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Johnny A. Rizo v. Ricardo Rios

July 7, 2011

JOHNNY A. RIZO, PETITIONER,
v.
RICARDO RIOS, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

Friday, 08 July, 2011 03:06:57 PM

Clerk, U.S. District Court, ILCD

ORDER

This matter is now before the Court on Johnny A. Rizo's ("Rizo") Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. §2241. For the reasons set forth below, Rizo's Petition [#1] is DISMISSED.

Background

On January 11, 2005, the Federal District Court for the Northern District of Florida at Pensacola sentenced Rizo to a 10-year term of imprisonment for drug and firearms offenses. His projected release date is January 15, 2013. Rizo began serving his sentence in the Federal Correctional Institution in Fort Dix, New Jersey from August 8, 2006, to January 29, 2010. He is currently incarcerated in the Federal Correctional Institution in Pekin, Illinois.

On November 27, 2010, a Bureau of Prisons ("BOP") correctional officer entered an inmate restroom and saw an inmate hand something to Rizo. At that time, Rizo was standing in front of a sink and was ordered to turn around for a pat down search. The correctional officer conducted the search and saw a cell phone in the sink Rizo had been using. Rizo received an incident report concerning this event on November 28, 2009. He was interviewed by the Unit Disciplinary Committee ("UDC") and was subsequently called before the Disciplinary Hearing Officer ("DHO") for a hearing on December 18, 2009. Rizo was charged with possession of a hazardous tool and found guilty. He did not request to have a staff representative at his hearing and did not ask to call any witnesses. At the hearing, Rizo claimed that the cell phone had been placed in the sink by another inmate who then left the bathroom. The DHO considered Rizo's statement, the correctional officer's statement, and also the evidence that the cell phone's call log listed phone numbers from Rizo's approved telephone list. The DHO imposed 30 days of disciplinary segregation, 30 days without commissary privileges, 12 months without phone privileges, 30 days without visiting privileges, disallowance of 40 days of good conduct time, and disallowance of 60 days of non-vested good conduct time.

On January 22, 2010, Rizo submitted an appeal of the disciplinary hearing to the Northeast Regional Office ("NERO"). The NERO rejected this appeal on January 27, 2010, instructing him that the appeal should be limited to one letter-size continuation page. He was given 10 days from the date of rejection to resubmit the appeal. The resubmitted appeal was received by the NERO on August 5, 2010, but was again rejected on August 6, 2010, because Rizo did not submit four carbonized copies of the appeal request and did not send the appeal to the correct Regional Office. He was once again given 10 days from the date of rejection to resubmit his appeal.

On August 19, 2010, the Northern Central Regional Office ("NCRO") received Rizo's appeal. The appeal was three days past the deadline and rejected as untimely. He then appealed the decision of the NCRO to the Central Office of the Federal Bureau of Prisons. The Central Office concurred with the NCRO's finding that the appeal was untimely and denied the appeal on October 19, 2010.

On January 10, 2011, Rizo filed the instant Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. §2241 challenging the revocation of his good time credit. In his Petition, he alleges that his due process rights were violated because there was insufficient evidence to find him guilty. Respondents filed a Response to the Petition. Rizo then filed a Reply to the Response where he alleges that his due process rights were violated because the DHO decision was arbitrary and that the disciplinary proceedings were not in accordance with the due process rights accorded to prisoners. The matter is fully briefed, and this Order follows.

Discussion

A petition seeking habeas corpus relief pursuant to 28 U.S.C. §2241 is appropriate when a defendant "is attacking the fact or length of his confinement." Waletzki v. Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994); Alhassan v. Hagee, 424 F.3d 518, 521-22 (7th Cir. 2005). The writ of habeas corpus may be granted where a defendant is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. §2241(c)(3). Federal inmates "have a liberty interest" in good time credits and "must be afforded due process" before any good time credits are revoked. Jones v. Cross, 637 F.3d 841, 845 (7th Cir. 2011).

A. Exhaustion of Administrative Remedies in §2241 Petition

Congress has not created a statutory requirement that inmates exhaust administrative remedies prior to filing a §2241 petition. Gonzalez v. O'Connor, 355 F.3d 1010, 1016 (7th Cir. 2004). Nevertheless, the Seventh Circuit Court of Appeals has held that "[a] common-law exhaustion rule applies to §2241 actions." Richmond v. Scibana, 387 F.3d 602, 604 (7th Cir. 2004); See also Jackson v. Carlson, 707 F.2d 943, 949 (7th Cir. 1983) (holding ...


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