                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-17-2005

Mitchell v. Romine
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4224




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Recommended Citation
"Mitchell v. Romine" (2005). 2005 Decisions. Paper 396.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/396


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                                                                     NOT PRECEDENTIAL

                           UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT

                                          NO. 04-4224
                                       ________________

                                    WALLACE MITCHELL,

                                                 Appellant

                                                 v.

                                   DONALD ROMINE
                        _______________________________________

                       On Appeal From the United States District Court
                            For the Middle District of Pennsylvania
                                  (D.C. Civ. No. 01-cv-01788)
                       District Judge: Honorable Christopher C. Conner
                       _______________________________________

                          Submitted Under Third Circuit LAR 34.1(a)
                                      October 14, 2005

                 Before: SLOVITER, BARRY AND FISHER, Circuit Judges.

                                   (Filed: October 17, 2005)
                                  _______________________

                                         OPINION
                                  _______________________

PER CURIAM

       Wallace Mitchell, a District of Columbia offender in federal custody,1 appeals the

denial of his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Finding no

error, we will affirm.

       1
           Mitchell is serving thirty-five years to life imprisonment for murder.
                                              I.

       Mitchell filed a pro se amended § 2241 petition challenging approximately twenty-

two disciplinary reports issued against him while he was incarcerated at USP-Lewisburg

in Pennsylvania as well as the accuracy of the information about his disciplinary history

contained in his “Security/Designation Sheet.” Mitchell sought to have the reports

expunged from his record, and to have his good-time credits restored.

       The Magistrate Judge found that Mitchell did not exhaust administrative remedies

as to sixteen of the disciplinary reports. Concerning the six claims Mitchell properly

exhausted, the Magistrate Judge found that the disciplinary hearings comported with the

due process standard set forth in Wolff v. McDonnell, 418 U.S. 539 (1974). Accordingly,

the Magistrate Judge recommended dismissing the unexhausted claims, and denying on

the merits the exhausted claims. The District Court adopted the Report and

Recommendation, finding claims one, two, five, six, seven, eight, nine, ten, twelve,

fifteen, seventeen, eighteen, nineteen, twenty, twenty-one, and twenty-two were

unexhausted and also inexcusably defaulted. The court rejected on the merits the

remaining exhausted claims. This appeal followed.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the

District Court’s denial of habeas corpus relief and its interpretation of the applicable

statutes. Gerbier v. Holmes, 280 F.3d 297, 302 (3d Cir. 2002).

       As to claims five through ten and twelve, Mitchell contends that the District Court

erred in finding that he did not properly exhaust administrative remedies by filing his


                                              2
appeal directly with the Regional Director. See Br. at 8, 18. Mitchell fails to recognize,

however, that these disciplinary decisions were issued by the Unit Disciplinary

Committee (“UDC”), not the Disciplinary Hearing Officer (“DHO”), and thus he was not

permitted to appeal directly to the Regional Director. See 28 C.F.R. §§ 541.15, 541.19,

542.14(d)(2). Therefore, the District Court properly held that Mitchell failed to meet the

exhaustion requirements as to these claims. See Moscato v. Fed. Bureau of Prisons, 98

F.3d 757, 760-62 (3d Cir. 1996).

       Mitchell next contends that the District Court erred in finding that the

administrative appeal for claim fifteen was untimely filed. See Br. at 28. An inmate may

appeal a Warden’s response to the Regional Director “within 20 calendar days of the date

the Warden signed the response.” 28 C.F.R. § 542.15(a) (emphasis added). The record

reflects that Mitchell filed his appeal more than thirty days after the date of the response.

Furthermore, Mitchell has not demonstrated a valid reason or “cause” to excuse the

untimely filing. See id. Therefore, we agree with the District Court that the

administrative appeals were untimely, and thus correctly dismissed. See Moscato, 98

F.3d at 760-62.2

       Mitchell also contends that as to the six exhausted claims, he was denied

procedural due process because: (1) he was not given an adequate opportunity to present

witnesses at his disciplinary hearings; (2) the DHO was not impartial; (3) the DHO’s


       2
        Inasmuch as the District Court properly concluded that Mitchell’s unexhausted
claims are also procedurally defaulted, the proper course was a dismissal of the claims on
the merits rather than dismissal without prejudice. See Moscato, 98 F.3d at 762.

                                              3
decision did not meet the criteria for presentation of “some” evidence; and (4) the staff

member assigned to assist Mitchell in preparing for the disciplinary hearings was not

Mitchell’s choice and did not adequately represent Mitchell. See Br. at 21-28, 29. We

reject these contentions. The record reflects that Mitchell received: (1) written notice

well in advance of the hearings; (2) a full and fair opportunity to present witnesses and

documentary evidence; (3) assistance from a staff member in presenting his defense,

preparing a statement, and appearing on Mitchell’s behalf; (4) a sufficiently impartial

tribunal; and (5) a written statement by the DHO or UDC as to the evidence relied on and

the reasons for the decisions. See Wolff, 418 U.S. at 563-572. Moreover, Mitchell’s

argument that he is entitled to select the staff member to represent him in a disciplinary

hearing lacks merit. See 28 C.F.R. § 541.17(b); Wolff, 418 U.S. at 570. Finally, for each

incident, there was sufficient evidence presented to support the UDC or the DHO’s

conclusions, including, inter alia, Mitchell’s admissions, eyewitness accounts, and

documentary evidence. See Wolff, 418 U.S. at 564-65; Superintendent v. Hill, 472 U.S.

445, 455-56 (1985). Therefore, the District Court properly rejected these due process

claims on the merits.

       Finally, we reject Mitchell’s contention that as an inmate convicted in the District

of Columbia, the Bureau of Prisons had no authority to take away his good-time credits.

See Field v. Keohane, 954 F.2d 945, 949-51 (3d Cir. 1992).




                                             4
                                           III.

      We have fully considered the remaining arguments raised by Mitchell on appeal,

and find that these arguments lack merit and warrant no further discussion. For the

foregoing reasons, we will affirm the District Court’s judgment.




                                            5
