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John Lawbaugh v. Warden Donna Zickefoose

February 16, 2011

JOHN LAWBAUGH, PETITIONER,
v.
WARDEN DONNA ZICKEFOOSE, RESPONDENT.



114 Garfield Street Waynesboro, PA 17268 BUMB, District Judge

The opinion of the court was delivered by: Renee Marie Bumb United States District Judge

NOT FOR PUBLICATION

OPINION APPEARANCES:

Petitioner, John Lawbaugh, was confined at the Federal Correctional Institution ("FCI"), Fort Dix, New Jersey, at the time he filed this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. For the following reasons, the petition must be dismissed.

BACKGROUND

Petitioner states that on December 17, 2007, he was convicted in the United States District Court, District of Maryland for wire fraud, theft, and income tax evasion charges. He was sentenced to 33 months incarceration, and three years supervised release. (Petition, ¶ 3). While in custody of the Bureau of Prisons ("BOP"), Petitioner was found eligible for the BOP's Residential Drug Abuse Treatment Program ("RDAP"). In May of 2009, Petitioner graduated the RDAP and received a one-year sentence reduction and six months of Residential Re-Entry Center ("RRC") placement. Petitioner was transferred to an RRC in Maryland in May of 2009. (Pet., ¶¶ 5-7).

Petitioner states that on August 4, 2009, while at the RRC, he was on "furlough" and got into a car accident. He was arrested at the scene for drunk driving, and was taken to the jail, although Petitioner contends that no sobriety tests were administered. He was released the next day and was returned to the RRC. The drunk driving charges were eventually dismissed; however, upon return to the RRC, Petitioner was given an incident report charging "escape." As a result, Petitioner was transferred back to the Federal Correctional Institution in Maryland. (Pet., ¶¶ 8-14).

On August 21, 2009, a Disciplinary Hearing Officer ("DHO") found Petitioner guilty of the escape charge. Petitioner was transferred to FCI-Morgantown and placed in the Special Housing Unit ("SHU"). In October of 2009, the charges against Petitioner were reinvestigated, and on January 28, 2010, the DHO conducted a hearing on the incident report and found Petitioner guilty. Petitioner was sanctioned to 11 days loss of good conduct time, loss of RRC placement, loss of the RDAP one-year sentence reduction, and transfer to a higher security facility. (Pet., ¶¶ 15-18). The January 28, 2010 DHO Report, attached to Petitioner's petition as Exhibit K, reveals that Petitioner had requested a pass to go to his sister's home, and was due back to the RRC by 2:00 p.m. on August 5, 2009. At 3:30 p.m. on August 5, the RRC Coordinator called Petitioner's pass location and employer and was unable to locate Petitioner. The evidence used to sanction Petitioner is set forth in that Report.

Petitioner appealed the findings to the Regional Director, pursuant to the BOP's Administrative Remedy Program, which denied his appeal. Petitioner filed a Central Office appeal, but gives no indication that it was decided prior to the filing of this habeas petition. (Pet., ¶¶ 20-21).

On April 21, 2010, Petitioner was transferred to FCI Fort Dix. A team review was conducted, and Petitioner was recommended for 45-60 days RRC placement. However, on May 19, 2010, the Warden denied the RRC placement. (Pet., ¶¶ 24-25). Petitioner's request for informal resolution, requesting RRC placement, was denied on July 8, 2010, on which date Petitioner filed a Request for Administrative Remedy with the Warden. (Pet., ¶¶ 27-28).

Petitioner filed this habeas petition on July 20, 2010. On September 7, 2010, Petitioner was released from BOP custody.

PETITIONER'S CLAIMS

In his petition, Petitioner asks this Court to (1) expunge the incident report, and reinstate his good conduct time, and eligibility for early release programs; (2) consider him for a 12-month RRC pursuant to the "Second Chance Act," 18 U.S.C. ยง 3624(c)(2)(as amended by the Second Chance Act of 2007, Pub. L. No. 110-199, April 9, 2008); (3) consider him for RRC placement due to his participation in RDAP; (4) consider him for RRC placement because of his participation in the skills development program; and (5) to terminate his term of supervised release, ...


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