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Duran v. Johns

United States District Court, S.D. Georgia, Waycross Division

September 19, 2017

TRACY JOHNS, Respondent.[1]



         Petitioner Rogelio Bautista Duran (“Duran”), who is currently housed at D. Ray James Correctional Facility (“D. Ray James”) in Folkston, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) Respondent filed a Response. (Doc. 11.) Duran filed a Reply. (Doc. 12.) For the reasons which follow, I RECOMMEND that the Court DENY in part and DIMISS in part Duran's Petition, DIRECT the Clerk of Court to enter the appropriate judgment of dismissal and CLOSE this case, and DENY Duran in forma pauperis status on appeal.


         Duran is currently serving a seventy-two month sentence for conspiracy to possess with the intent to distribute 500 grams or more of methamphetamine. (Doc. 11-1, pp. 23-33.) At the time he filed this Petition, he was incarcerated at D. Ray James, and he has not notified the Court of any change in his place of custody.[2]

         On March 23, 2016, D. Ray James was placed on lock down status due to an inmate-on-inmate assault that occurred on the north soccer field of the facility. (Doc. 11-1, pp. 39-42.) Various inmates, including Duran, were identified as suspects in the assault of approximately seven inmates. (Id.) Prison officials placed Duran in the Restrictive Housing Unit (“RHU”) on March 24, 2016, pending investigation into the assault. (Id.) While in the RHU, Duran allegedly attempted to bribe an officer to bring contraband, specifically a cellular telephone, into the prison. (Id.) Duran first offered Correctional Officer Tyler Murray $2, 000.00 and later raised the offer to $5, 000.00 to bring in the phone. (Id.) Officer Murray refused Duran's requests and notified Special Investigative Supervisor Mr. Philip Popwell of the attempted bribe. (Id.)

         On March 27, 2016, Investigative Officer Kristina Henderson initiated an on-site investigation of the allegations against Duran. (Id.) That investigation cleared Duran of being involved in the assault on the soccer field; however, he remained in the RHU pending Officer Henderson's investigation into his alleged attempted bribery of Officer Murray and attempted introduction of a cell phone. (Id.) Officer Henderson's investigation was finalized by Warden Johns on May 10, 2016. On May 10, 2016, Officer Henderson wrote a three-page Incident Report charging Duran with offering a staff member a bribe and attempting to possess a cell phone in violation of D. Ray James disciplinary code. (Id. at pp. 46-50.) D. Ray James staff member Noel P. Clark delivered a copy of the three-page Incident Report to Duran on May 10, 2016. (Id.)

         D. Ray James personnel began an investigation into the Incident Report on May 10, 2016. (Id.) The investigator advised Duran of his right to remain silent at all stages of the disciplinary process and that his silence may be used to draw an adverse inference against him at any stage of the disciplinary process. (Id.) The investigator also informed Duran that his silence alone could not be used to support a finding that he committed the violation. (Id.) Duran acknowledged that he understood these rights and denied every statement in the Incident Report. (Id.) He also claimed that he did not know Officer Murray. (Id.) The investigator concluded that there was sufficient evidence to support the charge against Duran, and the Incident Report was then forwarded to the Unit Disciplinary Committee (“UDC”). (Id.)

         The UDC hearing was held on May 16, 2016. Petitioner appeared at the hearing and provided a statement in his defense restating his prior denial of the charges. Due to the nature of the allegation, the UDC made no decision on the merits and referred the matter to be heard by a Disciplinary Hearing Officer (“DHO”).

         On May 16, 2016, D. Ray James staff provided Duran with notification of the DHO hearing and his rights regarding the hearing. (Id. at pp. 52-55.) Duran acknowledged his opportunity to request witnesses and the assistance of a staff representative at the hearing, but he opted not to call any witnesses or make use of his right to staff representation at that time. (Id.)

         DHO Roger Perry conducted Duran's hearing on May 23, 2016. (Id. at pp. 39-42.) A translation service was used during the hearing. (Id.) Duran was once again advised of his due process rights and provided an opportunity to make a statement and present documents. (Id.) He reiterated his waiver of his right to a staff representative and his opportunity to call witnesses. (Id.) Duran again denied the charges and maintained that he did not know Officer Murray. (Id.) In addition to the Incident Report and Investigation, DHO Perry considered the memorandum from Officer Murray and the SIS Investigation conducted by Officer Henderson. (Id.) DHO Perry found that Duran's claim that he did not know Officer Murray lacked credibility because Officer Murray was assigned to Duran's dormitory for two months prior to the incident. (Id.) Additionally, Duran's statement that Officer Murray had caught other inmates with cell phones indicated Duran's familiarity with Officer Murray. (Id.)

         DHO Perry determined that Duran committed the act as charged, and DHO Perry recommended Duran be sanctioned with, inter alia, disallowance of forty-one days of good conduct time and forfeiture of ninety days of non-vested good conduct time. (Id. at p. 41.) DHO Perry forwarded his DHO report to the DHO Oversight Specialist with the Bureau of Prisons' (“BOP”) Privatization Management Branch in Washington, D.C., who certified that the recommended sanctions were appropriate and that the hearing complied with due process. (Id. at p. 57.) Following this certification, on June 8, 2016, DHO Perry personally delivered a copy of his DHO report to Duran. (Id. at p. 42.) DHO Perry advised Duran of his right to appeal the DHO findings and resulting sanctions. (Id.)


         In his Petition, Duran contends that the DHO hearing violated his due process rights, that there was not sufficient evidence to find that he committed the acts of bribery or attempting to possess a cell phone, and that D. Ray James staff sexually assaulted him and retaliated against him. (Doc. 1.) He requests that the Court order the incident report to be expunged and that his lost and forfeited good conduct time be restored. (Id.) He also seeks all other relief that is just and proper. (Id.)

         Respondent counters that Duran received the appropriate due process protections during the disciplinary proceedings and that the sanctions against him were supported by sufficient evidence. (Doc. 11, pp. 11-13.) Further, Respondent maintains that Duran's allegations of ...

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