Court: Court of Appeals for the Seventh Circuit; December 6, 2009; Federal Appellate Court
Federal prisoner John Perotti lost 80 days of good time due to disciplinary actions for fighting another inmate and swearing at a staff member. He filed a petition for a writ of habeas corpus under 28 U.S.C. 2241, which was dismissed by the district court, and this judgment was affirmed. The first incident in November 2007 involved a confrontation where Perotti was charged with fighting and weapon possession. Although the reporting guard did not witness the fight, surveillance footage showed that the altercation was initiated by the other inmate, who swung a broomstick at Perotti. Perotti retaliated and later chased the inmate with homemade knives (shanks). He sustained injuries including bruises and a fractured arm. At the disciplinary hearing, Perotti was sanctioned with a total of 67 days lost for the incidents, despite his representative's failure to assist him properly and the inability to review the surveillance footage. In a rehearing, Perotti maintained he acted in self-defense, but the hearing officer, having reviewed the footage, upheld the sanctions.
In February 2008, Perotti faced an insolence charge for allegedly swearing at a counselor. The hearing officer for this charge, unaware that the same representative was assigned for both hearings, refused to postpone the hearing despite the representative's lack of preparation. Perotti's request for the hearing officer's recusal was also denied due to a prior, dismissed report against him by the officer's spouse. The hearing officer found Perotti guilty, resulting in an additional 13 days of good time lost.
The court reviews the district court's denial of Perotti's 2241 petition de novo. Federal inmates possess a liberty interest in earned good time, necessitating due process before revocation, which includes advance written notice of charges, an opportunity to present evidence to an impartial decisionmaker, and a written explanation supported by "some evidence". Perotti claims due process violations regarding fighting and weapons charges, arguing he was denied access to surveillance footage and the ability to contact witnesses. However, limitations on evidence access are permissible if they serve institutional safety or are deemed irrelevant. The evidence Perotti sought would not substantiate his self-defense claim; the hearing officer noted that regardless of who initiated the fight, Perotti's subsequent actions were not purely defensive. Additionally, the hearing officer's conclusion that Perotti possessed a weapon was supported by surveillance footage, contradicting Perotti's assertion that he only had rolled-up magazines. The court finds no merit in Perotti’s claims regarding the handling of evidence or witness testimony, as he failed to establish how further access would have altered the outcome, and his claim about witness testimony did not align with his arguments in the administrative proceedings.
Perotti initially claimed that witnesses would support his self-defense argument, but the government contended that witnesses in Bureau of Prisons (BOP) custody assigned to halfway houses were not required to be available for testimony or written statements. The regulatory framework indicates that hearing officers should call "reasonably available" witnesses and request statements from those unavailable (28 C.F.R. 541.17(c)). Case law, including Moscato v. Federal Bureau of Prisons and Forbes v. Trigg, suggests that categorically deeming transferred witnesses as "unavailable" is problematic. However, the court decided not to address the government's responsibilities on this issue, as Perotti cannot redefine witness testimony to strengthen his 2241 petition.
Regarding the disciplinary hearing for an insolence charge, the district court did not consider Perotti's specific arguments, but the appellate court found the record sufficient for review without remanding the case. Perotti's main argument is that the hearing officer was biased due to a previous, unfounded insolence charge filed against him by the officer's wife. While an impartial decision-maker is a due process requirement, the standard for proving bias is high, and the hearing officer is presumed honest unless proven otherwise. The court noted that involvement in past disciplinary actions does not automatically imply bias.
Perotti also claimed ineffective assistance from his staff advocate, citing a BOP regulation that allows for adequate preparation time. However, the hearing officer has discretion over the necessity of such preparation, and there was no evidence that the officer's decision was improper. Perotti did not show he was prevented from gathering evidence or identify specific witnesses for the advocate to consult.
Lastly, Perotti claimed he did not receive a written decision on the insolence charge, which is required by law (Wolff v. McDonnell). Despite this, the issue was not pursued on appeal, so the court did not consider its potential impact. The court affirmed the district court’s decision.
