FAIK MEHMETI, Petitioner, v. WARDEN, FCI ELKTON, Respondent.
CASE NO. 4:14-cv-547
IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION
May 19, 2016
JUDGE JEFFREY J. HELMICK; MAGISTRATE JUDGE THOMAS M. PARKER
Case: 4:14-cv-00547-JJH Doc #: 15 Filed: 05/19/16 1 of 20. PageID #: 86
I. Introduction
Petitioner Faik Mehmeti filed a pro se petition for writ of habeas corpus (Doc. No. 11) pursuant to
The matter was referred pursuant to Local Rule 72.2 for a report and recommendation to former Magistrate Judge Greg White on April 2, 2015. Respondent filed a Return of Writ, styled as a “Motion in Opposition to Petition for Writ of Habeas Corpus” on August 19, 2015. Subsequently, the matter was referred to the undersigned on March 29, 2016 after Magistrate
For the reasons set forth below, it is recommended that the petition for writ of habeas corpus be DENIED.
A. Preliminary Matters
At the time Mehmeti filed his petition, he was in custody, thereby meeting the statutory requirement of
Further, the court has subject matter jurisdiction to consider Mehmeti‘s petition under
Mehmeti has made no request for the appointment of counsel, and he has not requested an evidentiary hearing.
II. Background
As of March 13, 2012, Mehmeti was incarcerated at the Metropolitan Detention Center in
On the above time and date while conducting a shakedown of K-B, I noticed a small handle protruding from the bottom of the left side locker. After further inspection, I pulled out a sharpened tooth brush with a handle made from shredded bedsheets approximately 7 inches in length. In the locker were [sic] the weapon was found was the id card of inmate Mehmetti #79374 – 053.4
Mehmeti describes the incident differently:
An officer found a sharpened tooth brush handle by prying open, with a pry-bar, the bottom of my locker, which was bolted to the floor, but semi-accessible by holes in the side. There is no way a human could lift that bottom without a tool. I had no access to tools. I know this because he told me; however, when I asked for that officer as a witness at my hearing with the DHO, they said that he couldn‘t be there. I was denied the witness.5
The BOP Incident report was delivered to Mehmeti on March 14, 2012. Mehmeti was charged with possession of a weapon, a Code 104 violation.6 Mehmeti was advised of his right to a hearing before a Discipline Hearing Officer (“DHO“) on March 16, 2012.7 Mehmeti waived his right to have a staff representative at the hearing.8 According to the DHO report, Section III(C)(1), “Yes” was checked on the line stating “The inmate requested witnesses.”9 However, the DHO report indicates no witnesses testified.
The hearing was conducted on April 4, 2012 at 11:00 a.m. Section V. of the DHO report, “SPECIFIC EVIDENCE RELIED ON TO SUPPORT FINDINGS (physical evidence, observations, written documents, etc.) states:
Your due process rights were read and reviewed with you by the DHO at the time of the hearing. You stated you understood your rights, had no documentary evidence to present and requested no witnesses. In addition, you did not request
the services of a staff representative. You then indicated that you were ready to proceed with your DHO hearing. It was noted that you originally requested a staff representative, but waived that right at the hearing.
The DHO finds you committed a prohibited act of Code 104 Possession, manufacture of a weapon. The finding is based on the written statement of the reporting officer that on 3/13/12, at approximately 2:15 PM, the officer was conducting a shakedown of KB cell K03-8201. He noticed a small handle protruding from the bottom of the left side locker. After further inspection, the officer pulled out a 7” sharpened tooth brush with a handle. In the locker where the weapon was found was your ID. A photo of the 7” sharpened tooth brush with handle was also relied upon.
During the hearing, you stated, I could not have access to that area. They found it under the locker. This is not true.
Based upon the officer written statement that the officer was conducting a shakedown of KB cell K03-8201 [sic]. He noticed a small handle protruding from the bottom of the left side locker. After further inspection, the officer pulled out a 7” sharpened tooth brush with handle. In the locker where the weapon was found was your ID. A photo of the 7” sharpened tooth brush with a handle was also relied upon. Although you deny this charge the DHO considered the greater weight of the evidence, and finds you committed the prohibited act of code 104.10
Mehmeti was sanctioned by the DHO following his finding that a Code 104 violation had occurred. He was sanctioned 40 days loss of good time credit, 120 days Disciplinary Segregation, 250 days loss of phone and commissary privileges and a $75 fine.11
Mehmeti appealed the disciplinary ruling on April 18, 2012. His appeal stated:
A weapon was found under my locker in a space not accessable [sic] to me. The officer conducting the search used a crow bar to extract the weapon. I had no knowledge the weapon was there. The only way I could have found it was to damage federal property. I was placed in segregation and my cellmate was not. My cellmate was not even questioned. The space under the locker is not my personal space.12
Mehmeti pursued a Central Office Administrative Remedy Appeal on June 17, 2102. His second appeal stated:
A weapon was found in a small space underneath the lockers in my cell. I had a Bunkie, Bajram Lajqi. The weapon was not found in my locker but yet I was the only person taken to the S.H.U. My bunkie was not even questioned. We both had equal access to the space. Responsibility to maintain the space free of contraband should have fallen on both of us. I believe policy was not followed by detaining only me.14
The appeal was denied in a decision issued by the administrator of National Inmate Appeals on April 4, 2013. That decision stated, in part:
“You were provided due process . . . You were given advanced written notice of the charge against you more than 24 hours prior to your appearance before the DHO. In addition, you were afforded the opportunity to request a staff representative and witnesses. You were afforded the right to present a statement and submit documentary evidence. . . . The DHO considered all relevant evidence and relied upon the greater weight of the evidence. We determined the finding and decision were reasonable and the elements of the infraction codes adequately satisfied.”15
A. Petitioner‘s Grounds for Relief
Mehmeti‘s petition asserts four grounds for relief:
GROUND ONE: I did not have Constitutional Due Process at my prison discipline hearing. (Fifth Amendment).
Supporting Facts Regarding Ground One: An officer found a sharpened tooth brush handle by prying open, with a pry-bar, the bottom of my locker, which was bolted to the floor, but semi-accessible by holes in the side. There is no way a human could lift that bottom without a tool. I had no access to tools. I know this because he told me; however, when I asked for that officer as a witness at my hearing with the DHO, they said that he couldn‘t be there. I was denied the witness.
GROUND TWO: I did not have Due Process on my DHO hearing APPEAL; I was still denied access to the officer, and so was an attorney that I hired to get a statement.
Supporting Facts Regarding Ground Two: I‘m not afraid of the truth. The truth will exhonerate [sic] me. I hired an attorney to get a statement from the officer, who I never saw again. That attorney was stonewalled by the MDC and BOP; I was denied a proper and full appeal because of that.
GROUND THREE: The area under the lockers was inaccessible without a tool, and the degree that it WAS accessible, it was accessible to all; this is not an application (a proper application) of the doctrine of constructive possession.
Supporting Facts Regarding Ground Three: The item was allegedly found in a common area. Only I was concerned for guilt; only I was charged. Even my roommate was not. It is legal error to apply the doctrine of constructive possession to me in those circumstances.
GROUND FOUR: I was denied the equal protection of the law (Fifth and Fourteenth Amendments, when I was the only person charged.
Supporting Facts Regarding Ground Four: Prison discipline was selectively applied when only I was charge, and found guilty, applying constructive possession when I had at LEAST a roommate, and many people had occupied the room before me; and constructive possession was applied to an area where I had no access whatsoever, without a 4’ pry-bar.16
Mehmeti‘s brief in support of his petition contends that he asked to have three witnesses testify on his behalf: his cell-mate, his counselor as a staff representative, and the officer who searched his cell.18 Mehmeti contends that the officer would have testified that the sharpened toothbrush found in Mehmeti‘s cell had been discovered when his locker was pried up using a large pry-bar.19
Mehmeti contends he was told that none of his requested witnesses was available to testify at his hearing before the DHO. He alleges that the DHO told him he could indefinitely postpone his hearing until the witnesses could appear – but he would have to remain in the Special Housing Unit (SHU or “the hole“) until then – or he could proceed to have his hearing without the witnesses being available. Mehmeti claims he inferred that the disciplinary hearing would not be held “any time soon.” By the time he was forced to make this choice, he had already been in the SHU for 22 days.20
Mehmeti also contends that he asked his defense attorney21 to obtain an affidavit from the guard who conducted the search. He claims no affidavit was able to be obtained because his attorney was “stone-walled,” just as he was.22
Mehmeti asserts that it was improper to find him guilty on a theory of constructive possession because it would have been impossible for him to possess an item that was located
Mehmeti‘s final contention is that if the contraband had been accessible to him, then it was also accessible to his cell-mate. He asserts that he was improperly subjected to selective prosecution given that he was charged and his cell-mate was not.24
B. Government‘s Points in Opposition to Requested Relief
The government‘s opposition brief concedes that Mehmeti filed his petition was filed after he “fully exhausted his administrative remedies;” he filed it in the correct jurisdiction, and he filed it naming the proper party as a defendant. The government also concedes that
The government argues that Mehmeti “stated he understood his rights, had no documentary evidence to present and requested no witnesses.”26 The government concedes that if “Mr. Mehmeti had requested a witness for the hearing, the DHO would have been required to at least consider the witness’ statement. However the record demonstrates that Mr. Mehmeti chose to proceed without a witness and/or a staff representative.”27 The government also asserts that “the allegation that an attorney attempted to contact Mr. Mehmeti‘s witness is also offered
The government also did not address Mehmeti‘s contention that he was effectively forced to proceed without witnesses by the implicit requirement that he remain in the SHU pending a rescheduled hearing date at which the requested witnesses could have been available.
In regard to Mehmeti‘s contention that his equal protection rights were denied when only he – and not his cell-mate – was charged with constructive possession of the weapon, the government simply states, without citation of authority: “There is, however, no mandate for that accommodation under the law or Constitution.”29
The government argues that the finding that Mehmeti was guilty of a Code 104 weapons violation was supported by some evidence in the record. Based on that, it urges the court to deny the requested petition for writ of habeas corpus.
IV. Analysis
A. Ground One
Ground One of the petition asserts two due process issues, one factual and one procedural. First, Mehmeti contends he should not have been found guilty because he could not have accessed the sharpened toothbrush that was found when his locker was pried from the floor with a crow bar. This is a contention that insufficient evidence supported his having been found guilty of the infraction. Second, he contends he asked to have the officer who conducted the search of the cell be a witness at his hearing, but he was denied the witness due to unavailability.
When a prisoner faces the loss of good time credits, due process requires that he has the
Federal courts do not assess credibility or weigh evidence when reviewing a disciplinary conviction. ” [T]he requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits.” Superintendent, 472 U.S. at 455. Further,
[a]scertaining whether this [“some evidence“] standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.
This court cannot review a disciplinary committee‘s resolution of factual disputes. Id. at 455. A district court merely ensures that a disciplinary decision is not arbitrary and that it has evidentiary support. Id. at 457. Thus, the only question is whether the DHO had “some evidence” to ensure fairness and justify the findings made.
In a situation such as the one here presented in which the petitioner asserts that alternative conclusions could have been reached concerning the factual issues resolved at the disciplinary hearing, the Supreme Court has stated the governing standard regarding the amount of proof required and the manner in which it may be reviewed:
The Federal Constitution does not require evidence that logically precludes any
conclusion but the one reached by the disciplinary board. Instead, due process in this context requires only that there be some evidence to support the findings made in the disciplinary hearing. Although the evidence in this case might be characterized as meager, and there was no direct evidence [implicating the petitioner], the record is not so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary.
Id. at 457. The finding against Mehmeti was supported by the prison officer‘s report, which stated:
On the above date and time while conducting a shakedown of K-B I noticed a small handle protruding from the bottom of the left side locker. After further inspection I pulled out a sharpened toothbrush with a handle made from shredded bed sheets approximately 7 inches in length. In the locker were [sic] the weapon was found was the id card of inmate Mehmetti [sic] # 79373-053.30
These facts alone, though meager, constitute some evidence supporting the finding by the DHO. On that basis, the first portion of Mehmeti‘s Ground One prayer for relief should be denied.
The second portion of Mehmeti‘s Ground One prayer presents a procedural due process issue. He prominently argues that he was effectively forced to proceed with his hearing despite his requested witnesses not being available. The report of the DHO is ambiguous on this issue. On the one hand, Section III(C)(1) of the report indicates that Mehmeti requested witnesses. Section V, on the other hand stated: “Your due process rights were read and reviewed with you by the DHO at the time of the hearing. You stated you understood your rights, had no documentary evidence to present and requested no witnesses. . . . You then stated you were ready to proceed with your DHO hearing.”31
It is certainly possible that Mehmeti‘s characterization of the situation involving the witnesses is consistent with the description of the DHO. He could have requested
In this circumstance, however, remand is not warranted. Although Mehmeti‘s petition asserts that Ground One was presented in all appeals that were available to him,32 a review of both of his appeal notices reveals that the issue of his inability to call his requested witnesses was not presented at either his first or his second level appeal.33 Thus, contrary to the government‘s concession, Mehmeti did not exhaust his administrative appeal remedies in regard to the discrete issue of whether he as wrongly deprived of his due process right to call witnesses, even though he unquestionably completed two levels of administrative review addressing his other topics.
Mehmeti is foreclosed from obtaining habeas relief based on a claim that was not exhausted. “It is well established that federal prisoners complaining of events or conditions relating to their custody must exhaust their administrative remedies before habeas relief may be granted.” Little v. Hopkins, 638 F.2d 953, 954 (6th Cir. 1981). This requirement
For the foregoing reasons, the court should deny the request for habeas relief on Ground One. There is some evidence in the record supporting the disciplinary finding, and petitioner failed to exhaust his administrative remedies and, thereby, procedurally defaulted the issue of his alleged inability to call witnesses.
Mehmeti‘s second ground for relief asserts that his due process rights were compromised in connection with his administrative appeals because he was “denied access to the officer” – his missing witness – as was the defense attorney working on his underlying case. Initially, it must be noted that nothing in the record of the disciplinary proceedings or appeals makes any reference to the alleged activities of Mehmeti‘s defense attorney. Thus, there is no evidence to support ground to; petitioner relies only upon his own statements found in his petition and his accompanying brief.
The court should deny the request for habeas relief on Ground Two. Because Ground Two is entirely premised on Mehmeti‘s claimed inability to call his requested witnesses, and because that issue was not addressed in Mehmeti‘s administrative appeals, Mehmeti failed to exhaust his administrative remedies in respect to that ground for relief, and the claim has been procedurally defaulted, for the same reasons set forth in the analysis of Ground One above.
C. Ground Three
In his third ground for relief, Mehmeti returns to the factual issue raised in Ground One. He contends: “The area under the lockers was inaccessible without a tool, and to the degree it WAS accessible, it was accessible to all; this is not an application (a proper application) of the doctrine of constructive possession.” This ground for relief actually raises two issues: first, that Mehmeti could not have possessed the prohibited weapon; and, second, even if the weapon could have been possessed he was not the only one who could have possessed it.
In support of his position on Ground Three, Mehmeti relies upon, inter alia, McClung v. Hollingsworth, No. 06-6699, 2007 WL 1225946 (4th Cir. April 26, 2007). The McClung case is
McClung is not authority that binds this court. A district court is only bound by decisions of the court of appeals of the district in which it sits. See, Kelley v. Warden, FCI Elkton, No. 4:13 cv 0662 at *4, (N.D. Ohio Aug. 26, 2013). In contrast, a district court is not bound by courts of appeals for other circuits. Id. Judge Polster noted in Kelley, “[N]either the Sixth Circuit nor any District Court within its boundaries has held that the constructive possession rule will only provide “some evidence” of guilt when relatively few inmates have access to the area.” “Revocation of good time credits is not comparable to a criminal conviction, [Wolff v. McDonnell, 418 U.S. at 556] and neither the amount of evidence necessary to support such a conviction, see Jackson v. Virginia, 443 U.S. 307 (1979), nor any other standard greater than some evidence applies in this context.” Superintendent, 472 U.S. at 456.
This court notes that the evidence relied upon by the DHO appears to have been limited to the “Description of Incident” statement in the Incident Report.34 That statement indicates that the weapon was found “protruding from the bottom of the left side locker.” And the statement indicates that Mehmeti‘s ID was “in the locker where the weapon was found.”35 While this is not direct evidence identifying Mehmeti as the owner of the weapon, “the record was no so devoid
D. Ground Four
Ground Four of Mehmeti‘s petition asserts an Equal Protection Clause violation based on a selective prosecution argument. Mehmeti complains that only he was charged with a Code 104 violation, despite the fact that he had a cell-mate and that “many people had occupied the room before me.” He also restates his contention that he could not access the weapon without a crow bar. As noted above, the government gives short shrift to the equal protection claim, indicating there is no support for it in the law.
To the extent Ground Four is a restatement of the factual and legal issues addressed in Ground One and Ground Three, this court should deny the claim for relief based upon an application of the analyses set forth with respect to those grounds above. There was some evidence to support the conclusion of the DHO that Mehmeti was guilty of a code 104 infraction; that being so, the court cannot undo that conclusion.
The central argument of Ground Four is that Mehmeti‘s equal protection rights were violated when he was selectively prosecuted. In United States v. Armstrong, 517 U.S. 456, 463(1996), the Supreme Court observed, in a different context, that “[a] selective-prosecution
In the ordinary case, “so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364, 54 L. Ed. 2d 604, 98 S. Ct. 663 (1978).
Of course, a prosecutor‘s discretion is “subject to constitutional constraints.” United States v. Batchelder, 442 U.S. 114, 125, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979). One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment, Bolling v. Sharpe, 347 U.S. 497, 500, 98 L. Ed. 884, 74 S. Ct. 693 (1954), is that the decision whether to prosecute may not be based on “an unjustifiable standard such as race, religion, or other arbitrary classification,” Oyler v. Boles, 368 U.S. 448, 456, 7 L. Ed. 2d 446, 82 S. Ct. 501 (1962). A defendant may demonstrate that the administration of a criminal law is “directed so exclusively against a particular class of persons . . . with a mind so unequal and oppressive” that the system of prosecution amounts to “a practical denial” of equal protection of the law. Yick Wo v. Hopkins, 118 U.S. 356, 373, 30 L. Ed. 220, 6 S. Ct. 1064 (1886).
Id. at 464-465. To dispel the presumption that those who enforce federal law have done so appropriately, the person making the selective prosecution equal protection argument must present “clear evidence to the contrary.” Id. Thus, for Mehmeti to prove a valid selective prosecution claim, he would be required to adduce “clear evidence” that the decision to bring a disciplinary charge against him “had both a discriminatory effect and a discriminatory intent.” United States v. Jones, 159 F.3d 969, 976 (6th Cir. 1998). For example, when a selective prosecution claim is founded upon an allegation of racial bias, the claimant must show that “the prosecutorial policy was motivated by racial animus; to establish discriminatory effect, the claimant must demonstrate that similarly situated individuals of a different race were not similarly prosecuted.” Id. at 977.
There is no right under the Constitution to have the law go unenforced against you, even if you are the first person against whom it is enforced, and even if you think (or can prove) that you are not as culpable as some others who have gone unpunished. The law does not need to be enforced everywhere to be legitimately and forced somewhere; and prosecutors have broad discretion in deciding whom to prosecute. Cf. Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985).
Futernick v. Sumpter Twp., 78 F.3d 1051, 1056 (6th Cir. 1996). Unless a claimant can establish that he has been singled out because of membership in a protected group or the exercise of a constitutionally protected right, his selective prosecution claim has no merit. Id.
Given (i) the absence of any information to establish that Mehmeti was similarly situated (other than being a cell-mate) of another person he said should have been charged, and (ii) the absence of any evidence of discriminatory intent behind the decision to charge him but not his cell-mate, and (iii) the location of the contraband in the vicinity of Mehmeti‘s locker, the court should conclude that Mehmeti‘s Ground Four should be denied for lack of merit.
In light of the foregoing analysis, I recommend that the court deny the entirety of Petitioner Faik Mehmeti‘s petition for writ of habeas corpus. This recommendation arises from the following conclusions: Ground One should fail, in part, because the disciplinary violation from which he seeks relief is supported by some evidence; and, in part, because he has procedurally defaulted his argument concerning his contended inability to call witnesses. Ground Two is not supported by any evidence of record and, in any event, has been procedurally defaulted. Ground Three should fail because the disciplinary violation from which Mehmeti seeks relief, founded upon the application of constructive possession principles is supported by some evidence. Ground Four should fail for lack of evidence of record to support a claim of unconstitutional selective prosecution.
Dated: May 19, 2016 s/Thomas M. Parker
United States Magistrate Judge
VI. Notice to Parties Regarding Objections:
Local Rule 73.2 of this court provides:
Any party may object to a Magistrate Judge‘s proposed findings, recommendations or report made pursuant to
Fed. R. Civ. P. 72(b) within fourteen (14) days after being served with a copy thereof, and failure to file timely objections within the fourteen (14) day period shall constitute a waiver of subsequent review, absent a showing of good cause for such failure. Such party shall file with the Clerk of Court, and serve on the Magistrate Judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. Any party may respond to another party‘s objections within fourteen (14) days after being served with a copy thereof.
Failure to file specific objections constitutes a waiver of any further right of appeal.
Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Howard v. Secretary of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).