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Keller v. Cross

United States District Court, S.D. Illinois

July 14, 2014

LUKE KELLER, No. 08961-029 Petitioner,
v.
JAMES N. CROSS, et al.[1] Respondent.

MEMORANDUM AND ORDER

DAVID R. HERNDON, Chief District Judge.

Petitioner Luke Keller is currently incarcerated at the Federal Correctional Institution in Greenville, Illinois. He is serving a 247-month sentence for a drug offense. Keller has filed a petition pursuant to 28 U.S.C. § 2241 seeking restoration of 14 days of good conduct time that he lost in 2012 after a disciplinary conviction for fighting ( see Doc. 1, pp. 20-21). Keller principally argues that he was denied due process at this disciplinary hearing, in violation of the Fourteenth Amendment.

This case is now before the Court for a preliminary review of the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United States District Courts. Rule 4 provides that upon preliminary consideration by the district court judge, "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." Rule 1(b) of those Rules gives this Court the authority to apply the rules to other habeas corpus cases, such as this action under 28 U.S.C. § 2241.

The Petition

The events leading to petitioner Keller's disciplinary conviction occurred in September 2011, while he was housed at the Federal Correctional Institution in Oxford, Wisconsin. According to the petition, an inmate was using the prison law library's computer to search for information about inmates, such as who was cooperating with the government. That inmate was then trafficking in that information around the prison, leading to several inmates being attacked.

On September 13, 2011, as Keller was walking around the track, inmate Moline asked, "What's this I hear about your paperwork?" Before Keller could respond, Moline punched him in the face. Moline continued to punch Keller with a closed fist, while Keller attempted to defend himself, blocking punches with his open hands. Other inmates joined in, kicking and stomping on Keller. Both Moline and Keller were issued disciplinary reports for fighting in violation of 28 C.F.R. § 541.13 (offense code 201).

Keller contends that the fact that he, not Moline, was visibly injured evinces that he was the victim, not the aggressor and, therefore, he should not have been charged. Officer Decker rewrote the original report to add that he observed Keller striking Moline with closed fists. Keller, however, contends that surveillance videotape will show that Moline was the aggressor and that he, Keller, was merely on defense.

Keller complains that his originally scheduled disciplinary hearing was cancelled without explanation. His hearing did not occur until 43 days after the assault, in violation of 28 C.F.R. § 541. Keller asserts that, as a result, a "substitute" hearing officer conducted the hearing, which was not videotaped, and the warden's secretary was not in attendance as usual. The hearing officer's report concluded, "The greater weight of the evidence is with the statements of two staff members who say they observed both Keller and Moline throwing punches with closed fists." (Doc. 1, p. 20). In addition, the report notes that confidential information was used ( Id. ).

Had the hearing officer viewed the surveillance videotape and the pictures taken of the two inmates after the altercation, Keller argues, he would not have been found guilty of fighting. Keller appealed to the Regional Office, which responded that Keller had not requested the videotape be viewed. Keller argues that surveillance tapes should automatically be viewed, otherwise the prion is in the position of withholding exculpatory evidence. The administrative review process was exhausted, to no avail. The controlling principle being that self-defense is not a defense. Keller complains that the process was untimely at every step.

Keller's Section 2241 petition presents three issues:

1. The Bureau of Prisons ("BOP") acted with deliberate indifference in allowing inmates access to case law that reflects that inmates were confidential informants, and the failing to protect him and others from retribution, all in violation of the Eighth Amendment;
2. The BOP's assertion that inmates have no right to self-defense violates Keller's rights under the Fourth, Eighth and Fourteenth Amendments; and
3. Officer Decker's false statements about seeking Keller strike Moline with closed fists is false and triggers a liberty interest protected under the Due Process Clause of the Fourteenth ...

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