CLD-113                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 10-3979
                                       ___________

                                  ARTHUR MILLARD,
                                                Appellant

                                             v.

        H.L. HUFFORD; ATTORNEY GENERAL OF THE UNITED STATES
                  ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             (D.C. Civil No. 3:10-cv-01593)
                       District Judge: Honorable Edwin M. Kosik
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  February 10, 2011

               Before: RENDELL, FUENTES and SMITH, Circuit Judges

                            (Opinion filed:February 28, 2011)
                                       _________

                                        OPINION
                                        _________

PER CURIAM

       Arthur Millard appeals from the District Court’s order denying his habeas petition

filed pursuant to 28 U.S.C. § 2241. For the following reasons, we will summarily affirm

the District Court’s order. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.


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       Millard, a federal prisoner, was charged with a disciplinary violation of possession

of a weapon. According to the officer who wrote the incident report, he found a 9.5 inch

shank (a homemade knife) made of copper pipe in Millard’s cell inside a pair of socks in

a mesh laundry bag sitting on top of Millard’s bed. After a hearing, Millard was found

guilty and sanctioned to sixty days of disciplinary segregation, a fifty-four-day

disallowance of good conduct time, a 270-day forfeiture of non-vested good conduct

time, a loss of telephone and visiting privileges for eighteen months, and a loss of

commissary privileges for one year. After challenging the sanction through the Bureau of

Prison’s administrative process, Millard filed a § 2241 petition challenging the loss of

good conduct time. The District Court denied the petition, and Millard filed a timely

notice of appeal.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 28 U.S.C.

§ 2253(a). We exercise plenary review over the District Court’s legal conclusions and

review its factual findings for clear error. See Vega v. United States, 493 F.3d 310, 314

(3d Cir. 2007).

       In his habeas petition, Millard argued that his disciplinary proceedings violated his

due process rights because he did not have access to video footage of his cell that he

wished to utilize to prepare for his hearing. Millard, however, explicitly conceded in his

reply brief that he had no viable due process claim. To the extent that a due process

claim may have survived Millard’s concession, the claim fails. For substantially the

reasons outlined by the District Court, the process provided to Millard in the disciplinary

proceedings satisfied the requirements of Wolff v. McDonnell, 418 U.S. 539, 563-67

                                             2
(1974).

       The claims that Millard continues to pursue assert that Millard’s loss of good

conduct time was unfair and unreasonable. Millard argued that his punishment violated

the Fourteenth Amendment’s Equal Protection Clause and also seems to argue a violation

of the Eighth Amendment’s prohibition on cruel and unusual punishment. The District

Court did not frame the claims in terms of specific constitutional violations. Instead, the

District Court found that the sanctions “fall within the severity level set forth for the

prohibited act,” and accordingly denied the habeas petition. Because Millard’s claims

lack merit, the District Court properly denied them.

       The Equal Protection Clause requires that all people similarly situated be treated

alike. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). To make

out a successful claim, the petitioner must show purposeful discrimination that had a

discriminatory effect on the petitioner. See McCleskey v. Kemp, 481 U.S. 279, 292

(1987). Millard cited various cases in which inmates received less severe punishment for

the same violation committed by Millard (possession of a weapon), arguing that because

he received harsher punishment than other inmates for the same offense, the punishment

must have been the result of discrimination. Beyond such an inference, however, Millard

put forward no evidence that his punishment was the result of purposeful discrimination.

Millard’s argument falls well short of establishing the purposeful discrimination

necessary to make out an equal protection claim. See id. (explaining that purposeful

discrimination means “that the decisionmakers in [the claimant’s] case acted with

discriminatory purpose”). Accordingly, Millard’s equal protection claim lacks merit.

                                              3
       Millard’s argument that the punishment imposed was unreasonable could also be

construed as an Eighth Amendment claim challenging a punishment as “grossly

disproportionate to the severity of the crime.” Rummel v. Estelle, 445 U.S. 263, 271

(1980). To the extent that a loss of good conduct time could constitute an Eighth

Amendment violation, Millard’s punishment does not reach that level of severity.

Although the fifty-four-day disallowance of good conduct time and 270-day forfeiture of

non-vested good conduct time in Millard’s case was harsh punishment, it fell within the

range of acceptable punishments outlined by the applicable regulations. See 28 C.F.R.

§ 541.13.1 Accordingly, the punishment did not violate the Eighth Amendment and was

reasonable in light of the regulations guiding Discipline Hearing Officer punishment

decisions.2

       Based on the above, the District Court properly denied Millard’s habeas petition.

Because this appeal does not present a substantial question, we will summarily affirm the

District Court’s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.




       1
          Although the regulations state that the Discipline Hearing Officer (“DHO”) will
“ordinarily” disallow between 27-41 days of good conduct time, 28 C.F.R. § 541.13,
Table 3(Greatest Category)(B.1), the regulations also permit the DHO “to go above the
guideline range . . . for a greatly aggravated offense,” as long as the departure from the
guideline range is “documented and justified in the DHO report.” Id. at Table 4(1)(b.1).
The DHO explained in his report that the sanctions were imposed because “[p]ossession
of a weapon can lead to serious injury . . . and may escalate into a major confrontation
between inmates and staff . . . .” These are adequate reasons for imposing a harsher
punishment than that recommended by the regulations’ guidelines.
        2
          To the extent that Millard challenges the constitutionally of 28 C.F.R. § 541.13
    in his brief in support of appeal, the claim was never raised below and is accordingly
    waived on appeal.
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