The opinion of the court was delivered by: David R. Herndon Chief Judge United States District Court
This matter is before the Court on respondent Brian Bledsoe's motion to dismiss (Doc. 118). In his motion to dismiss respondent argues that petitioner D. Wallace Mitchell's Statutory Good Time Credit (hereinafter "SGTC") has been restored and as petitioner, arguably, has no other liberty interest, respondent seeks dismissal of the pending petition. Petitioner has filed a response (Doc. 147) in opposition to respondent's motion, arguing that his SGTC has not been restored and that unless the actual incident reports which caused him to lose SGTC are expunged he will continue to lose his credit. Petitioner also argues that he has other liberty interests stemming from his loss of SGTC which require his underlying petition to be resolved. Respondent has filed a reply (Doc. 148) to petitioner's response. Petitioner has also asked for leave to file a supplement (Doc. 150) which he claims will show that he has a liberty interest in his loss of good time. However, as the Court finds that the supplemental documents which petitioner requests to add are not required to decide the motion at hand, the Court DENIES petitioner's request to supplement (Doc. 150). Based on the following, the Court further DENIES respondent's motion to dismiss (Doc. 118).
Petitioner originally filed his petition pursuant to 28 U.S.C. § 2241 on August 14, 2006, seeking to overturn several incident reports he received while being housed at Marion Penitentiary for violations of his due process rights. Petitioner claims his rights were violated in fourteen individual incident reports. Petitioner is currently serving an indeterminate life sentence stemming from convictions he received in the District of Columbia for assault with intent to kill while armed, felony murder, first-degree murder while armed, and possession of a firearm during a crime of violence.
On June 21, 2011, the Court issued an order setting the petition for an evidentiary hearing to determine several factual issues regarding petitioner's due process issues. At that time the Court also directed respondent to file briefing addressing whether petitioner's SGTC were affected by the disciplinary proceedings (Doc. 89). On July 7, 2011, respondent filed a brief addressing the Court's concerns (Doc. 91). Respondent argued that as petitioner was sentenced pursuant to the District of Columbia Code, he is subject to that district's sentencing codes. Petitioner was sentenced to life imprisonment with a 25 year mandatory minimum (Id.).
Respondent maintained that as a result of his sentence, petitioner can only have 1200 days of SGTC which are given automatically and cannot be lost as a result of disciplinary hearings (Id.). Respondent argues that petitioner's life sentence has not been affected by his disciplinary hearings and, although petitioner presumably lost SGTC as a result of the hearings, the time was never deducted from his 1200 SGTC (Id.). Petitioner filed a response to that briefing disputing respondent's claim that he did not accumulate SGTC and that his SGTC were not affected by his disciplinary sanctions (Docs. 100 & 102).
Respondent was ordered to file a reply as to the issue of SGTC. Respondent did so, arguing that as a prisoner serving an indeterminate sentence from the District of Columbia, petitioner did not earn SGTC (Doc. 105). Respondent acknowledged that documents did show that petitioner had forfeited good time but those numbers did not affect his parole eligibility date which remained the same and pointed to exhibits which showed his Statutory Good Time Rate as "0" or "N/A" (Id.).
Given the confusion created by the issue regarding petitioner's ability to earn SGTC and whether petitioner had a liberty interest in such credits, the Court appointed counsel for petitioner to address the issues at an evidentiary hearing (Doc. 114). Specifically, counsel was appointed to provide evidence on the issue of whether petitioner had a liberty interest in his 1200 days of good time credit and whether such credits could be lost as a result of a disciplinary sanction. Subsequent to that appointment, respondent filed the current motion to dismiss (Doc. 118).
In the motion to dismiss respondent informs the Court that petitioner's SGTC, which were reportedly taken away from petitioner as a result of his disciplinary proceedings, have been restored (Doc. 118). Respondent points to an Inmate Disciplinary Data Chronological Disciplinary Record (Doc. 118 Exs. 1 & 2) from October 18, 2011, showing that the forfeiture of SGTC he had received as part of the disciplinary hearings has been deleted. In essence, the records now reflect that petitioner did not lose SGTC as a result of the disciplinary incidents. Thus, respondent argues, petitioner's SGTC had been restored and the records changed to reflect that he had never lost good time as a result of the disciplinary hearings at issue (Doc. 118). Respondent further argues that with petitioner having not lost any SGTC as a result of the disciplinary hearings, petitioner no longer has any liberty interest in the disciplinary reports (Id.).*fn1
Petitioner filed a response to the motion to dismiss, arguing that his SGTC has not been restored (Doc. 147). Petitioner first disputes respondent's claim that petitioner does not have a liberty interest in his good time credit. Petitioner points out that he can earn and lose more than 1200 days SGTC and offers exhibits showing that he has earned more than 1200 SGTC. Petitioner's Sentencing Monitoring Good Time Data sheet from November 2, 2011, reflected that he had 1244 days of good time credit (Doc. 147 Ex. A). Further, the net of petitioner's forfeitures, withholdings, and restorations for December 12, 2011, were 1271 days (Doc. 147 Ex. C). Net forfeitures, withholdings, and restorations for March 15, 2012, were 1041 days (Doc. 147 Ex. D). The March 15, 2012, data sheet was produced after petitioner's SGTC was purportedly restored.
Petitioner argues that this is proof that his SGTC has not been restored as suggested by respondent and that he continues to loss good time credits (Doc. 147). Petitioner argues that given the issues with restoring his SGTC, the main issue of due process rights violations can not be moot or avoided because his loss of good time is capable of repetition, in that the SGTC can be restored and then forfeited again because the disciplinary reports remain on record (Id.).
Respondent has filed a reply to petitioner's response (Doc. 148). Respondent points to petitioner's exhibits B and D showing that petitioner's forfeiture of SGTC from the disciplinary hearings at issue have been wiped out and thus his good time stemming from those dates has been restored (See Doc. 147 Exs. B and D; Doc. 148, Chart at p. 2). Respondent argues that any liberty interest, and thus due process rights, petitioner had in the ...