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GRIFFIN v. DeROSA

September 12, 2005.

WILLIE JAMES GRIFFIN, JR., Petitioner,
v.
C.J. DeROSA, Warden, Respondent.



The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge

OPINION

Petitioner Willie James Griffin, Jr., a prisoner currently confined at the Federal Correctional Institution at Fort Dix, New Jersey, has submitted a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2241,*fn1 challenging the results of a prison disciplinary proceeding. The sole respondent is Warden C.J. DeRosa.

For the reasons set forth below, the Petition will be denied.

  I. BACKGROUND

  Petitioner was convicted in the U.S. District Court for the Northern District of Florida of conspiracy to possess with intent to distribute cocaine and cocaine base. He was sentenced to a term of imprisonment of 252 months, to be followed by ten years of supervised release. He currently is confined at the Federal Correctional Institution at Fort Dix, New Jersey, pursuant to that sentence.

  On August 16, 2002, Petitioner dialed a telephone number and spoke with a female, later identified as his sister. He asked where whether she had the telephone number for his niece. When his sister said she did not know the number by heart, Petitioner asked whether she had three-way calling. She responded that she did and asked whether she could make a call on the other line to retrieve the niece's telephone number. Petitioner said that she could, but that she had to do the talking. Petitioner's sister dialed another number, that number rang, she clicked over, and returned shortly thereafter and gave him the telephone number. Petitioner did not speak to the third party nor could he hear that conversation. Upon routine review of the taped telephone call, prison staff issued an incident report charging Petitioner with a violation of Code 297, use of the telephone for abuses other than criminal activity (e.g., third-party calling, conference calling), a "High Category" prohibited act. See 28 C.F.R. § 541.13 Prohibited acts and disciplinary severity scale. On August 17, 2002, staff provided Petitioner with a copy of the incident report.

  The Unit Disciplinary Committee ("UDC") reviewed the incident report on August 19, 2002. Petitioner asserted that he was merely put on hold and couldn't even hear the conversation on the other line, let alone speak to a third party. Because a Code 297 is a High Category prohibited act, and the sanctions applicable to such misconduct exceeded the UDC's authority, the UDC referred the incident report to the Discipline Hearing Officer ("DHO") for further consideration.

  On August 19, 2002, Petitioner was advised of his rights by the DHO, at which point he requested no witnesses but asked for a staff representative. Petitioner's DHO hearing took place on September 5, 2002. His requested staff representative, Mr. Writtenhour, was not available. Petitioner elected to proceed with the hearing without the assistance of Mr. Writtenhour or a new staff representative. Petitioner restated that he did have his sister use three-way calling to call a third party, but he never heard the call nor talked to the third party, believing that as long as he did neither he was not in violation of any rule. He also submitted an evidentiary defense in the form of a greeting card from his mother and a legal-sized sheet of paper with writing on both sides expressing his defense once again.

  Based on the incident report, Petitioner's admission that he asked his sister to make a third-party call while he remained on the line, and the tape recording of the call that the DHO listened to at the hearing, the DHO concluded that Petitioner had violated prison regulations. However, the DHO found that Petitioner had actually committed the prohibited act of Code 397, use of the telephone for abuses other than criminal activity (e.g., three-way calling, conference calling), a less severe "Moderate Category" prohibited act, subjecting Petitioner to lesser sanctions. The DHO sanctioned Petitioner to loss of 13 days good conduct time, 15 days of disciplinary segregation, and loss of various other privileges. The DHO noted that these severe sanctions were necessary because of the seriousness of Petitioner's misconduct and the ineffectiveness of prior sanctions in modifying his behavior. The DHO provided Petitioner a copy of his report on October 2, 2002.

  Petitioner's administrative appeals of the DHO's findings were denied. Having exhausted his administrative remedies, Petitioner submitted this § 2241 Petition for writ of habeas corpus. Here, Petitioner contends that prison staff charged him first with a "High Category" offense in order to manipulate the disciplinary hearing process by forcing prisoners charged with such offenses to spend time in administrative detention while they await their hearings, by removing the hearing from the UDC to the DHO, and to obtain leverage in persuading prisoners to waive their right to a staff representative who may be unavailable in order to avoid remaining in administrative detention while awaiting a hearing. In addition, Petitioner contends that the DHO abused his discretion in finding that Petitioner violating Code 397. Petitioner claims that he did not make a three-way call in violation of Code 397 because he never spoke to the third party on the other line. Petitioner does not specify the relief he seeks.

  II. LEGAL STANDARD

  "Habeas corpus petitions must meet heightened pleading requirements." McFarland v. Scott, 512 U.S. 849, 856 (1994). A petition must "specify all the grounds for relief" and must set forth "facts supporting each of the grounds thus specified." See Rule 2(c) of the Rules Governing § 2254 Cases in the U.S. District Courts (amended Dec. 1, 2004) ("Habeas Rules"), made applicable to § 2241 petitions through Rule 1(b) of the Habeas Rules.

  Nevertheless, a pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 ...


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