United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY DISTRICT JUDGE
Brandon Drew Tankersly, a federal prisoner incarcerated at
the Federal Correctional Institution in Oxford, Wisconsin,
seeks post-conviction relief under 28 U.S.C. § 2241. In
his petition to this court, Tankersly seeks to challenge the
Bureau of Prison's (“BOP”) decision to revoke
41 days of good time credit for possession of narcotics. This
petition is before the court for preliminary review pursuant
to Rule 4 of the Rules Governing Section 2254 Cases, which
applies to petitions not brought under § 2254.
See Rule 1(b), Rules Governing Section 2254 Cases.
Since it is unclear whether Tankersly has stated a claim for
relief, the court will direct Tankersly to supplement his
petition to provide more information about the revocation (or
possible reinstatement) of his good time credit.
petition contains very little information, but this much is
clear: Tankersly is challenging a June 22, 2017, finding by a
Disciplinary Hearing Officer (“DHO”) that he was
guilty of Possession of Narcotics. It appears that the DHO
revoked 41 days of good time credit as a punishment for that
guilty finding, which Tankersly appealed.
further attached the ruling on his appeal to the petition.
(Dkt. #1-1.) In that ruling, the Regional Director recites
Tankersly's assertions that: (1) he was smoking tobacco;
(2) his urine tested negative; (3) he passed a sobriety test;
(4) the paper was not tested in his presence; (5) his request
to have the substance sent to a lab was denied; and (6) the
officer became aggressive with him. She further writes that
his allegations were referred for review, “[a]
procedural error was discovered, ” and the incident
report would be remanded to the DHO for corrective action.
Unfortunately, Tankersly does not indicate what occurred on
remand, and in particular, whether the DHO ultimately
reinstated his 41 days of good time credit.
hearings that deprive an inmate of good-time credit -- and as
a result, increase the inmate's period of incarceration
-- may serve as a basis for requesting habeas
relief. See Walker v. O'Brien, 216 F.3d 626, 629
(7th Cir. 2000); Waletzki v. Keohane, 13 F.3d 1079,
1080 (7th Cir. 1994). Still, § 2241 states that the
“writ of habeas corpus shall not extend to a prisoner
unless . . . [h]e is in custody in violation of the
Constitution or laws or treaties of the United States.”
assertions implicate his rights under the Fourteenth
Amendment's due process clause. A disciplinary decision
that results in the loss of good-time credits must provide
the inmate with the following procedural safeguards to adhere
to due process: (1) advance written notice of the charges;
(2) an opportunity, taking into account the institution's
safety concerns to call witnesses and present evidence in
this or her defense; (3) a written statement from the
factfinder identifying the evidence on which they relied and
the reason(s) for the decision; and (4) findings supported by
“some evidence” in the record.
Superintendent, Mass. Corr. Inst., Walpole v. Hill,
472 U.S. 445, 454 (1985).
does not allege -- and the facts outlined in his petition do
not suggest --that he was denied notice of the charges or a
written statement from the DHO following the disciplinary
hearing. However, his allegations support an inference that
he was denied the chance to gather and submit evidence in
support of his own defense, and that ultimately no evidence
supported the revocation of his good time credits. To be
sure, the Court of Appeals for the Seventh Circuit has
described the “some evidence” requirement as a
“meager threshold.” Scruggs v. Jordan,
485 F.3d 934, 941 (7th Cir. 2007). In Scruggs, the
court acknowledged that even though the evidence must bear
“some indicia of reliability, ” once that showing
has been made, courts do not reverse results of the
disciplinary official. Id. Furthermore, courts may
only consider “exculpatory evidence to the extent it
undermines the reliability of the evidence” used
against the prisoner. Id. (citing Meeks v.
McBride, 81 F.3d 717, 720 (7th Cir. 1996)).
said, the apparent resolution of Tankersly's appeal shows
that the Regional Director accepted his assertions of
“procedural error, ” causing the Regional
Director to send the incident report back to the DHO for
corrective action. Still, Tankersly does not indicated on
remand whether (1) he was afforded the chance to put forth a
defense or a guilty finding again resulted
unsupported by the “some evidence” requirement.
Equally important, Tankersly does not indicate whether the
DHO ultimately reinstated good time credit on remand, and if
not, on what basis the 41 days of good time credit was not
reinstated, much less whether that decision was upheld on
appeal. Absent this information, Tankersly has neither stated
a denial of due process, nor a basis for relief.
Petitioner Brandon Tankersly may have until July 19,
2019, to supplement his petition for a writ of
habeas corpus (dkt. #1) with the ...