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Owen Robinson v. Warden Kirby

March 23, 2011

OWEN ROBINSON, PETITIONER,
v.
WARDEN KIRBY, RESPONDENT.



The opinion of the court was delivered by: Simandle, District Judge:

MEMORANDUM OPINION

This matter comes before the Court upon Petitioner's filing of an application seeking habeas relief, pursuant to 28 U.S.C. § 2241("Petition"). This Petition will be denied for lack of merit, for the following reasons:

1. Petitioner, presently confined at FCI Fairton, filed his Petition asserting that his loss of vested and non-vested good-conduct credits, as well as other sanctions, was improperly imposed upon him when: (a) Petitioner was apprehended by his prison officials being in possession of an illegal cell phone; and (b) Petitioner's violation was qualified as a "greatest severity" offense (and corresponding sanctions were imposed under the BOP Codes 108 and 199). See Docket Entry No. 1. Petitioner asserted that he had no notice as to the fact that possession of illegal cell phone was a disciplinary infraction of "greatest severity," and -- therefore -- he should have been charged and sanctioned for committing only a "moderate" violation (under the BOP Code 305) rather than for a violation of "greatest severity." See id.

Petitioner, hence, seeks revocation of imposed sanctions and expungement of his prison record, asserting that certain inmates known to Petitioner, who were initially sanctioned for possession of illegal cell phones, were recently granted these very remedies administratively.

2. Petitioner's challenges are identical to those dismissed, as meritless, in numerous actions under § 2241. Recently, the same challenges were dismissed in Pittman v. Zickefoose, Civil Action No. 10-5057 (RMB) (D.N.J.) (filed Sep. 27, 2010). Specifically, the court in Pittman addressed an inmate's challenges that he was unduly charged with (and sanctioned for) the "greatest severity" Code 108 violation (instead of the "moderate severity" Code 305 violation) in connection with the prison officials of F.C.C.

Petersburg ("FCCP"), Virginia, apprehension of the inmate while he was in possession of an illegal cell phone. See id. Docket Entry No. 6. The Pittman court observed:

a. Petitioner's challenges are two-fold. First, he seek expungement of his prison records from the fact that he committed the very infraction underlying his sanction. Second -- and, seemingly, in support of his expungement claim -- Petitioner asserts that the imposition of this loss-of-good-conduct-credit sanction violated his rights because, at the time of Petitioner's committing his infraction, the overall impression held by the FCCP general population (and by Petitioner, in particular) was that - if an inmate's illegal possession of a cell phone were detected - the violator would get sanctions other than loss of good-conduct credit. Thus, Petitioner concedes that the FCCP officials put the inmates on notice that cell phone possession was a sanctionable infraction, but he alleges that the FCCP officials were obligated but failed to expressly correlate that particular misconduct to Code 108 sanctions, which allowed the inmates (and Petitioner, in particular) to believe that such infraction would be sanctioned under Code 305, a more lenient provision than Code 108.*fn1 Petitioner states that a certain BOP official eventually clarified . . . that the BOP had begun construing the possession-of-cell-phone misconduct as Code 108 infraction in order "to incorporate technological advances that were not present when the [original] rule was drafted."*fn2 Id. at 8.

b. Petitioner's challenges are substantively without merit . . . .

i. With regard to Petitioner's request for expungement, it shall be noted that the Court of Appeals stressed its doubts as to whether an expungement claim could, altogether, be raised in a habeas action. See Williams v. Fed. Bureau of Prisons, 85 Fed. App'x 299 (3rd Cir. 2004). In Williams, the inmate filed a § 2241 habeas petition claiming that the BOP improperly refused to delete information contained in his prison file. See id. at 303. In response, the Court of Appeals observed:

We have never had to decide whether to endorse the right of expungement announced in Paine v. Baker, 595 F.2d 197 (4th Cir. 1979), and other Circuit Courts of Appeals have expressly questioned its precedential value. [See] Johnson v. Rodriguez, 110 F.3d 299, 308-09 n. 13 (5th Cir. 1997).

Nevertheless, [the inmate in Williams] argues that his . . . prison file expungement claim are meritorious under Paine v. Baker. There, the Court of Appeals for the Fourth Circuit announced that, in limited circumstances, state prisoners have a federal due process right to have "prejudicial erroneous information expunged from their prison files." [Paine,] 595 F.2d at 202. The court held:

In certain limited circumstances a claim of constitutional magnitude is raised where a prisoner alleges (1) that information is in his file, (2) that the information is false, and (3) that it is relied upon to a constitutionally significant degree.

Id. at 201. [The inmate now] argues that he can assert Paine v. Baker expungement claims in a § 2241 habeas petition. Even if we assume arguendo that [the inmate] can assert a Paine v. Baker expungement claim in a § 2241 habeas petition, it is nevertheless clear that he is not entitled to relief [of expungement of] his prison file [where the information on file is factually correct].

Williams, 85 Fed. App'x at 303 (emphasis supplied).*fn3 In light of the "arguendo" language used by the Court of Appeals in Williams and the clarifications provided, later on, by the Supreme Court in Wilkinson, Petitioner's expungement claim appears not cognizable in a habeas action. Moreover, even if presumed cognizable, this claim is facially without merit and should be summarily dismissed simply because Petitioner here concedes that he, in fact, committed the ...

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