Krieg v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Eric Krieg
v. Civil No. 22-cv-533-JL-AJ
Warden, FCI Berlin
REPORT AND RECOMMENDATION
Eric Krieg, proceeding pro se, filed a Petition for a writ
of habeas corpus, pursuant to 28 U.S.C. § 2241, challenging a
disciplinary decision and sanctions he received at the Federal
Correctional Institute in Berlin, New Hampshire (“FCI Berlin”),
where Mr. Krieg was incarcerated at the time he filed this
action. The respondent, the FCI Berlin Warden, moves to dismiss.
See Doc. No. 10. Mr. Krieg objects to the Warden’s motion and
moves for summary judgment in his favor.1 See Doc. Nos. 13, 14.
The motions are referred to the undersigned Magisrate Judge for
a report and recommendation as to their disposition. See LR
72.1; U.S.C. § 636(b)(1). For the following reasons, the
District Judge should grant the respondent’s motion to dismiss
the petition and deny Mr. Krieg’s motion for summary judgment.
1 Mr. Krieg filed one document which the Court docketed
twice, as an objection to the motion to dismiss (Doc. No. 13)
and as Mr. Krieg’s motion for summary judgment (Doc. No. 14).
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Background
According to Mr. Krieg’s filings in this matter, and the
documents attached thereto, in April 2022, Mr. Krieg mailed a
completed Voter Registration Application (“VRA”) form to the
District of Columbia Board of Elections in Washington, D.C. On
the VRA form, Mr. Krieg wrote that his address was 1600
Pennsylvania Avenue NW in Washington, D.C., which is the address
of the White House. The mailing was flagged before it left the
prison, and was reviewed by Special Investigative Services
(“SIS”) Technician G. Richards, who completed an Incident Report
concerning the mailing. That Incident Report stated:
On April 8, 2022, at approximately 9:45 AM, while
reviewing outgoing postal mail that had been flagged
for further review . . ., I, SIS Technician G.
Richards, inspected a letter addressed from Inmate
KRIEG, ERIC, Reg. No. 17161-027, being sent to D.C.
Board of Elections in Washington, D.C. The envelope
contained a completed “Voter Registration Application”
form containing personally identifiable information,
specific to KRIEG. The form contains a warning
statement: “If you sign this statement even though you
know it is untrue, you can be convicted and fined up
to $10,000 and/or jailed for up to five years.”
Inmate KRIEG’s signature is present after this warning
and is dated 4-6-22. One of the criteria noted in the
affirmation section of the voter declaration is “My
residence in the District of Columbia is at the
address (#4) above,” which KRIEG lists “Address of
Residence in DC” as “1600 Pennsylvania Ave. NW.” 1600
Pennsylvania Ave. NW in Washington, D.C. is the
physical location of the White House. 52 U.S. Code §
10307(c), section (c) states the following:
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“(c) False information in registering or voting;
penalties[.] Whoever knowingly or willfully
gives false information as to his name, address
or period of residence in the voting district for
the purpose of establishing his eligibility to
register or vote, or conspires with another
individual for the purpose of encouraging his
false registration to vote or illegal voting, or
pays or offers to pay or accepts payment either
for registration to vote or for voting shall be
fined not more than $10,000 or imprisoned not
more than five years, or both . . .”
Falsification of information contained on the Voter
Registration Application, in this instance falsifying
the location of residency, is a felony offense under
52 U.S. Code § 10307(c). Inmate KRIEG does not
currently reside at 1600 Pennsylvania Ave. NW. . . .
Apr. 8, 2022 Incident Report (Doc. No. 1-1, at 1). SIS
Technician Richards charged Mr. Krieg with violations of Bureau
of Prisons (“BOP”) Prohibited Acts Code (“Code”) 196, criminal
mail abuse, and Code 313, lying or 30 providing a false
statement to a staff member. See id.
A Disciplinary Hearing Officer (“DHO”) held a hearing on
the disciplinary charges on May 2, 2022. Mr. Krieg waived his
right to a staff representative and witnesses, and opted to
“neither admit[] or den[y] the charges and elected not to
comment.” May 26, 2022 DHO Report (Doc. No. 1-1, at 3). After
the hearing, the DHO found that Mr. Krieg violated both Code 196
and Code 313. In making that decision, the DHO relied on SIS
Technician Richards’s written account in the Incident Report,
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the VRA form completed and signed by Mr. Krieg, and the envelope
in which the VRA form was sent, addressed to the D.C. Board of
Elections. The DHO then imposed the following sanctions: the
disallowance of forty-one days of earned good conduct time
(“GCT”), the forfeiture of twenty-eight days of non-vested GCT,
and a one-year loss of email privileges for violating Code 196,
and a three-month loss of telephone privileges for violating
Code 313. See DHO Report (Doc. No. 1-1, at 9). Mr. Krieg’s
appeal of the DHO’s decision was denied.2
Mr. Krieg then filed his petition here, arguing that there
was no evidence before the DHO that he violated either Code 196
or Code 313, and that 52 U.S.C. § 10307(c) does not apply to his
VRA. The Warden moves to dismiss the petition, addressing Mr.
Krieg’s arguments challenging the Code 196 decision. Mr. Krieg
objects to the Warden’s motion and moves for summary judgment in
his favor.
Discussion
I. Mr. Krieg’s Motion for Summary Judgment
A. Procedural Background
2 There is no dispute that Mr. Krieg exhausted his available
administrative remedies to appeal the DHO finding and sanctions.
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Mr. Krieg filed a combined document that included both his
objection to the Warden’s motion to dismiss and a motion for
summary judgment. Generally, his arguments in the
objection/motion are directed to the Warden’s motion to dismiss.
See Doc. No. 14, at 2. One exception, however, is Mr. Krieg’s
assertion that he is entitled to judgment in his favor because
the Warden, in his motion to dismiss, did not argue against his
challenge to the finding that he violated Code 313. Therefore,
the court considers Document No. 14 as Mr. Krieg’s motion for
summary judgment, seeking judgment in his favor on the charge
and sanctions for violation of Code 313.
B. Challenging Disciplinary Proceedings in § 2241
Petition
A § 2241 petition is the vehicle for a petitioner to
challenge the validity of his confinement, “or to particulars
affecting its duration.” Muhammad v. Close, 540 U.S. 749, 750
(2004) (per curiam) (citing Preiser v. Rodriguez, 411 U.S. 475,
500 (1973)). Mr. Krieg may proceed under § 2241, therefore, to
challenge a disciplinary sanction that impacts the fact or
duration of his confinement, such as disallowance of GCT.
Disciplinary sanctions that have no impact on the fact or
length of confinement cannot be challenged under § 2241. See
Reynolds v. Williamson, 197 F. App’x 196, 198 (3d Cir. 2006).
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The sanction imposed for Mr. Krieg’s violation of Code 313 was
the temporary loss of telephone privileges. Because that
sanction did not affect the validity or duration of his
confinement, Mr. Krieg’s challenge to the DHO’s findings and
sanction regarding his violation of Code 313 does not provide
grounds for habeas relief through a § 2241 petition. See id.;
Crosby v. Kallis, No. 22-1416, 2023 U.S. App. LEXIS 2765, at *5,
2023 WL 1514460, at *2 (7th Cir. Feb. 3, 2023) (section 2241
“authorizes challenges only to sanctions affecting the fact or
duration of imprisonment”); Hall v. Warden Canaan USP, 858 F.
App’x 37, 38 (3d Cir. 2021) (disciplinary violation which
resulted in sanction of temporary disciplinary segregation and
temporary loss of commissary privileges, but not loss of good
conduct time, not subject to challenge under § 2241). For that
reason, the District Judge should deny Mr. Krieg’s motion for
summary judgment challenging the guilty finding and sanction he
received in the disciplinary proceedings concerning his Code 313
violation.
II. Warden’s Motion to Dismiss
The Warden moves to dismiss on the grounds that Mr. Krieg
provided an “obviously false” address on the VRA he was sending
through the mail to the Washington, D.C. Board of Elections,
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which constituted illegal conduct under 52 U.S.C. § 10307(c),
which prohibits including a false address when registering to
vote in a federal election. See Doc. No. 10, at 1. In response,
Mr. Krieg argues that his due process rights were violated by
the disciplinary findings and sanctions on Code 196, as there
was insufficient evidence before the DHO that he violated Code
196, as it is not clear that the DHO considered the “federal
election” element of § 10307(c). He further argues that he had a
good faith understanding that, by providing the address closest
to the place where he intends to camp as a homeless person upon
his release from incarceration, he did not provide a false
address on his VRA form.
A. Motion to Dismiss Standard
The court may dismiss a § 2241 petition if the petitioner’s
allegations, taken as true, do not state a claim for relief. See
Fed. R. Civ. P. 12(b)(6); Burt v. Bd. Of Trs. Of Univ. of R.I.,
84 F.4th 42, 50 (1st Cir. 2023); Diallo v. Warden, FCI Berlin,
No. 23-cv-439-LM-TSM, 2024 U.S. Dist. LEXIS 129925, at *4, 2024
WL 3502997, at *2 (D.N.H. May 7, 2024), R&R approved, 2024 U.S.
Dist. LEXIS 128334, at *1, 2024 WL 3496854, at *1 (D.N.H. July
22, 2024); Levine v. U.S. Dep't of Fed. Bureau of Prisons, No.
20-cv-11833-ADB, 2021 U.S. Dist. LEXIS 32202, at *3, 2021 WL
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681689, at *2 (D. Mass. Feb. 22, 2021). When considering a
motion to dismiss a § 2241 petition, the court may consider, in
addition to the petition, documents submitted with the petition
and other matters of public record. See Burt, 84 F.4th at 50;
Diallo, 2024 U.S. Dist. LEXIS 129925, at *4-*5, 2024 WL 3502997,
at *2.
B. Due Process Standard
In his motion to dismiss, the Warden argues that Mr. Krieg
was afforded the minimum due process to which he was entitled
during his disciplinary proceedings. Prisoners have a protected
liberty interest in GCT which affords them certain due process
protections in disciplinary proceedings. See Sup't, Mass. Corr.
Inst., Walpole v. Hill, 472 U.S. 445, 453 (1985); Wolff v.
McDonnell, 418 U.S. 539, 557 (1974).
In addition, to satisfy a prisoner’s due process rights in
a disciplinary proceeding which resulted in the loss of GCT, a
hearing officer's finding must be supported by “some evidence in
the record.” Hill, 472 U.S. at 454 (“We now hold that revocation
of good time does not comport with ‘the minimum requirements of
procedural due process’ unless the findings of the prison
disciplinary board are supported by some evidence in the
record.” (citation omitted)). The “some evidence” requirement is
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minimal; only a “modicum of evidence” is needed, and the
standard is satisfied if “there is any evidence in the record
that could support the conclusion reached by the disciplinary”
officer. Id. at 450, 455-56. “Ascertaining whether this standard
is satisfied does not require examination of the entire record,
independent assessment of the credibility of witnesses, or
weighing of the evidence.” Id. at 455.
Here, Mr. Krieg does not contend that he was denied
procedural due process in his disciplinary proceedings.3
Instead, he disputes that he committed the conduct prohibited by
Code 196, and alleges that there was insufficient evidence
before the DHO to find him guilty of that violation.
Specifically, Mr. Krieg argues, in response to the respondent’s
motion to dismiss, that: (1) there was no evidence before the
DHO that Mr. Krieg intended to vote in a federal election, a
3 The minimum requirements of due process in prison
disciplinary proceedings are (1) written notice of the charges
at least 24 hours before the disciplinary hearing; (2) the
opportunity to call witnesses and present documentary evidence
(when doing so is not unduly hazardous to prison safety and
institutional goals); (3) a hearing before an impartial
decisionmaker; and (4) and a written statement as to the
evidence the hearing officer relied on and the reasons for the
officer's decision. See Wolff, 418 U.S. at 563-71; Surprenant v.
Rivas, 424 F.3d 5, 16 (1st Cir. 2005); Ali v. Warden, Fed. Corr.
Inst., Berlin, N.H., Case No. 18-cv-896-JL, 2020 U.S. Dist.
LEXIS 48237m at *6-*7, 2020 WL 1322542, at *3 (D.N.H. Mar. 20,
2020).
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required element of the criminal offense of § 10307(c); and (2)
because Mr. Krieg believed in good faith that he was providing
the appropriate address on the VRA, there was no evidence that
he engaged in “willful” or “intentional” conduct, the mens rea
required by 52 U.S.C. § 10307(c).
C. Federal Election Requirement
Code 196 prohibits the “[u]se of the mail for an illegal
purpose or to commit or further a Greatest Severity category
prohibited act.”4 28 C.F.R. § 541.3, Table 1. In the challenged
disciplinary proceedings, the DHO found Mr. Krieg used the mail
for the illegal purpose of using a false address to register to
vote in Washington, D.C., in violation of § 10307(c). That
statute states:
Whoever knowingly or willfully gives false information
as to his name, address or period of residence in the
voting district for the purpose of establishing his
eligibility to register or vote, or conspires with
another individual for the purpose of encouraging his
false registration to vote or illegal voting, or pays
or offers to pay or accepts payment either for
registration to vote or for voting shall be fined not
more than $10,000 or imprisoned not more than five
years, or both: Provided, however, That this provision
shall be applicable only to general, special, or
4 Greatest Severity category prohibited acts are listed in
the BOP Prohibited Acts Code, 28 C.F.R. § 541.3, Table 1.
Because Mr. Krieg was charged with using the mail for an illegal
purpose, it is not necessary to address whether the evidence at
the disciplinary hearing “further[ed] a Greatest Severity
category prohibited act.”
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primary elections held solely or in part for the
purpose of selecting or electing any candidate for the
office of President, Vice President, presidential
elector, Member of the United States Senate, Member of
the United States House of Representatives, Delegate
from the District of Columbia, Guam, or the Virgin
Islands, or Resident Commissioner of the Commonwealth
of Puerto Rico.
52 U.S.C. § 10307(c) (emphasis in original).
Mr. Krieg asserts that both the Incident Report and the DHO
Report improperly failed to include the portion of § 10307(c)
that limits the conduct prohibited to the provision of false
information for the purposes of registering to vote in an
election for a federal office. Mr. Krieg alleges that nothing in
the record before the DHO includes any evidence that he was
registering to vote for the purpose of voting in a federal
election.
In the District of Columbia, elections for federal and
local offices are part of the same integrated system. See D.C.
Code § 1-1001.01, et seq. When a VRA is submitted to a voting
district, where such an integrated system exists, the “federal
election” requirement of § 10307(c) is satisfied. Cf. United
States v. Smilowitz, 974 F.3d 155, 160 (2d Cir. 2020) (where a
State’s “unitary registration process” renders a registrant
qualified to vote “in any local, state, or federal election,”
fraud committed while registering to vote in that State falls
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under the purview of § 10307(c)); United States v. Robinson, 813
F.3d 251, 255 (6th Cir. 2016). Accordingly, whether or not the
DHO specifically considered the federal office requirement for
illegality under § 10307(c), as a matter of law, that issue is
resolved by the District of Columbia Code, which integrates
local and federal regulations into a single system.
2. Validity of Offense Under § 10307(c)
Mr. Krieg claims that 52 U.S.C. § 10307(c) “has never been
enforced against anyone” and that, by implication, “it is not an
actual offense.” Doc. No. 13, at 5. Mr. Krieg further argues
that although the incident for which he was disciplined was
forwarded to an Assistant United States Attorney and the Federal
Bureau of Investigation, those offices declined to prosecute him
for a violation of § 10307(c), which demonstrates that he did
not actually commit such a violation. Mr. Krieg is mistaken on
both points.
First, Mr. Krieg is incorrect in his assertion that there
has never been a criminal prosecution or conviction for a
violation of § 10307(c). Despite his contention that he could
not find such a case in the LEXIS database, the Court has
determined that such cases exist. See, e.g., Smilowitz, 974 F.3d
at 156 (defendant pleaded guilty to violation of § 10307(c));
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Robinson, 813 F.3d at 254 (jury convicted defendants of
violating 10307(c)); United States v. Smith, CRIMINAL ACTION No.
21-152, 2023 U.S. Dist. LEXIS 26244, at *1, 2023 WL 2043307, at
*1 (E.D. La. Feb. 16, 2023) (defendant pleaded guilty to
violation of § 10307(c) and was sentenced to four months in
prison).
Second, “the decision whether or not to prosecute, and what
charge to file or bring before a grand jury, generally rests
entirely in [the prosecutor]’s discretion.” Bordenkircher v.
Hayes, 434 U.S. 357, 364 (1978) (footnote omitted); see also
United States v. Armstrong, 517 U.S. 456, 463 (1996). The
decision whether or not to prosecute, even where probable cause
exists to bring a prosecution, “is ill-suited to judicial
review,” as such a decision may be based on “the strength of the
case, the prosecution’s general deterrence value, the
Government’s enforcement priorities, and the case’s relationship
to the Government’s overall enforcement plan.” Wayte v. United
States, 470 U.S. 598, 607 (1985). Accordingly, the Court will
not deduce that Mr. Krieg’s conduct did not violate a criminal
statute solely on the basis that the conduct was not prosecuted
criminally.
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3. “Some Evidence” of Violation of Code 196
The DHO found that Mr. Krieg gave a false address on the
VRA, conduct made illegal by § 10307(c). The DHO did so by
finding that Mr. Krieg completed the VRA form using 1600
Pennsylvania Avenue N.W., Washington, D.C., the address of the
White House, as his address. The DHO found that because Mr.
Krieg does not reside at the White House, as evidenced, in part,
by his use of FCI Berlin as the return address on the envelope
he used to mail his VRA, that his address information on the VRA
form was false.
Mr. Krieg argues in his objection that the address was not
false, because he had a good-faith belief, based in part on a
BOP memo entitled “Inmate Voting Rights,” that he could register
to vote in Washington, D.C., although he does not currently have
a residential address there, if he intends to “return” to
Washington, D.C. upon his release from prison, by using his last
known address. Mr. Krieg asserts that he has no home to return
to upon his release from incarceration, and that he believed
that his “last known address” was the address closest to the
address where he intends to camp, as a homeless person, upon his
release, which he states was in front of the White House,
located at 1600 Pennsylvania Ave. NW in Washington, D.C.
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Mr. Krieg’s explanation of the veracity of his use of the
White House address fails on several grounds. Primarily, while
Mr. Krieg argues all of these facts in his petition and/or
objection/motion for summary judgment, none of the facts upon
which he relies to support his argument here was before the DHO
at his disciplinary hearing. Mr. Krieg chose not to make any
comment during the DHO hearing on his disciplinary violation,
provide a written statement explaining the facts or legal theory
he argues here, call witnesses, or submit any other evidence
during the disciplinary proceedings. And, as noted above, Mr.
Krieg does not allege that he was prevented from putting any of
this information into evidence. According to the DHO Report:
[Mr. Krieg’s] due process rights were reviewed and
reviewed with [him] by the DHO and [he] stated [he]
understood [his] rights. The DHO noted that [Mr.
Krieg] did not receive a copy of [his] incident report
within 24 hours as established by policy. The DHO
noted the reason for the delay was due to the report
being referred to the AUSA/FBI for possible
prosecution. The DHO noted that the AUSA/FBI declined
the case on May 2, 2022. The DHO noted that the report
was released for administrative sanctions on May 2,
2022. The DHO did not feel the delay of this incident
report impeded any undue hardship in [Mr. Krieg’s]
ability to defend [him]self at th[e DHO] hearing. The
DHO notes [Mr. Krieg] did not request a staff
representative nor did [he] request any witnesses. The
DHO read aloud the incident report. At no time during
the DHO hearing did [Mr. Krieg] raise any procedural
issue request a witness or present written
documentation as evidence.
DHO Report (Doc. No. 1-1, at 5).
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As explained above, Mr. Krieg’s due process rights are
satisfied if the DHO’s finding that he violated Code 196 was
based on “some evidence” in the record before the DHO. According
to the DHO Report, the DHO considered: SIS Technician Richards’s
April 8, 2022 Incident Report; the envelope containing the VRA
which was addressed to the D.C. Board of Elections in
Washington, D.C., and listed Mr. Krieg’s return address at FCI
Berlin; and the VRA form signed by Mr. Krieg which listed has
address as 1600 Pennsylvania Ave. NW, Washington, D.C. See DHO
Report (Doc. No. 1-1, at 5).
The evidence before the DHO included the VRA form signed by
Mr. Krieg and containing other information which identified the
document as having been prepared and mailed by Mr. Krieg,
listing his residence as 1600 Pennsylvania Ave. NW, Washington,
D.C., at a time when Mr. Krieg was incarcerated at FCI Berlin.
Nothing in the record demonstrated that Mr. Krieg had ever or
would ever live at that address.5 And despite having the ability
5 To be qualified to register to vote in the District of
Columbia, a person must have “a residence in the District for at
least 30 days preceding the next election.” D.C. Code § 1-
1001.02(2)(C); see also id. at § 1-1001.07(a). Mr. Krieg has not
shown that he will live at 1600 Pennsylvania Ave., by camping
nearby or otherwise, at least thirty days before the next
election. It is unlikely Mr. Krieg could make that showing as he
is serving a sentence of 348 months, which was imposed in 2019.
See Judgment, United States v. Krieg, Case No. 2:17-cr-00146-
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to do so, Mr. Krieg did not introduce or submit any evidence at
the hearing of his good-faith belief concerning his address, his
anticipated homelessness upon release, that he had ever resided
in the District of Columbia, that he intended to “return” to the
District of Columbia after his incarceration and camp in front
of the White House.
Accordingly, the DHO’s conclusion that Mr. Krieg used the
mail to register to vote in Washinton D.C. using a false
address, in violation of § 10307(c), was based on “some
evidence” in the record which was not contradicted by any
evidence before the DHO. The Court finds, therefore, that
neither the DHO’s finding that Mr. Krieg committed the charged
Code 196 violation, nor the sanction the DHO imposed, including
the loss of GCT, violated Mr. Krieg’s Fifth Amendment right to
due process. The District Judge, therefore, should grant the
respondent’s motion to dismiss the petition, and direct the
Clerk to close this case and enter judgment.
JVB-JEM (N.D. Ind. Apr. 5, 2019) (ECF No. 43). According to the
BOP online inmate locator, Mr. Krieg’s anticipated release date
is January 19, 2043. See Inmate Locator (bop.gov) (last visited
Aug. 6, 2024).
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Conclusion
For the foregoing reasons, the District Judge should grant
the Warden’s motion to dismiss (Doc. No. 10) Mr. Krieg’s § 2241
Petition, and deny Mr. Krieg’s motion for summary judgment (Doc.
No. 14). Any objections to this Report and Recommendation must
be filed within fourteen days of receipt of this notice.
See Fed. R. Civ. P. 72(b)(2). The fourteen-day period may be
extended upon motion.
Only those issues raised in the objection to this Report
and Recommendation are subject to review in the district
court. See Sch. Union No. 37 v. United Natl Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010). Any issues not preserved by such
objection(s) are precluded on appeal. See id. Failure to file
any objections within the specified time waives the right to
appeal the district court's order. See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
SO ORDERED.
______________________________
Andrea K. Johnstone
United States Magistrate Judge
August 13, 2024
cc: Eric Krieg, pro se
Matthew Hunter, Esq.
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