United States District Court, S.D. Indiana, Terre Haute Division
ANDRE L. MCRAE, Petitioner,
J.E. KRUEGER, Warden, Respondent.
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
AND DIRECTING ENTRY OF FINAL JUDGMENT
R. SWEENEY II, JUDGE
Bureau of Prisons inmate Andre L. McRae petitions for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241
challenging a disciplinary sanction imposed on May 9, 2018,
in prison disciplinary case number 3111264. For the reasons
explained in this Order, Mr. McRae's habeas petition must
inmates seeking to challenge the loss of good time credits in
prison disciplinary proceedings on due process grounds may
petition for a writ of habeas corpus pursuant to § 2241.
See Smith v. Bezy, 141 Fed.Appx. 479, 481 (7th Cir.
2005). In a prison disciplinary proceeding, the due process
requirement is satisfied with the issuance of advance written
notice of the charges, a limited opportunity to present
evidence to an impartial decision-maker, a written statement
articulating the reasons for the disciplinary action and the
evidence justifying it, and “some evidence in the
record” to support the finding of guilt.
Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S.
445, 454 (1985); Wolff v. McDonnell, 418 U.S. 539,
570-71 (1974); Piggie v. Cotton, 344 F.3d 674, 677
(7th Cir. 2003); Webb v. Anderson, 224 F.3d 649, 652
(7th Cir. 2000).
The Disciplinary Proceeding
McRae is currently confined at the United States Penitentiary
in Lewisburg, Pennsylvania. The conduct giving rise to the
discipline occurred while Mr. McRae was confined at the
United States Penitentiary (USP) in Terre Haute, Indiana. In
early 2018 prison officials conducted an investigation
centering on several phone calls made by Mr. McRae from the
prison. Using at least nine other inmates' phone
accounts, but not his own, Mr. McRae made several phone calls
to I.P., listed on prison records as his fiancé,
between February 1 and March 12, 2018. The calls were
recorded and studied by investigators, who concluded that Mr.
McRae was attempting to have synthetic marijuana mailed into
the prison on legal papers.
March 14, 2018, investigators interviewed Mr. McRae. After he
denied having anything sent into the prison, investigators
discussed the details of his phone calls with I.P. Mr. McRae
then stated, “I never even got any in here, but in all
honesty, I did try.” He was questioned about money
being sent by other inmates to I.P., to which Mr. McRae
explained as made from his “selling stamps.” On
April 11, 2018, SIS Tech. D. Jacks prepared incident report
number 3111264 charging Mr. McRae with a prison conduct
violation, Code 111A, for attempted introduction of any
narcotic, marijuana, drugs, or intoxicants. The concluding
paragraph of the report states:
Inmate McRae did instruct [I.P.] to purchase synthetic
marijuana through the internet and persuaded her to learn to
soak the synthetic into paper. She saturated thick 100%
cotton paper with the synthetic and allowed it to dry. She
then printed McRae's court documents on the paper using
Pacer.com. [I.P.] then attempted to send the documents into
the institution to McRae. Inmate McRae intended to sell the
synthetic for a profit.
Dkt. 1-1, p. 4; dkt. 10-4, p. 3.
McRae was given a copy of the incident report and advised of
his rights the same day. Three days later, on April 14, 2018,
Mr. McRae signed the form “Inmate Rights at Discipline
Hearing.” Dkt. 10-4, p. 8. On this day, and later on
April 30, 2018, Mr. McRae signed a “Notice of
Discipline Hearing before the (DHO).” Id., pp.
6-7. Prior to the hearing, Mr. McRae requested Officer Piper
as a staff representative and Officer Piper accepted the
disciplinary hearing was held on May 9, 2018. Mr. McRae was
advised of his right to have witnesses, but he did not
request any. During the hearing Mr. McRae made different
requests to have two other staff members represent him, but
the hearing officer denied those requests believing they were
made only to disrupt and delay the proceedings. The hearing
officer considered Mr. McRae's written statement, his
statements to investigators, the incident report, information
from the federal court PACER system, the SIS investigative
report, telephone records, and email logs. The hearing
officer found Mr. McRae guilty of attempted introduction of
drugs. Sanctions included the loss of forty-one days of good
McRae now brings this petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. The respondent Warden
raises a failure to exhaust administrative remedies defense.
McRae's first ground for habeas corpus relief asserts
that there was a “[f]ailure to establish a foundation
of guilt, and or proof that Petitioner actually committed the
offenses charged.” Restated, Mr. McRae challenges the
sufficiency of the evidence. He contends that (1) the
investigating officer's report is not supported by any
Bureau of Prisons manual guiding the hearing officer in
defining the “coded conversations” he had with
his fiancé; (2) the report fails to contain
parentheticals to explain what the ...