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Flournoy v. Terris

United States District Court, E.D. Michigan

August 23, 2019

MICHAEL FLOURNOY, Petitioner,
v.
J.A. TERRIS, Respondent.

          OPINION AND ORDER SUMMARILY DENYING PETITION FOR WRIT OF HABEAS CORPUS

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE

         Michael Flournoy, (“Petitioner”), a prisoner currently housed at the Federal Correctional Institution at Milan, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In his pro se application, Petitioner challenges a decision from a prison disciplinary hearing conducted by the Bureau of Prisons (BOP) that he violated prison rules. Petitioner was found to have been in possession of hazardous tools (two cell phones) found hidden under a bookshelf in the library at the Federal Correctional Institution at Oxford, Wisconsin, where Petitioner was previously housed.

         As a result of his misconduct, Petitioner was disallowed 41 days of good conduct time and he lost commissary, phone, and visiting privileges for 120 days. Petitioner asserts that prison staff did not reveal during the hearing that he was removed from the library where the phones were located when staff searched, that another prisoner was in the library at the relevant time, that the evidence was insufficient because he was not in actual physical possession of the phones, that he was not allowed to present unspecified evidence, and that the BOP failed to test the phones for fingerprints. For the reasons stated below, the petition for a writ of habeas corpus will be denied.

         I.

         Petitioner has attached BOP records to his petition sufficient to adjudicate his claims. On October 10, 2018, Officer K. Roberson, a staff member at the Federal Correctional Institution at Oxford, filed an incident report charging Petitioner with possession of a hazardous tool. The report stated that on October 9, 2018, Roberson walked into the camp library and saw Petitioner bent over tampering with the bottom shelf of a bookcase. Roberson asked Petitioner what he was doing. According to Roberson, Petitioner replied, “My chair hit the shelf so I'm putting it back together.” Incident Report at ¶ 11, ECF No. 1 at PageID.18. Roberson patted Petitioner down, but he found nothing. He then looked under the shelf that Petitioner was manipulating and found two cell phones.

         Petitioner was provided a copy of the incident report. He made a written comment on the report which provides

That's not my statement. I told Roberson I spun my chair and kicked a book. I was putting the book back. He searched my legal work and patted me down. It was count time so he told me to get out of there. After I left he told me to come back. I walked by [inmate] Berkowitz and Roberson had the phone in his hand. The shelf was not like that when I left.

Id. at ¶ 17, ECF No. 1 at PageID.21.

         Petitioner was provided a notice of rights form on October 15, 2018, for the ensuing disciplinary hearing. Discipline Hearing Officer Report, ECF No. 1 at PageID.22. The form indicates that Petitioner requested to call inmate Berkowitz as a witness to testify that Petitioner was not in the library when Roberson found the phones.

         Petitioner attached the hearing report to his petition. The hearing was held on October 25, 2018. Petitioner's unit manger appeared as a staff representative. Petitioner requested a forensic examination of the cell phones to determine whether his fingerprints were on them. He repeated his claim that Roberson only saw him putting a book on the shelf where the cell phones were eventually found, but they were not his. He stated he left the library for a prisoner count when Roberson found the cell phones. Discipline Hearing Officer Report, ECF No. 1 at PageID.22-31.

         Inmate Berkowitz testified that Petitioner was just outside the library when he went inside. He denied seeing Roberson search Petitioner. He denied seeing Roberson retrieve the cell phones from under the shelf. He testified that all the books were already off of the bottom shelf when he went inside the library, and he was asked by staff to reshelve them. Berkowitz testified that Petitioner was frequently in the library doing legal work. Id. at §III.C.2., PageID.23.

         The hearing officer stated in his report that he considered Petitioner's statements made at the time of the incident, as indicated on the incident report, and at the hearing. He also considered the information as reported in the incident report, the photographs of the cell phones, and Berkowitz's testimony. Id. at §V, PageID.24-25. The officer determined that forensic examination of the cell phones was not necessary because

[T]his is not a criminal matter and [the phones] were found in [an] area you were observed to be tampering with. This constitutes possession. While you claim the staff member had to take the shelf apart to get to the phone, this was not confirmed by your witness. Staff reported they just lifted the shelf back and by your own admission it only took ...

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