisconsin, another inmate allegedly used a cellular (“cell”) phone to take pictures of Linares. Linares subsequently was transferred to a federal prison camp in Illinois. Prison officials then discovered the pictures of Linares on the other inmate's cell phone. On August 9, 2015, a federal official charged the petitioner in an incident report with violating Code 108 (aiding possession of a hazardous tool). With an apparent typographical gaff, the report stated that, “[a]lthough inmate Linares was in possession, he posed for the photographs indicating knowledge of the cellular phone.” On August 11, 2015, a prison official served the petitioner with the incident report.

         On August 20, 2015, the incident report was amended to read: “Although inmate Linares was not in possession, he posed for the photographs indicating knowledge of the cellular phone.” (Emphasis added.). A prison official delivered the amended incident report to Linares on August 20, 2015, and on August 21, 2015, the unit disciplinary committee (“UDC”) discussed the charge with him and referred the matter to the disciplinary hearing officer (“DHO”).

         In September of 2015, the incident report had to be regenerated and the matter re-investigated because prison officials misplaced the initial incident report. Following the re-investigation, a second UDC hearing was held on September 25, 2015, and the matter was again referred to the DHO for imposition of sanctions. The matter was re-investigated another time, and on October 13, 2015, a third hearing was held before the UDC. The UDC referred the matter to the DHO who held a hearing on the charge on October 26, 2015. On October 29, 2015, the DHO issued a report stating that Linares was guilty of aiding possession of a hazardous tool. As a result, the petitioner lost forty-one days of good conduct time and ninety days of phone, commissary, and visiting privileges. On November 6, 2015, the DHO's report was delivered to the petitioner.

         Meanwhile, on August 14, 2015, Linares was charged in an unrelated incident with violating Code 305: “possession of anything not authorized.” The charge arose from a correctional official's search of the petitioner and discovery of eight hand-rolled tobacco cigarettes in the petitioner's pants pocket. On August 15, 2015, the incident report was delivered to Linares.

         On August 20, 2015, the incident report was amended to charge Linares with violating Code 331: possession of non-hazardous contraband (tobacco); and on August 21, 2015, the amended report was delivered to him. At a hearing before the UDC on August 21, 2015, Linares admitted that he was guilty of the charge, and the matter was referred to the DHO. At the DHO's hearing on September 9, 2015, Linares again admitted that he was guilty, and the DHO found him guilty as charged. Linares lost fourteen days of good conduct time and thirty days of commissary and telephone privileges as a result of his misconduct. On September 20, 2015, the DHO's report was delivered to Linares.

         In 2016, Linares was transferred to FCI-Milan, and on October 6, 2016, he filed a pro se habeas corpus petition challenging both the disciplinary proceedings. The Court dismissed the petition without prejudice when the petitioner failed to comply with a court order to pay the filing fee or to apply for leave to proceed in forma pauperis. See Linares v. Terris, No. 16-13576 (E.D. Mich. Nov. 15, 2016) [dkt. #6]. After the petitioner discovered that his case had been dismissed, he submitted the $5.00 filing fee and moved to re-open the 2016 case on the ground that he had not received the Court's deficiency order. Instead of re-opening the case, the Court ordered the Clerk of Court to open a new habeas case and to apply the funds received from the petitioner to the new case. The Court ordered the petitioner to file a new petition for a writ of habeas corpus under the new docket number.

         Linares complied. His latest petition alleges that the disciplinary proceedings were procedurally defective, and he did not receive due process, because (1) the incident reports were not issued in a timely manner, (2) the UDC's reviews were untimely, (3) correctional officer Bates performed three different roles in the disciplinary process (which included investigation and adjudication), and (4) he is innocent of one of the misconduct charges. Linares asks the Court to order restoration of forty-one days of forfeited good conduct time. The government argues in its answer that the Court should dismiss the petition because Linares failed to exhaust administrative remedies for his claims and, even if the exhaustion requirement is excused, the petitioner's right to due process was not violated during the disciplinary proceedings.


         Federal prisoners ordinarily must exhaust administrative remedies for their claims before filing a section 2241 habeas corpus petition. Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir. 2013) (citing Fazzini v. Northeast Ohio Corr. Ctr., 473 F.3d 229, 231 (6th Cir. 2006)). The Federal Bureau of Prisons has an administrative-remedy program that “allow[s] an inmate to seek formal review of an issue relating to any aspect of his/her confinement.” 28 C.F.R. § 542.10(a). The exhaustion requirement generally is “required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.” Weinberger v. Salfi, 422 U.S. 749, 765 (1975).

         Section “2241's exhaustion requirement is not statutorily required, ” however, and “a prisoner's failure to exhaust available state or administrative remedies may be excused where pursuing such remedies would be futile, ” or where the remedy would not “afford the petitioner the relief he seeks.” Fazzini, 473 F.3d at 235-36. Although Linares attempted to pursue administrative remedies for his claims, all of his administrative appeals were rejected for procedural reasons. See Response to Pet. for Writ of Habeas Corpus at 10 [dkt. #7]. It would be futile for him to pursue administrative remedies at this ...

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