United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
M. LAWSON United States District Judge .
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.
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).
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.
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”).
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.
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.
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.
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.
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
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,
“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 ...