Edward JoRodge Gladney v. Warden, FCC Coleman - USA II

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12096
Non-Argument Calendar
____________________
EDWARD JORODGE GLADNEY,
Petitioner-Appellant,
versus
WARDEN, FCC COLEMAN - USP II,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:18-cv-00517-RBD-PRL
____________________
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2 Opinion of the Court 20-12096
Before GRANT, LAGOA, and TJOFLAT, Circuit Judges.
PER CURIAM:
Edward Gladney, a federal prisoner proceeding
pro se, ap-
peals the District Court’s order dismissing his 28 U.S.C. § 2241
habeas corpus petition, which challenged the prison’s disciplinary
hearing officer’s (“DHO”) disallowance of twenty-seven days of
Gladney’s good conduct time credit due to Gladney engaging in a
sexual act. Gladney argues that he was deprived of due process
and that the DHO’s decision was not supported by sufficient evi-
dence. Alternatively, he argues, for the first time on appeal, that
the rule under which he was charged was unconstitutionally
vague.
I.
We review
de novo a district court’s denial of a § 2241 peti-
tion but review its factual findings for clear error.
Santiago-Lugo
v. Warden, 785 F.3d 467, 471 (11th Cir. 2015). Generally, we do
not consider issues raised for the first time on appeal.
Access
Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th
Cir. 2004).
Before revoking an inmate’s good conduct time or impos-
ing other disciplinary penalties, the Due Process Clause requires:
(1) written notice of the charges at least twenty-four hours before
a hearing, so that the inmate may prepare a defense; (2) an oppor-
tunity to call witnesses and present evidence in his defense; and
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20-12096 Opinion of the Court 3
(3) a written statement of the evidence relied on and the reasons
for the sanctions imposed.
Wolff v. McDonnell, 418 U.S. 539,
558–59, 94 S. Ct. 2963, 2976 (1974). The Bureau of Prisons
(“BOP”) codified the written statement requirement by providing
that the DHO must give the inmate a written report after holding
a disciplinary hearing. 28 C.F.R. § 541.8(h). The report must in-
clude the DHO’s decision, the evidence relied on in reaching that
decision, the sanctions imposed, and the reasons for the sanctions.
Id.
Due process also requires that the revocation of good con-
duct time must be supported by some evidence in the record.
Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454, 105 S.
Ct. 2768, 2774 (1985). The Supreme Court has elaborated on that
standard, stating that:
[T]he requirements of due process are satisfied if
some evidence supports the decision by the prison
disciplinary board to revoke good time credits. This
standard is met if there was some evidence from
which the conclusion of the administrative tribunal
could be deduced . . . 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.
Instead, the relevant question is whether there is any
evidence in the record that could support the con-
clusion reached by the disciplinary board.
Id. at 455–56, 105 S. Ct. at 2774 (citations and quotations omitted).
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4 Opinion of the Court 20-12096
The BOP’s policies on prohibited acts and available sanc-
tions are codified at 28 C.F.R. § 541.3. Under “Code 205,”
“[e]ngaging in sexual acts” is prohibited. 28 C.F.R. § 541.3 (Table
1). Notably, Code 205 does not define “sexual acts.”
Id. Under
“Code 409,” “[u]nauthorized physical contact (e.g., kissing, em-
bracing)” is prohibited.
Id. Sanctions—particularly, the disallow-
ance of good conduct time credit—are more severe for Code 205
violations than Code 409 violations.
See id.
II.
On May 25, 2017, an officer observed Gladney kissing and
embracing another inmate. This incident was also photographed
by a CCTV camera. That same day, the witnessing officer pro-
vided Gladney with an incident report charging Gladney with vio-
lating Code 205. On the next day, May 26, the case manager for
the incident advised Gladney of his rights at the upcoming hear-
ing. At this time, Gladney refused assistance from a staff repre-
sentative.
The DHO conducted the hearing on June 9, 2017. At the
hearing, Gladney stated that he had been coerced into kissing the
other inmate. He also submitted statements from two other wit-
nesses to support his claim of coercion. However, the case man-
ager informed the DHO that Gladney had communicated with
his two witnesses prior to the hearing to coordinate their story of
coercion. The DHO concluded that Gladney had violated Code
205 based on the incident report and the photographic evidence.
On July 31, 2017, Gladney was provided with a copy of the
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20-12096 Opinion of the Court 5
DHO’s report, which contained the evidence relied on by the
DHO, the sanctions imposed, and the reasons for the sanctions.
The DHO did not violate Gladney’s due process rights be-
cause Gladney received adequate notice of the charge, witnesses
provided statements on his behalf, and he received a written
statement describing the basis for the DHO’s determination.
See
Wolff, 418 U.S. at 558–59, 94 S. Ct. at 2976. Next, the DHO’s de-
cision was supported by sufficient evidence, considering the inci-
dent report and the photograph.
See Hill, 472 U.S. at 455–56, 105
S. Ct. at 2774. Furthermore, whether a charge under Code 409
would have been more appropriate was irrelevant for the District
Court’s determination of whether his discipline under Code 205
was supported by sufficient evidence.
See 28 C.F.R. § 541.3 (Ta-
ble 1). Lastly, because Gladney did not raise his vagueness argu-
ment before the District Court, we will not consider it now on
appeal.
See Access Now, 385 F.3d at 1331.
III.
Accordingly, the District Court’s denial of Gladney’s habe-
as petition is
AFFIRMED.
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