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Shine v. Norwood

December 9, 2009

MICHAEL LAWRENCE SHINE, PETITIONER,
v.
NORWOOD, WARDEN, RESPONDENT.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. §2241

INTRODUCTION

Petitioner Michael Lawrence Shine ("Petitioner"), proceeding pro se, filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. §2241 by a Person in Federal Custody ("Petition"). Respondent, Joseph Norwood, Warden ("Respondent") filed a Response, and Petitioner filed a Reply Brief.

Petitioner asserts that his constitutional rights were violated during a Disciplinary Hearing Officer ("DHO") procedure concerning an incident report involving the introduction of illicit drugs into the prison facility. Petitioner contends in his first claim that there was absolutely no evidence showing he was involved in any manner in the alleged incident, and that the DHO failed to make the requisite findings based on conflicting evidence. (Petition at 3.) In his second ground, Petitioner asserts that he had no involvement in any plan to bring illicit drugs into the institution, and that he was not provided a hearing within 72 hours as required by Federal Bureau of Prisons ("BOP") policy. (Id.)

Petitioner has exhausted his available administrative remedies (see Klein Declaration, Exhibits ["Exs."] 4 and 5.)

Pursuant to 28 U.S.C. §636(c), all parties have consented that this matter may proceed before the Magistrate Judge.

After reviewing the Petition, the Government's Response, and Petitioner's Reply Brief, the Court concludes that the Petition is without merit, and must be dismissed.

PETITIONER'S CONSTITUTIONAL RIGHTS WERE NOT VIOLATED BY THE DHO PROCESS

Pursuant to 28 U.S.C. §2241, it is Petitioner's burden to demonstrate that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §2241(c)(3). See Rose v. Hodges, 423 U.S. 19, 21 (1975)(citing 28 U.S.C. §2241.)

A. Factual Background

Petitioner arrived at the United State Penitentiary in Terre Haute, Indiana on September 21, 2005. (See Klein Declaration Ex. 3.)

On August 16, 2006, prison staff recovered an express mail cardboard mailer which was addressed to inmate Cedric King. Secreted inside the package, which included certain legal papers, was marijuana. (See Alexander Declaration, Ex. 1.)

Following an administrative investigation, on December 22, 2006, Petitioner was charged under Code 111, Introduction of Narcotics. That investigation concluded that Petitioner, with other inmates, was involved in an attempt to introduce marijuana into the prison facility. A copy of the report was delivered to Petitioner on December 22, 2006. (Id.)

A Report of Investigation dated January 10, 2007 indicated that Petitioner was interviewed by Lt. Lovett, advised of his rights to remain silent during the disciplinary process, and advised that his silence may be used to draw an adverse inference at any stage of the disciplinary process. Petitioner was provided with a copy of the report and elected not to make a statement or have any witnesses. Lt. Lovett found that the charge warranted ...


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